I'm still reading the opinion in Trump v United States, but here is the early take of one random non-practicing lawyer on the Internet:

1. POTUS has total immunity when exercising the powers the Constitution explicitly grants the President (like issuing pardons). Okay, but Roberts's explanation comes very close to saying "anything the President does to carry out these powers cannot be a crime," which can't be right. 1/

If your official act as Commander in Chief is to line up our troops against a wall and shoot them all, that can't not be a crime just because POTUS gave the order. Or if POTUS orders troops quartered in civilian homes, that has to still be a 3rd Amendment violation. It's not a Constitutional right if this one guy can pretend it doesn't exist. 2/

2. POTUS has "presumptive immunity" for non-core official acts. Which okay this is a thing for a lot of government officials. It basically means courts have to assume you're immune unless the prosecutor can convince them otherwise. Reasonable people can differ on whether it SHOULD exist, but it DOES.

The problem is that for POTUS, it throws the entire process into chaos because we have no standards for measuring this. 3/

2a. SCOTUS, realizing we have no standards, TAKES IT UPON ITSELF TO INVENT SOME OUT OF FUCKING NOWHERE BASED ON HOW THEY WANT TRUMP'S JAN 6 CASE TO END.

This is not how our courts are supposed to work. Those standards should be articulated AT TRIAL, where the judge has the complete record in front of them, has heard witnesses in person, etc. Not by six assholes writing fanfiction. 4/

3. There is no immunity for unofficial acts. Seems generally correct but I'm sure Roberts will infuriate me in his explanation somehow. 5/

Re: #1 - ask your racist uncle if he'd be okay with Obama taking all his guns because it's not a 2nd Amendment violation if the President gives the order. 6/

I want to underscore that, in conjunction with Project 2025's plan to reclassify most agency employees as political appointees, this decision is very, VERY bad. It hands a HUGE amount of power to one person. ONE.

I don't care if that person shares your politics or not. ONE person is not meant to have that much power in our system. No one person should have that much power in ANY system. 7/

The fact that Roberts sometimes writes as if Trump is currently President or he has forgotten Trump is not currently President cannot be coincidental. 8/

"Indeed, if presumptive protection for the President is necessary to enable the “effective discharge” of his powers when a prosecutor merely seeks evidence of his official papers and communications, id., at 711, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions."

This is not reasoning. This is bullshit. 9/

"Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law."

There it is. SCOTUS fully intends that if POTUS does it, it is not illegal (unless there is absolutely no possible argument the act was "official," whatever that means). 10/

It. Gets. Worse.

Roberts explicitly argues that because criminal prosecution is an Executive Branch function (true), any POTUS attempt to investigate or prosecute anyone is immune from scrutiny as an official core function of the executive.

The President may "go after" anyone they like, and we the people can do nothing to stop it.

This is terrifying. 11/

Re #3 - Roberts infuriates me by continually referring to what the President believes is best for the nation, despite explicitly stating we cannot consider the President's intent when determining whether he has immunity.

Can't discuss intent to find he DOESN'T have immunity, but Roberts will happily discuss it to find he DOES have immunity. 12/

Again: I don't care how much you or I or anyone else approves or does not approve of any particular President, past, present or future. The Presidency itself CANNOT run like this in a functioning democracy. IT CANNOT. THOSE TWO THINGS ARE NOT COMPATIBLE.

Like Justice Sotomayor, I fear for our country. 13/

Roberts: "the principal dissent suggests that there is an “established understanding” that “former Presidents are answerable to the criminal law for their official acts.” Post, at 9. Conspicuously absent is mention of the fact that since the founding, no President has ever faced criminal charges—let alone for his conduct in office."

This is so sloppy it disgusts me. This is a literal child's argument. "Well you never punished us for stealing cookies before!" when kids never stole before. 14/

Roberts: "The dissents’ positions in the end boil down to ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the President “feels empowered to violate federal criminal law.”

This is straight up gaslighting of the crazy bitches who be crazy amirite. (N.b. Amy Coney Barrett did not join this section of the opinion.) "Extreme hypotheticals" like *checks notes* what already happened. 15/

Roberts' gloves come off at the end. He lashes out at the dissent for not falling in line and makes it very clear he thinks the problem is not a President who can do whatever tf he likes but courts who think Presidents should be subject to the same laws as the rest of us. How dare anyone prosecute his most favorite special boy.

Does Trump have something on Roberts? Or does Roberts just really love the taste of boot? 16/

Thomas: "Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts."

Unless it was prosecuting you for yours, I'm sure. 🙄 17/

FUCK. SAKE.

Thomas repeats the right wing conspiracy theory that the Constitution doesn't explicitly mention special counsel so we can't have one. 18/

Love watching Sotomayor feed this majority its own bullshit.

