(i'm not GP but...)
You've cited policy which blocks prosecution of sitting Presidents -- but that didn't necessarily enjoin eventual justice from being served after his term(s) end. However the outcome of Trump v. United States, 603 U.S. 593 (2024) appears to not just block prosecution but grant immunity, meaning what would normally be a crime ceases to even be a crime.
That ruling appears to draw a nearly complete shield of immunity around Presidents for any crimes done as 'official acts,' and nearly everything can be claimed to be an 'official act' especially given how vaguely-scoped much Presidential power has become. I consider it pretty unlikely that we'll ever see a former President even be charged with a crime if Congress doesn't explicitly repudiate this ruling with an actual law.
Source: https://en.wikipedia.org/wiki/Trump_v._United_States#:~:text...
> I consider it pretty unlikely that we'll ever see a former President even be charged with a crime...
You could have stopped the sentence here; most US presidents are responsible for acts that appear to be criminal but for the fact that it is political convention not to charge them. The most egregious case I recall was Anwar Al-Awlaki [0] - where he seems to have been killed on the president's orders without actually having done anything specific to justify it. Searching for "crime" on his Wikipedia page turns up nothing much. If a president isn't publicly investigated by the judicial system for having a US citizen killed it is hard to see when charges would be appropriate.
[0] https://en.wikipedia.org/wiki/Anwar_al-Awlaki
> where he seems to have been killed on the president's orders without actually having done anything specific to justify it.
This was an assaination as part of an armed conflict if i understand correctly.
There are a lot of things you can argue about with the morality of the drone strike program, but its at the very least grey. As a general rule, armed conflict involves killing people who have done nothing wrong other than being on the wrong side of the conflict.
Its possible it still might be a crime, but i think it would be on the standard of if its a war crime, and not an ordinary murder.
P.s. i dont understand what him being an american citizen has to do with it. Its not any more ok to kill non-citizens.
If you feel the US executive unilaterally assassinating a US citizen without even any particular accusation of a crime (while he was breakfasting, apparently) is clearly legal then that is cool, I just don't see what conditions would lead you to expecting the US president to be charged with a crime are. It is quite clear that unless he does something that the majority of Congress objects to there isn't going to be a prosecution, Trump v. United States, 603 U.S. 593 (2024) or otherwise. This is longstanding convention; if the president does something dodgy while in office it is broadly ignored by the legal system.
I think the accusation was that that person was a member of a non-state armed group that the united states was in an armed conflict with. There is certainly a bunch of grey area with that (given we are talking about a trans-national "war" against non-state entity, which is a bit out there legally), but at the same time i don't think its exactly out there as far as presidential powers go. Shooting at combatants during a war is a very normal state of affairs. Generally we assume such combatants have not done any crimes. The relavent question is if this person was a legal target (is he really a combatant), not if he comitted any crimes.
I mean sure. You're asserting a bunch of mitigating circumstances. The point of a trial is (its in the name) to test the evidence to see if it justifies a response. That step got skipped, so we can't really say if those mitigating circumstances are a good enough justification under the law.
If that is your standard then under what conditions is the US president going to be prosecuted for a crime? He or she will always claim there are mitigating circumstances and/or that they think their actions were legal. Nobody is going to stand up and say "oh gee, I've just done something clearly criminal!".
I suppose I'll put my challenge one more time just to be clear - if you feel the US executive unilaterally assassinating a US citizen without even any particular accusation of a crime is clearly legal, what conditions do you anticipate where the US president would be charged with a crime? While acting in an official capacity? The Trump decision codified it but the standard has been set for decades if not centuries - unless Congress gets involved there isn't going to be a prosecution.
Honestly i think its pretty clear the office of the us president has become king, Rex non potest peccare. So i do agree with your broad point.
I just mostly think this is a particularly bad example of executive ignoring laws - using military force in armed conflict is not usually considered a crime and certainly not unprecedented. It is in fact very, very precedented throughout the history of the united states. There are circumstances where it can be illegal (war crimes, crimes against hummanity, etc) but generally the justice system around that is quite different than normal domestic laws around murder.
I would contrast that with some of the accusations against trump which are much less wrapped up in armed conflict and very unambigiously crimes (if you want an older example i would say the same thing about watergate)
We've probably reached the point where I bow out. But, on a related note, was the US even officially involved in the armed conflict in Yemen? I don't think there is such a thing as a declaration of armed conflict and my memory is the drone strikes were being kept relatively secret-squirrel. Obviously at the time everyone knew they were involved but I don't recall how official it got.
