SCOTUS’s Hallucination

During oral arguments in April, Trump’s attorney argued a president could order SEAL Team Six to assassinate his political rival and not be prosecuted if it could be considered an “official act.”

From a legal point of view, the argument made by Trump's attorney during the oral arguments in April raises significant concerns about the scope of presidential immunity. Let's break down the key legal concepts and implications:

 

Presidential Immunity

1. **Concept**: Presidential immunity refers to the legal doctrine that the President of the United States is immune from certain legal actions while in office. This is intended to allow the president to perform official duties without fear of constant litigation.

2. **Scope**: Traditionally, this immunity covers civil lawsuits related to official acts. However, it does not typically extend to actions taken outside the scope of official duties or to criminal behaviour.

 

Official Acts

1. **Definition**: An official act refers to actions taken by a president as part of their official duties. These are actions that are within the powers granted to the president by the Constitution and other laws.

2. **Controversy**: The argument by Trump's attorney suggests that almost any action taken by a sitting president could be considered an official act, potentially including extreme actions like ordering an assassination.

 

Legal Implications

1. **Extending Immunity**: If the Supreme Court were to accept the argument that a president could order something as extreme as an assassination and still be immune from prosecution because it is considered an official act, it would dramatically expand the scope of presidential immunity.

2. **Checks and Balances**: Such an expansion would challenge the foundational principle of checks and balances within the U.S. government. The president could potentially become above the law, undermining the judiciary's ability to hold the executive branch accountable.

3. **Rule of Law**: The rule of law, a core principle of democracy, holds that no one is above the law, including the president. Accepting this argument could set a precedent where the president has unchecked power, eroding democratic institutions and principles.

 

Precedents and Legal Boundaries

1. **Historical Precedents**: Historically, courts have recognized certain limits to presidential immunity. For example, in *Nixon v. Fitzgerald* (1982), the Supreme Court ruled that a president is immune from civil damages for official acts, but not for actions outside official duties.

2. **Criminal Acts**: The argument presented would blur the lines between official acts and criminal behaviour. While a president has broad executive powers, those powers do not traditionally extend to actions that are clearly criminal, such as assassination.

 

Potential Consequences

1. **Abuse of Power**: Granting such broad immunity could lead to abuses of power, where a president might engage in illegal activities without fear of legal repercussions.

2. **Erosion of Democratic Norms**: Democracy relies on accountability and the rule of law. If a president is perceived as being above the law, it can undermine public trust in democratic institutions and erode democratic norms.

 

Conclusion

In summary, the argument that a president could order an assassination as an "official act" and be immune from prosecution poses significant legal and constitutional challenges. It threatens to greatly expand the scope of presidential immunity, potentially leading to an abuse of power and undermining the principles of checks and balances and the rule of law that are fundamental to a functioning democracy.