"This official-acts immunity has “no firm grounding in constitutional text, history, or precedent.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 280 (2022). Indeed, those “standard grounds for constitutional decisionmaking,” id., at 279, all point in the opposite direction." 19/

Sotomayor: "The majority calls for a “careful assessment of the scope of Presidential power under the Constitution.” Ante, at 5. For the majority, that “careful assessment” does not involve the Constitution’s text. I would start there."

SNERK

FYI, Barrett did not join the section of the opinion that argues that Presidents cannot even be brought to court to discuss whether they have immunity for official acts in their core duties. She (rightly) points out that courts can still do an analysis even if the answer turns out to be "this is a core duty."

Almost like women have a longstanding special relationship with being ruled by despots. 20/

Sotomayor does the analysis any first year law student would get failed for not doing.

1. Is it in the text of the Constitution?
2. If no, is there evidence the Framers could have put it there if they meant to (and thus may have left it out on purpose)?
3. Does anything else in the text otherwise support this argument? 21/

The answers, btw, are painfully obvious, which is probably why the majority skipped this part entirely.

The court's radical right are so high on their own supply it's dangerous. 22/

In this case, the answers are:

1. No.
2. Yes; several states shielded their chief executives from prosecution for official duties.
3. Yes; the Speech and Debate Clause provides immunity to Congress for things said in the course of their duties (except for treason and felonies), so the Framers likely could have given that same power to the President if they wished. 23/

If you want to cite The Federalist to your racist uncle re the immunity decision, the one you are looking for is Federalist 69 (nice), in which Hamilton argues that former presidents would be “liable to prosecution and punishment in the ordinary course of law.” 24/

Sotomayor: "This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law."

In case you were wondering if "originalists" (a) can make history say whatever they want and (b) will happily yeet their "principled analysis" the moment it becomes inconvenient. 25/

Sotomayor makes a point that slipped past me: By saying a President's intent can't be examined, the majority has made him de facto immune to most criminal charges. All but "strict liability" crimes require some element of intent (from negligence up to intentional acts). This too is a privilege no other person in the US enjoys. 26/

Sotomayor: "one wonders why requiring some small amount of [the President's] attention (or his legal advisers’ attention) to go towards complying with federal criminal law is such a great burden."

Savage. 27/

Sotomayor: "There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity."

The court that reverses this case is just going to issue an opinion that says "Actually, everything Justice Sotomayor says is correct." 28/

"Separate from its official-acts immunity, the majority recognizes absolute immunity for “conduct within [the President’s] exclusive sphere of constitutional authority.” Ante, at 9. Feel free to skip over those pages of the majority’s opinion."

🤣 Seriously though! 29/

To be clear:

1. We don't talk about Bruno.
2. We don't talk about presidential intent.
3. We don't talk about crimes for which the President has immunity EVEN WHEN that discussion is relevant to crimes for which the President does not have immunity.
4. YOU DO NOT TALK ABOUT FIGHT CLUB!

(3 will prevent Trump being prosecuted for things like inciting a riot because it was linked to his "official concerns" about the "legitimacy" of the election.) 30/

In case you need an analogy: This is as if someone has immunity for an arson charge but not an insurance fraud charge.

Normally you could be like "he committed arson, we can't charge him for it, but the reason he did it was insurance fraud that we can charge him for."

But if he's POTUS, it's "we are charging you with insurance fraud for...

...."

Can't prove the case without the arson, you have no case. 31/

Justice Jackson and Justice Sotomayor clearly split what they saw as one dissent into two piles of work, which seems to be a smart move.

Most people will find Jackson's pretty dry compared to Sotomayor's, but she has a scholarly precision that should make every law professor in the country ashamed to teach the majority's ruling with anything but cold contempt.

It won't, but it should. 32/

I wish I could be as innocent as I was when I started this thread. Back when I assumed surely SCOTUS would not create a special category solely for the President that shields him from criminal case steps that all the rest of us must face.

Oh, you sweet summer child. 33/

Yeah, it is VERY obvious that Sotomayor wrote for the public and Jackson wrote for the lawyers and policymakers, and I am HERE for this division of labor by audience. 34/

Jackson points out something else I missed on first rage-read: We now have to figure out if an act was "official" or "unofficial" *without reference to the President's intent.*

...HOW 35/

Jackson: "Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup, has a fair shot at getting immunity under the majority’s new Presidential accountability model. That is because whether a President’s conduct will subject him to criminal liability turns on the court’s evaluation of a variety of factors related to the character of that particular act...(minus motive)." 36/

Notably, the majority does not address this problem.

I WONDER WHY.

I

WONDER

WHY

37/