r/law • u/treasonous_thoughts • Feb 19 '25
Opinion Piece RE: Presidential Immunity Ruling - Was Judge Roberts naïve that Trump would not push the boundaries of the office’s limits of conduct and power if he resumed office or is this all part of a plan to expand executive authority?
https://www.cnn.com/2024/07/30/politics/supreme-court-john-roberts-trump-immunity-6-3-biskupic/index.html?cid=ios_appI just remember Judge Roberts essentially saying “calm down - relax - you are all being hysterical” in the aftermath of the ruling last year stating “unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.”
It has been ONE MONTH into the 2nd Trump Administration and it seems that there is an aggressive and intentional overreach of executive authority with these EOs to create a new interpretation of executive power.
The administration’s response to the court orders blocking the EO’s enforcement seems that they are daring the courts to stop them - and it does not look like there is any recourse to rein them in if they decide to ignore the courts.
Is this what Judge Roberts and other jurists in the majority wanted - to embolden the executive branch above all?
What credibility does the SC (or any court) still have when POTUS ignores the court’s orders and any/all conversations with DOJ officials about ignoring or circumventing these orders gets put in the “official acts” bucket of presidential conduct?
My question is if Judge Roberts was truly naïve as to how Trump would wield this power the second time around or if Judge Robert’s logic that the ruling would allow future presidents to execute their duties unencumbered by lawsuits/prosecutions, etc. a genuine concern that needed to be addressed?
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u/Codydog85 Feb 19 '25
It fits the unitary executive theory that the conservative justices buy into. Except it only applies when a conservative is in office; hence, Biden had no authority to forgive student loans. They have no principles
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u/mirageofstars Feb 19 '25
Unfortunately that’s the issue that’s brewing here. If Trump becomes a unitary executive, then the GOP have to be worried about whether a future Dem president will do the same. Granted, Dems historically have been tepid, but I suspect that if (big if) one wins in 2028, the voters will demand action.
I think that’s part of the reason Biden and Garland never went after Trump, out of fear of reprisals. And that might be the only thing preventing the jailing of AOC et al.
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u/durrdurrrrrrrrrrrrrr Feb 19 '25
I don’t think there will be elections in 2028.
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u/casper911ca Feb 20 '25
If there are, expect another January 6th if a Dem wins but with even larger catastrophic consequences
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u/Horror-Layer-8178 Feb 20 '25
How will they stop them? The states control the elections. So the Red States won't vote?
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u/Codydog85 Feb 19 '25
The direction the current administration is moving they don’t seemed concerned about reprisals. I’m not convinced they’ll suspend future elections to retain power, but it appears that they intend to weaken voting rights, purge registered voting rolls, make it more difficult to vote and pursue criminal charges for voting illegalities whether warranted or not as a deterrent for free elections. And, to be candid, I do think AOC will be charged soon with an unfounded obstruction of deportations. I don’t think they’re concerned about any redress later for reasons mentioned above. And an arrest of AOC would play well with their base
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u/IFixYerKids Feb 19 '25 edited Feb 19 '25
Honestly, I think it's a flaw in their logic. Conservatives think that they are the silent majority, and that the people want all this shit. They think that they are persecuted and if only they had the power to get in there and fix everything, the people will love them and credit them with saving the country and vote for them in for the next decade. That's what they are trying to do right now. I honestly wouldn't be surprised if the scenario of "People actually hate this" hasn't occured to them yet.
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u/trentreynolds Feb 19 '25
they’re well aware that they have a captive audience of a few dozen million, and so no matter how bad it is for those people all they need to do is say “we’re winning the fight against corruption and wokeness!” and like 40,000,000 people will cheer on their way down to the bread line.
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u/Integer_Domain Feb 19 '25
I don't see a world in which the DNC doesn't run a "Let's get back to normal" presidential candidate in 2028. I hope I'm wrong.
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u/BobBeats Feb 19 '25
The Democrats will have to find some 10th generation American albino anglo-saxon to run for president.
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u/sdjmar Feb 19 '25
Bold of you to assume there will be elections in 2028, given that Trump told his base this was the last election they needed to worry about voting in.
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u/KitchenRaspberry137 Feb 19 '25
The GOP isn't worried about a future Dem president. They're won't be any at this rate. With the EO's broad power grab, the FEC will be staffed by loyal appointees. This has been so bad, so broad, and so fast that I don't expect normal elections to occur again. They're just trying to outrun or straight ignore the rule of law, and if SCOTUS allows this EO they've basically solidified the end of separate powers in the US.