Declerations of war are not really a thing anymore in international law. Its not like usa ever declared war on Vietnam, but it clearly was one. Ditto for the iraq war. And its not just USA either. Declerations of war more or less stopped being a thing after the UN charter was signed.
You're right that that makes it messy. The us wasn't engaged in an armed conflict with the state of yemen, but with a non-state armed actor operating within yemen (and elsewhere). (And its not like that isn't true right now either - america bombed houthi positions in yemen just a few weeks ago. Different group but still a non-state armed group i would consider america to be in an armed conflict with). A lot of the ways we think about wars and what is just and unjust implicitly assume two states fighting each other. Its much more ambigious with non-state armed actors.
I'm guessing if Trump conducted a drone strike on the US Congress and claimed that the Democrats were associated with the Houthi you'd say that was illegal (correct me if I'm wrong). Would you say the major difference is the attack happening on US soil or would you draw a different distinction?
I agree.
The story of Anwar Al-Awlaki and his American US-born son who was killed in the attack authorized by the Obama administration must not be forgotten.
The issue of presidential powers and conduct must be a non-partisan issue. Trump merely walked through the cracks created under Obama.
Being well-intentioned (“protecting Americans against terrorism”) is not sufficient excuse for murdering an American minor due to the sins of his father no matter how much the Obama administration DOJ attempted to make it legally permissible to do so.
<Trump merely walked through the cracks created under Obama.>
Which were dependent on the GWB administration (forced renditions, torture prisons), the Reagan administration (Iran-Contra etc), the Nixon Administration (Watergate etc), FDR's admin (concentration camps), on and on and on.
The expansion of Presidential power is non-partisan. Congress would be the logical counterbalance but other than in fits and starts has generally abdicated this role to the SCOTUS which has now been captured by believers in the unitary Presidency.
Did you actually read the article you linked, or just search for the word “crime?”
Both. I was doing the search because I was thinking "well maybe there was a crime in there somewhere that I missed".
Okay. Well in that case, my (uninformed) take is that both holding the president personally criminally liable for actions of the US government that they authorized, and not holding the president accountable for campaign finance violations they undertook on the path to getting elected, are about equally ridiculous. But it seems that we’re doing the second one.
I'm honestly lost on what you might be alluding to with the "campaign finance violations"; but that is a classic up there with the remarkable rate that whistle-blowers turn out to be guilty of sexual assault nothing-burgers. I expect candidates will routinely violate campaign finance laws and don't see why that is more than a minor problem until someone outlines what the actual issue is in a specific case.
If they're taking millions of dollars from Chinese NGOs that would be a problem. If they filled out a form wrongly and there is no motive involved that isn't interesting. Might be worth a few political points on a slow news day.
Those laws are a poster child for the high risk of selective enforcement leading to political corruption.
I was thinking of The People of the State of New York v. Donald J. Trump, but that was a guilty verdict with a discharged sentence and not an immunity ruling, so I guess never mind.
Thank you. I tried to keep my comment short, but your expansion was necessary on second thought. For better or for worse, I expect this to be relitigated. (Unless all outgoing presidents start the tradition of pardoning themselves from now on.)
The reason is that what constitutes an official act is up in the air, and let us be honest, the incumbent president is not known for staying inside the Executive branch's lane.
But the sheer unwillingness of the DOJ to prosecute, creates a catch-22: you need indictments to change or clarify Trump v. United States, 603 U.S. 593, and right now there are two options:
Somehow revive the private right to criminal prosecution (and of the president at that)(See Linda R.S. v. Richard D., (1973) 410 U.S. 614 (citations omitted)) or a Federal Court to appoint counsel to investigate a former or incumbent president. (Young v. U.S. ex re. Vuitton et Fils, (1987) 481 U.S. 787.) And I am not sure which one is less likely to happen. (Or for Congress to take that role beyond impeachment, which is even less likely.)
The case where the precedent was set suggests that it is within the outer perimeter of what the President does to give a speech designed to whip up a crowd before they head them off to the Capitol to attempt a coup.
While Trump may go farther than that, it is hard to imagine any other President in our history who would have considered doing anything more deserving of criminal prosecution in a US court.
Given how polarized our country has become and the requirement for a 2/3 majority in the Senate, it is also difficult to see how we could ever again wind up in a situation where the threat of impeachment is a significant concern to a sitting President. Given the current state of the Republican party, I'm not even sure whether an attempted military coup by Trump would get that result.
I agree completely. He doesn’t need to do a coup now that he has absolute power for four more years given the vacuum of leadership that is the legislative branch, but he absolutely would get away with it if he chooses to someday.