On Jan. 3, 2021, a group of Justice Department officials met in the Oval Office to resolve a critical dispute within President Donald Trump\u2019s administration.<\/p>\n
William P. Barr had stepped down as attorney general two weeks before and Trump wasn\u2019t happy with Jeffrey Rosen, the acting attorney general. Trump was considering booting Rosen in favor of Jeffrey Clark, an environmental lawyer within the Justice Department who was eagerly amplifying Trump\u2019s allegations that the 2020 presidential election had been stolen.<\/p>\n
Trump criticized Rosen for not being willing to use the department to aid his efforts to retain power. Rosen insisted that doing so would run afoul of the law and the Constitution. So, pulling a cavalry sword off the wall, Trump cut off his arms.<\/p>\n
Not really! While all the rest of this scenario occurred, the part about the sword didn\u2019t. If it had, though, good news for Trump: Under the standard set by the Supreme Court on Monday, he probably could not have been held criminally liable for having dismembered his acting attorney general.<\/p>\n
In the wake of the court\u2019s decision in Trump v. United States, the case that determined presidents had broad immunity from prosecution for official acts, one hypothetical has captured the public\u2019s imagination. It was the one articulated in Justice Sonia Sotomayor\u2019s dissent.<\/p>\n
\u201cWhen [the president] uses his official powers in any way, under the majority\u2019s reasoning, he now will be insulated from criminal prosecution,\u201d she wrote. \u201cOrders the Navy\u2019s Seal Team 6 to assassinate a political rival? Immune.\u201d<\/p>\n
Sotomayor didn\u2019t invent this particular scenario, mind you. During oral arguments in the case, she asked an attorney representing the former president if a chief executive \u201cdecides that his rival is a corrupt person and he orders the military or orders someone to assassinate him,\u201d whether that was an official act that deserved immunity. The attorney said that it \u201ccould well be an official act.\u201d It was Justice Samuel Alito who, a bit later in the conversation, introduced the idea that the theoretical assassins would be members of Seal Team 6.<\/p>\n
In an interview on Fox News Monday, Barr himself rejected this hypothetical, saying it \u201cmakes no sense whatsoever.\u201d<\/p>\n
\u201cThe president has the authority to defend the country against foreign enemies, armed conflict and so forth,\u201d he stated. \u201cHe has the authority to direct the justice system against criminals at home. He doesn\u2019t have authority to go and assassinate people.\u201d<\/p>\n
\u201cWhether he uses the SEAL team or a private hit man, it doesn\u2019t matter,\u201d Barr continued. \u201cIt doesn\u2019t make it a carrying out of his authority. So, all these horror stories really are false.\u201d<\/p>\n
Except they aren\u2019t.<\/p>\n
In her concurring dissent, Justice Ketanji Brown Jackson specifically articulated a scenario that would presumably render a president immune from prosecution. In broad strokes, it mirrors that Oval Office debate from 2021, centering on the president\u2019s obvious power to oust Cabinet officials from their positions.<\/p>\n
\u201cWhile the President may have the authority to decide to remove the Attorney General, for example,\u201d Jackson wrote, \u201cthe question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.\u201d<\/p>\n
The distinction being drawn, she continued, was between presidential power and the manner in which that power was exercised. Send a tweet firing him or poison him. Or chop off his arms so he resigns of his own accord. All just a president doing president stuff in different ways.<\/p>\n
Barr\u2019s argument is that a president can\u2019t simply deploy a SEAL team to go kill someone. But, of course, a president can do that. Barack Obama sent a SEAL team to kill Osama bin Laden in 2011.<\/p>\n
Before doing so, a team of government attorneys got together to assess the legality of the move and to establish legal arguments that could be presented after the fact, should the action be questioned. The Supreme Court\u2019s decision on Monday would have obviated some of that, because there would have been fewer possible legal questions stemming from the decision. After the successful operation, though, few such questions arose.<\/p>\n
Obama entered more fraught terrain when he approved the killing of an American citizen in a drone strike that same year. That the citizen, Anwar al-Awlaki, had worked with al-Qaeda meant that he was a viable target under the terms of the authorization of force passed after the Sept. 11 attack, according to a government memo prepared before the strike. The killing kicked off a furious debate about the boundaries of presidential power.<\/p>\n
The method of each killing was beside the point. It was the determination that the person could be killed that mattered. If a president made a national security argument for the removal of an opponent, the method theoretically wouldn\u2019t matter for immunity purposes any more than the means of getting a problematic attorney general out of the way would. Barr scoffs at the hypothetical since using a SEAL team \u201cdoesn\u2019t make it a carrying out of his authority.\u201d But the issue is that the killing could theoretically be brought into the scope of authority, rendering the method, again, beside the point.<\/p>\n
Would Trump and his loyal staff stretch his power to effect his will? Would he, say, assert that his opponents had committed treason, a capital crime? Could he find staffers who would support those efforts? A judge or judges who would side with him? Uh, yes. See his speeches or social media posts. See the example above, involving Jeffrey Clark and the 2020 election. See what unfolded after the 2020 election.<\/p>\n
And see the decision in Trump v. United States, which was predicated on Trump\u2019s federal indictment for having tried to overturn the election. His effort to put Clark into position in the Justice Department, in fact, was referenced indirectly in Chief Justice John G. Roberts Jr.\u2019s majority opinion as excusable.<\/p>\n
Had he attempted to make that transition of power more feasible by attacking disagreeing government officials with a katana \u2014 or, say, by summoning Seal Team 6 to the Oval Office to intimidate Rosen and others? Well, that\u2019s just a president doing president stuff, isn\u2019t it?<\/p>\n<\/p>\n
On Jan. 3, 2021, a group of Justice Department officials met in the Oval Office to resolve a critical dispute within President Donald Trump\u2019s administration. William P. Barr had stepped down as attorney general two weeks before and Trump wasn\u2019t happy with Jeffrey Rosen, the acting attorney general. Trump was considering booting Rosen in favor […]<\/p>\n","protected":false},"author":0,"featured_media":5802,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-5801","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/5801","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/comments?post=5801"}],"version-history":[{"count":0,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/5801\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media\/5802"}],"wp:attachment":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media?parent=5801"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/categories?post=5801"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/tags?post=5801"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}