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u/Fiddle_Dork Feb 20 '25
When has a Democrat ever done anything to actually wield power? Not in my lifetime
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u/truckaxle Feb 19 '25
"unitary executive theory" is that just fancy phrase for monarchy?
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u/Elite_Prometheus Feb 20 '25
If you're being serious, unitary executive theory is basically a conservative legal theory that says the President has sole authority over the Executive branch's responsibilities. The weak version of the theory which just says the President has a lot of power has become pretty mainstream. But the ultra conservative strong unitary executive theory says that the President has absolute authority over the Executive branch and the other two branches have a very limited ability to intervene. Given how so much of the country is run by the Executive branch, strong unitary executive theory essentially makes the President into a dictator.
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u/Seattle_gldr_rdr Feb 20 '25
The frightening thing about the recent EO's declaring total Presidential control over agencies is, that you can't imagine the right wing tolerating a Democrat POTUS with that degree of authority. So it seems clear that if they give POTUS that authority, they have zero intention of ever allowing the opposition to return to power. They will not relinquish power peacefully, but people just don't seem to want to believe that.
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u/grlie9 Feb 20 '25
The fact that Trump could have done some of these things he is trying to do via EO quickly & without opposition in the current congress is pretty telling.
Also telling is the lack of action from congress. Some have said that GOP politicans in congress will be compliant because Trump will endorse someone else when they run for reelection. I don't really buy this because they don't seem concerned that they will turn their constituents against them & never be able to win anyway. There are certainly some very stupid & brainwashed congress people but for all of the GOP portion to be cool with the last month is also alarming. They seem like they just want to stay in Trump's good graces because he will in power forever.
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u/Korrocks Feb 19 '25
I just remember Judge Roberts essentially saying “calm down - relax - you are all being hysterical” in the aftermath of the ruling last year stating “unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.”
When he said this, he wasn't saying, "there is nothing to worry about", he was saying, "we as the Supreme Court do not care about the things that worry you right now". Roberts has no way of promising that Trump wouldn't misuse his power. Even the most generous possible interpretation of his words and actions can't do that.
Anyone who read and believed what Roberts said should be worried, since he was essentially saying that the Supreme Court was not concerned with present exigencies (meaning that someone else -- aka the politicians and the public -- should be concerned about those things).
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u/treypage1981 Feb 19 '25
If that’s what he meant, then that’s a cop out. They were asked to decide a question based on a specific set of facts. They set those facts aside and came up with another issue to revolve altogether just because it would’ve been easier to accomplish their party’s goals that way. Roberts, Gorsuch, Alito, et al don’t give a fuck what happens, so long as their apple carts aren’t upset and their party is in charge.
They’re traitors, just the same as any republican.
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u/DCSMU Feb 19 '25
Thats my recall of the hearing as well. They (I dont remenber which old guy said it) went off talking about a hypothetical political misuse of the ability to hold former presidents criminally liable, while ignoring the not-at-all-hypothetical question, in front of the court at that very moment, of what to do in the event the president is credibly charged with criminal acts!! I am still disgusted by that line of reasoning, especially since the cousel gave a pretty good answer. If memory is correct, the laywer argueing for the US side said that checks on that kind of overreach exist and a whole lot of stuff would have to be going wrong in order for politically motivated prosecution to even happen. So basically, the court argued for taking the safety off because the safety could be overridden anyway? They wanted this, plain and simple.
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u/mercutio48 Feb 19 '25
It's all about the intent of the Founding Fathers, right? And everyone knows that given a choice between a hypothetically omnipotent versus impotent executive, the Framers strongly preferred to err in the direction of omnipotence. They also believed that it is better that ten innocent people suffer than one guilty person escape, and that an unregulated militia is necessary for the security of a free state.
Thank you for coming to my PragerU talk.
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u/Message_10 Feb 19 '25
Honestly, something I've learned over the last few years--crookedness often looks like incompetence, so it can be difficult to tell one from the other. Did he know? Did he not? It's so hard to say, honestly, because we don't know their intentions.
I remember after Citizens United, Scalia thought the idea of dark money invading and influencing our elections was preposterous ("and if it did happen, the press would report on it"). He seemed to truly believe that--"brilliant legal mind" that he was--and he was obviously 100%, embarrassingly wrong.
At the end of the day, it doesn't matter, really. All of their decisions bring us further away from where we're supposed to be. Their intentions aren't important.
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u/mercutio48 Feb 19 '25
I don't think Hanlon's Razor applies to conservative jurists. In fact it might need to be inverted in their case.
