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Immunity For Thee

Vance said that while he thinks presidents (read: Republicans) should have immunity, it would be up to future Attorney General to decide if Biden should be prosecuted for crimes. I think he undoubtedly speaks for the entire GOP on that. It won’t be hard for them to find a loophole that allows such a thing if Trump is in the driver’s seat.

Amanda Marcotte at Salon had a good piece on this today. An excerpt:

For all the people who are semi-joking that President Joe Biden now has a legal right to have the military assassinate Trump, Chief Justice John Roberts gave himself an out. Roberts insists that the president “is not above the law.” It can still be a crime if the court determines that the behavior falls outside of “his official acts.” But what makes something an official act? Well, that’s a little hazy, you see. As Los Angeles Times legal analyst Harry Litman noted on Twitter, the “test” appears to be whether a prosecution presents a serious “threat of intrusion on the authority and functions of the Executive Branch.” 

With the nakedly partisan tilt of this court, it’s not hard to see what would distinguish a legitimate vs. illegitimate intrusion on a president’s authority: his political party.

Biden orders a hit on a political enemy? That’s outrageous and therefore cannot be “official.” Trump orders a political assassination? Well, he must have had a good reason! As liberal Justice Ketanji Brown Jackson wrote in her dissent, “The official-versus-unofficial act distinction also seems both arbitrary and irrational.”

If that sounds hyperbolic, the context shows it is not. Last week, the conservative justices ruled that their opinions of scientific fact should overrule those of legitimate scientific or medical experts hired to work in federal agencies. But what makes something a “fact” in the eyes of the Republican justices was not evidence, but whether or not it fits their pre-existing policy preferences. For instance, in a related case overturning an environment regulation, Justice Neil Gorsuch repeatedly referenced in his decision “nitrous oxide,” which is laughing gas, instead of “nitrogen oxide,” the toxic emission that causes smog. Now something as concrete as the chemical composition of air pollutants can be legally redefined according to the wishes of a right-wing Supreme Court justice.

There is little hope for a fair or objective measure of what counts as an “official” or “unofficial” executive action. Republicans already speak and act generally as if a president can only be legitimate if he’s a member of their party. As Jamelle Bouie wrote in the New York Times on the eve of January 6, Republicans have embraced the view “that a Democrat has no right to hold power.” Whatever pretzel logic the Republican justices employ, the guiding principle of whether a criminal act is “immune” will likely depend on whether the president is a Republican or a Democrat. 

Of course it will. And anyone who is still laboring under the illusion that the Court is not a partisan institution needs to get their heads examined. Ever since 2000 we have seen them move inexorably in that direction and they have arrived. It is a Republican Court, an official arm of the party. And they have shown that when the chips are down they will deliver.

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