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Comment by asdff | Hacker News Reader

Can anyone pencil out the real danger of this position? Sotomayors opinion seems to posit that a president can receive a bribe and pardon someone for that and this is an official, immune act. However, I don't think soliciting a bribe would be considered an official act of the POTUS, and by what I have been able to understand from this opinion would still be subject to prosecution. I also think that this opinion seems to be exactly in line with existing legal precedent. Truman was never prosecuted for the massacres he presided on. Nixon was never prosecuted. Reagen was never prosecuted. We just don't seem to ever prosecute ex presidents at all whether we had this opinion to spell it out for us or not.

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The article explains this concern:

> One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.

Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.

So, imagine:

Prosecution: You took a bribe!

Defense: Bribe? No! It was just a gift.

Prosecution: It preceded the intended action, so it WAS a bribe.

Defense: What action?

Prosecution: Oops.

I would hope the law isn't so loose in interpretation where people could get away this easily with this looney tunes legal defense. For example I used to work in a public capacity and we couldn't even take gifts, so I would think the president couldn't just say they were gifted a huge yacht or something for a wink wink nudge nudge, or else it would have been done by now.

You should read their recent decision in a corruption case. There is a federal law for agents of government bodies or organizations that receive above a certain threshold of federal money, saying they can't accept or solicit bribes or rewards for official acts. The reasoning is federal money shouldn't be squandered on crooked deals.

A mayor gave a large contract to a local business owner who then gave the mayor $13,000 in gifts and "advisory" fees. SCOTUS said that was okay, because the mayor didn't explicitly agree to a "quid pro quo" bribery deal before giving out the contract. They jumped through hoops to avoid the "rewards" part of the law.

So if you get your old public position back, you might be able to reap some SCOTUS-blessed rewards.

It’s actually for state actors, not federal. I think it would have been problematic if giving your public school teacher a gift lands them in jail for 15 years.

Roberts attempts to address this in the majority opinion:

> JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.

It seems a little contradictory ("second-guess their propriety"? isn't that the point of a bribery indictment?), but the outline is clear, I think. Prosecutors are restricted from 'probing' the act (asking for records, testimony, etc. from the executive branch) but can use all evidence they otherwise would. The official act can be mentioned. Accepting the bribe is the prohibited, unofficial act for which the president enjoys no immunity from prosecution.

The issue is that this could prevent even opening up the discussion of whether a transaction was a bribe if the former president can claim it was an official act.

Nixon was never prosecuted because he was pardoned so the official acts stuff is moot. Crimes committed in war/putting down rebellion/etc are bad but more clearly within the scope of official acts than anything Trump is accused of.

Reagan, to the extent that he did/didn't coordinate with Iran to delay the hostage release, would be the closest parallel since it would have been a crime (Hatch act violation) in the direct pursuit of winning an election. But that was before he was president so this also wouldn't be relevant for today's ruling.

We don't prosecute ex presidents often because most of them either don't commit crimes or the ones they do are arguably part of the job. Trying to prevent the legitimate transfer of power is not close to a part of the job. The opposite in fact. Nixon only gets pardoned because he agrees to fuck off and spare the country the shitshow we currently have.

One danger, to quote Barrett's in-part concurrence (p.66 of the ruling) is:

> The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. [... citations ...] Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.

(I wanted to quote Barrett since she's a Trump-appointed justice.)

With the Court killing the Chevron Deference, they have given themselves all the power to decide what is an official act and what isn't. Anything not spelled out in plain terms will be interpreted by them and nothing is spelled in plain terms.

I though the chevron deference related to how federal orgs like e.g. the epa pen their own policy and trying to put that policy writing power back into the legislative branch vs through the executive who appoints these orgs? I am not educated in law and would like to clear up some of my misunderstanding.

So, this is about connecting the dots between different Supreme Court decisions.

Further reading...

https://harvardlawreview.org/forum/vol-136/the-imperial-supr...

This comment is a classic example of the ridiculous state of discourse around the Supreme Court right now on HN. So many people are trying to process legal theories through the amygdala and the result is a legal word soup that doesn't actually have any meaning.

Chevron deference has absolutely zero to do with this and never would have. I'd go deeper, but Brandolini's Law is real and I simply don't have the energy any more.

I'm certainly not law trained and open to being wrong so if you could find the energy I'm happy to listen. My reading of the situation is that the main confusion here is what constitutes an official act and a non-official act. With the removal of the Chevron Deference, all of the interpretation of ambiguous law now rest with the courts.

It's nothing about you personally, it's that this thread is filled with hundreds of bad takes and I actually can't keep up. The bullshit asymmetry principle is working hard today because actually doing the work of understanding the law takes time.

The short version is that Chevron was not a doctrine used in any and all cases where the law was ambiguous, it was always about whether an administrative agency's interpretation of the law was permissible. The subjects under consideration here do not fall under administrative law [0] and so Chevron would never have been relevant.

[0] https://www.law.cornell.edu/wex/administrative_law

Ok. My misunderstanding was that this only applied to an administrative agency's interpretation of the law. That is my mistake. However, I still believe that gives a pretty large latitude for abuse considering the GOP is openly antagonistic to many of these agencies like the IRS and FDA.

> I also think that this opinion seems to be exactly in line with existing legal precedent. Truman was never prosecuted for the massacres he presided on. Nixon was never prosecuted. Reagen was never prosecuted. We just don't seem to ever prosecute ex presidents at all whether we had this opinion to spell it out for us or not.

I think you are looking at this backwards. There was an unwritten agreement between the people and the Executive, namely, that we understand there are things that you might have done or had to do while President that to the ordinary person would be a crime and we will let you ride off into the sunset unbothered after you leave office, but in exchange for this, we expect there to be a peaceful transfer of power. We have entrusted this experiment in democracy to you, and when its time to go, you make sure it is passed on. Even Nixon did this.

There have always been contentious elections - some have ended up in the courts - but at the end of the day, a process was observed and followed. Donald Trump was the first President to not respect this unwritten agreement between the Office and the people. And now conservatives are doing what they always do: They are saying that we the people are not protected when the Executive doesn't hold up their end of the bargain, but that we are bound to uphold ours.

Trump is being prosecuted right now. That's what this case is about.

But he is being prosecuted for fraud not for an official act as president

He was prosecuted for fraud and he is also being prosecuted for things he did as president on January 6th and after his presidency.

And the court very specifically leaves open the possibility that he's guilty for his actions on January 6th if he was acting in his capacity as a candidate for office.

As they should, as that wasn't the issue before them.

The issue is he did many things also in his capacity as president

If it wasn't illegal, then what else is new? Republicans always try and twist the knife and get whatever profit seeking muck they can passed while they hold the reins.

But what he did on jan 6, asking people to break the law for him, is not an official act of the presidency, so that would still be prosecutable I would think.

Is it? I mean he was discussing it with his vice president and members of his cabinet.

If a president discusses with his cabinet how to fight a war in a way that is possibly illegal (and then orders it), that is an official act, executing illegal actions, and is immune.

What is the difference between that and preventing the transfer of power to your political opponent?

Especially since now parts of your activity's are "official" and cannot be mentioned in court, and part of your activities are not official which are potentially prosecutable, see Barrett's arguments.

Got to love it when supreme court creates all these exiting new laws.

I would assume an official act is something outlined in their description of their powers like the president appointing someone, and not just every word and action they do while holding the job as president. I wouldn't think him cussing after a shank during golf would be an official act as the POTUS for example, although I'm sure it happened thousands of times during his presidency.

I didn't think supreme court justices could take bribes. Yet they do, just from "friends" in the form of lavish vacations together and gifts to family.

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