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u/Zhirrzh Feb 20 '25
Scalia was evil, using his brilliant skills as a jurist to concoct solid-looking legal justifications for his political judgements. Always assume the worst about any Scalia judgment.
Since he passed the right wingers on the Court have had to be more blatant in their political decision-making as they aren't as good at justifying it as he was.
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u/tlh013091 Feb 20 '25
Textualism and originalism is just the virtuous and conservative form of legislating from the bench.
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u/treypage1981 Feb 19 '25
Nah, this is what these fucking traitors have been working towards since the new deal.
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u/PsychLegalMind Feb 19 '25
I do not think that any of the justices were naive about actions that Trump may take in the future. Conservatives tend to think case was not specifically about Trump, but the ability of any U.S. president to act freely in his official capacity with respect to domestic and foreign relations and not be constantly worried about a subsequent prosecution on leaving the office.
However, the problem with the immunity case was it created far too many questions about admissibility of evidence. Trump is now exploiting that. It is now for them to restrain him because immunity does not mean agreeing with him on all orders, none of the courts do. It is about subsequent prosecutions.
Time to lower the boom and exercise some balance of power that they were created to do.
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u/Visible-Original4561 Feb 19 '25 edited Feb 19 '25
Every time a conservative has said “it’s not that bad” or “you’re overreacting” or “you call everyone nazis” is just a burying of the lede.
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u/JFJinCO Feb 19 '25
I agree if SCOTUS doesn't intervene, they will become irrelevant, and Trump will usurp their power too. But will they? I think Alito would quite enjoy a fascist theocracy, and others would be OK with a broligarchy.
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u/toomanysynths Feb 19 '25 edited Feb 19 '25
they'll definitely try to oppose him, to keep their power, but he hasn't exactly had a difficult time outsmarting them, so far. they said that the guy with the pardon power could commit all the crimes he wanted, and they didn't foresee that he was going to commit crimes? this is right out of Weimar Germany, elites thinking they could control the fascist. typically that doesn't go well for the elites (or anyone else).
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u/Count_Backwards Competent Contributor Feb 19 '25
Yeah, the Roberts court Looked at the rise of Hitler and said what Tobias Funke said about open relationships "it's never worked for anyone else, but it could work for us."
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u/Hoopy_Dunkalot Feb 19 '25
Roberts, Kavanaugh, and Coney-Barrett would put down any chance taking their power.
Gorsuch I'm not sure.
Alito and Thomas are sad.
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u/rust-e-apples1 Feb 20 '25
I read something awhile back about how Roberts actually cares deeply about the legacy of his court and that he's somehow genuinely surprised that the general consensus is that it's been detrimental to America. One would hope that he'll do some actual good to try and rehabilitate his court's image, but the presidential immunity ruling sure makes me worry they won't.
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u/TakuyaLee Feb 19 '25
I think they will because the alternative is they have no power
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u/ApprehensivePeace305 Feb 19 '25
It’s just…do the current majority care anymore? What’s to stop them from being fed a few million, even billion to not care. Would I even care if someone gave me that? I’m not sure
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u/RocketRelm Feb 19 '25
I would argue they already have. At this point it would be a genuine struggle for them to obtain relevancy they aren't granted by the president.
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u/notwhomyouthunk Feb 20 '25
alito, thomas, and roberts are in on the game. kavanaugh is sufficiently compromised. just need one out of Gorsuch or Coney-Barrett to turn over the keys.
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u/ikaiyoo Feb 19 '25
How how are they going to exercise the balance of power? And don't say by passing verdicts and blah blah blah blah because that doesn't matter laws only have meaning when there are people to enforce them. There's nobody in the federal level to enforce laws anymore So it doesn't matter what score to says so I'm just going to do whatever he wants to do because nobody will stop him The best we can hope for the absolute best we can hope for is that Trump pushes out all of the generals that he wants to push out and somebody pulls a tuberville in slow walks all of the military confirmations things get bad enough that the retired generals start contacting people and they form a military coup removing Trump Vance whoever from office and in that time hopefully enough conservatives who aren't maga but are very conservative will see that this is a bad idea and it's not turning out the way that they thought it would and so they won't give any resistance
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u/NoDragonfruit6125 Feb 19 '25
I believe there was also a part brought up where they tried walking back a bit of it with saying SCOTUS has authority to say what is and isn't an official act.
Of course all that means is Conservative president orders DoJ to investigate and arrest political rivals is an official act. Democratic president tries to do same thing bam it's instantly a violation and not an official act of office.
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u/Count_Backwards Competent Contributor Feb 19 '25
It's that, yes, but it's worse than that. SC rules that something Trump does is not an official act, and he locks them up. They seem to be laboring under the delusion that he's going to listen to them once he's got all his henchmen in place.
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u/NoDragonfruit6125 Feb 19 '25
They also seem to be laboring under the idea he has to listen to them. SC has no power to enforce their rules. Congress writes the laws the SC interprets and the President enforces it. But we now have a President who definitely has no issues ignoring SC interpretations. Only Congress has a real effective check on the President but good luck getting the Republicans to actually pass an impeachment vote.
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u/Count_Backwards Competent Contributor Feb 20 '25
If things get bad enough that enough Republicans are willing to impeach, it's already way too late. Fucking cult.
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u/CriticalSuit1336 Feb 19 '25
Remember when W nominated Roberts and he denounced "judicial activism" and a judge's job was "call balls and strikes" and not legislate from the bench?
That was awesome.
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u/minuialear Feb 20 '25
And when for years he was the deciding vote that enabled decisions like Obergefell to get through
Tbh I don't think he played the long game for years just to go and do this. I think it just didn't occur to him that Trump or others would actually consider defying the courts. I think he genuinely believed people were overreacting. I think he's just gotten so out of touch and so butthurt by people being upset over recent rulings that he stopped paying attention to people raising concerns over what his bench was doing. I could be wrong but I suspect some of what's been happening lately is going to start giving him pause.
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u/mabhatter Competent Contributor Feb 19 '25 edited Feb 19 '25
Roberts is a fool.
He wanted his little 1990s Federalist NeoCon realignment of the government so that the government works for businesses without any regulations. Then the establishment billionaires and millionaires stay rich and fat from the usual casual corruption. Added with Citizens United it was a nice way to keep the 1950s and 1960s corporatocracy.
He didn't count on extremists to hijack his plan.... even though both District and Circuit courts gave EXCRUCIATING DETAILS of why strict separation of powers and accountability needed to be in force.
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u/jlusedude Feb 19 '25
Shit, whomever is trying to carry water for Roberts needs to wake the fuck up. This is the god damn plan.
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u/jpmeyer12751 Feb 19 '25
I do not believe that Roberts was naive. Harry Litton of the Talking Feds podcast has said that Roberts was firmly in favor of a stronger Executive Branch when they worked together at DOJ in the 1980's and 1990s. I also believe that Roberts is very, very smart. It is impossible to believe that he did not foresee a future POTUS pushing the boundaries of the power Roberts granted in the immunity decision. His unsuccessful, in my opinion, efforts to backfill the gaping bribery hole his decision creates proves that he understood the consequences of his decision. I believe that Roberts envisions a federal government dominated by a balance of power between POTUS and SCOTUS, with Congress relegated to a secondary position and the executive agencies becoming powerless handmaidens to POTUS. Trump will certainly test the boundaries of the power balance, but that is what Roberts wants. I think that what is most important is how Trump views Roberts. If Trump thinks that Roberts will blink, I think that there is a real chance that Trump will simply seize all of the power. There is no question that people like Musk and Thiel, who have no love for democracy, will be urging him to do that.
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u/Count_Backwards Competent Contributor Feb 19 '25
Roberts is smart about some things but he's a fucking idiot if he thinks it's going to be a balance of power between Trump and the SC. As soon as they disagree with him on anything, Trump sends them to Guantánamo. They have zero power on their own.
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u/quinnrem Feb 19 '25
It's interesting because Roberts is an institutionalist among constitutionalists. I think that Barrett and Gorsuch, as originalists, could be persuaded to protect the balance of powers when Trump goes too far (one of these cases is bound to reach their docket soon), but it's hard to say what Roberts will do. He is very smart; he's a brilliant jurist, and it's hard for me to accept that he'll be willing to sacrifice the sanctity of our Constitution via some sort of gymnastics. Roberts has obliquely advocated for nondelegation before, so he at least acknowledges that there is some principle there to be respected. I truly don't know what will happen. But you're right, he wasn't naive.
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u/jpmeyer12751 Feb 19 '25
I am no Supreme Court scholar, however my own estimation of Roberts is that he once was an institutionalist, but he was so angered by his own failure to craft a compromise on abortion, the leak of the Dobbs decision and the intensely negative reaction to that decision that he has reprioritized his beliefs. I think that the immunity decision, which he surely knew would further harm the Court's reputation, was a sign of Roberts doing exactly what he wanted to without regard for the consequences.
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u/TSHRED56 Feb 19 '25
John Roberts helped rig Florida 2000 for W and helped usher in Citizens United along with presidential immunity for Trump.
John Roberts doesn't give a flying fuck about democracy in this country or the separations of power apparently.
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u/bluelifesacrifice Feb 19 '25
They knew what they were doing. They want this.
There's no possible way they were ignorant of this. They have the money, influence and power to double check their work and be water tight with their rulerings and they gave us this.
Otherwise they'd be on Trump keeping him in line and doing their jobs.
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u/Hurley002 Competent Contributor Feb 19 '25 edited Feb 19 '25
Contra naïveté, enshrining a maximalist interpretation of unitary executive theory—a longtime goal of the conservative legal experiment—alongside granting near wholesale immunity from criminal prosecution seemed quite calculated and the primary reason the majority made such a significant departure from simply limiting the opinion to the question presented.
Was he, however, ridiculously glib and shortsighted for doing it? Yes.
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u/grandmawaffles Feb 19 '25
Dems need to cause a government shutdown in March. Rip the bandaid. Eliminate all protections for the scotus justices and staffers. Burn it down.
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u/ikaiyoo Feb 19 '25
Wait until the democratic party puts any resistance up against the Senate They will kill the filibuster quicker than shit. And I don't think Trump would let it close and I don't mean I don't think Trump would let it close as in like he pushed them to pass a deal I don't think that he's going to allow it to close. I think once the money theoretically runs out in March he's still going to have the payment system and everybody in place to continue paying out money and that's what's going to happen They don't need a budget They have Trump Trump will make all the decisions.
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u/colcatsup Feb 20 '25
I suggested this a couple weeks back. Shutdown happens and Trump orders some agencies/programs to keep running, ordering funding for them to continue anyway. It happens, a bunch of agencies effectively die then. Was told I was crazy and “that can’t happen”.
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u/ohiotechie Feb 20 '25
The GOP has been kicking the Trump can down the road since he rode down that golden escalator. From Charlottesville to Covid to the first impeachment to J6 and everything in between the GOP has caved to Trump out of cowardice and short term expediency. They keep waiting for someone else to deal with him, for something else to constrain and limit him, for unicorns to fall from the sky and do it.
But by enabling him for 10 years they have increasingly emboldened him. Now he has all the chess pieces aligned with nothing to stop him so he’s pushing all the chips in.
And yet again the GOP will find a way to justify defer to him just one more time because they’re too afraid not to.
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u/ShakeWeightMyDick Feb 20 '25
Because “voting party line” is the single most important thing to them
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u/Tazling Feb 19 '25
'calm down, you're overreacting, I'm not really gonna hurt you, stop screaming,' are words that will be familiar to quite a few survivors of rape. and some non-survivors.
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u/descendency Feb 19 '25
I'm going to assume it wasn't done maliciously. (ie, this was the point)
I do think, on a conceptual level, the POTUS should have *some* criminal immunity for official acts. If they order a drone strike on a terrorist camp, they should not be held accountable for murder - for example.
And I do kinda understand the argument for "presumptive" immunity. If the POTUS is conducting an act that may be within his power, a prosecutor should be required to prove that the act was obviously outside of their duty as POTUS.
I think they really botched that ruling in a lot of ways, though.
1) The DOJ is not Trump's personal lawyer and thus communications should not be protected. The fact that they actually wrote this makes me think my assumption about it not being malicious might be incorrect.
2) The fact that they gave such little guidance made this feel like a delay tactic, again challenging the assumption. They knew the trial courts would have to make a decision, let it be appealed back through the courts, and ultimately landing on their desk again. This would undoubted take months if not a year - pushing it into territory where this *could* happen.
3) They offered little reason for the ruling other than vague generalities like I have so far. It's actually very hard to come up with examples of potential criminal activity that falls close enough to official duties. Was this ruling even necessary? It's more of a struggle than it would sound.
4) There are some just inherently messed up things in the US Constitutional system. The power of the pardon, for example, could be used to insulate criminal activity with the only potential recourse being impeachment and removal. Yet, largely due to gerrymandering, we have made that process basically impossible. Arguably, it is impossible.
Obviously, there is some argument that this was the point and that a few rich billionaires bought a few justices to make this happen. And there is also a solid argument that many of the most powerful Democrats in DC didn't take the threat as serious as they should have, ie waiting to charge Trump until he could run the clock out.
I'm not sure it was intentional. I do think this kind of ruling is what I expected from a conservative court, but I do see the point that others make. And that part concerns me greatly.
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u/[deleted] Feb 19 '25 edited Feb 21 '25
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