a) Normally the Attorney General just does his job; he doesn't need the President telling him, for every case, whether it should or shouldn't be pursued. That's what we have the AG and all the federal investigators for.
b) The problem in this case isn't that Trump might harm someone by frivolously investigating them. I.e., the …
a) Normally the Attorney General just does his job; he doesn't need the President telling him, for every case, whether it should or shouldn't be pursued. That's what we have the AG and all the federal investigators for.
b) The problem in this case isn't that Trump might harm someone by frivolously investigating them. I.e., the problem isn't the harm to the target. The problem is that, allegedly, he was trying to intimidate people into falsifying election results. So he shouldn't be allowed to do that, regardless of whether he uses the powers of his office to do it.
c) The "superior alternative" would be that, if the President uses his powers to commit a crime, he can be prosecuted for it. This does not require creating any new authority or vetting all of the President's orders. Rather, if he commits a crime, then, after the fact, and if a prosecutor has evidence to prove it, he can be prosecuted.
“Normally the Attorney General just does his job;”
I had assumed that the executive has authority over all executive functions, and delegates to the various cabinet members and subordinate bureaucrats.
So would this mean that in no case would the president be justified in ordering an investigation? And therefore we should prohibit presidents from doing this? How about suggesting it? Encouraging it?
“the problem isn't the harm to the target”
If there were no potential harm to the target, how could there be intimidation? An investigation can inconvenience an innocent actor, but is that sufficient to intimidate them?
“if the President uses his powers to commit a crime, he can be prosecuted for it.”
So ordering the AG to investigate someone should amount to a crime (extortion?) if there had been some prior threat similar to “do x or I will order the AG to investigate you,” only not if x consists of some form of “do your duty” or “refrain from doing this illegal thing”.
And if there had never been any such threat, would there be a crime? If Trump just decided he didn’t like me, and ordered the AG to investigate me, would that be a crime? I suppose if that was truly his only reason, it would count as an abuse of power. Should I have recourse, other than to take my case to the press and try to embarrass him? (In Trump's case, embarrassment is apparently impossible.)
No, we don't need any new laws or prohibitions, nor do we need any new government offices or procedures. We just need to *not* have a special new law that says "the President gets to violate any of the other laws, as long as he uses the powers of his office to do it". That's it. That's all this post advocates for. If something is *already* illegal, then the President shouldn't get to do it just because he's the President.
Say you underpaid your taxes. Then an IRS agent will investigate and send you a bill for the amount you owe. This isn't because President Biden called up that agent and told him to investigate you. Biden doesn't have to do that, and he has lots of other things to do with his time. Rather, the agent is just doing his job. That's how things normally work. In saying that, I'm not saying that the President isn't allowed to talk to IRS agents in general. I merely think that if the President, in talking to IRS agents, is doing something that is already, independently illegal, then it should remain illegal.
I also didn't say that ordering a sham investigation of someone *doesn't harm* the person. I said that the harm to that person isn't the problem in this case. Rather, the problem in this case is that the President was doing it *in order to steal the election* by getting local election officials to falsify the results. In a democracy, leaders can't be allowed to use the powers of their office to dictate that they be deemed the winner of their own election. If that happens, that's the end of democracy.
I'm not making any claims about any other situations in which the President might want to talk to election officials or executive department officials for completely different, legal purposes.
I understand your conclusion is that the decision is bad and the president should not have such broad immunity. I agree with your conclusion.
I am challenging the part of the argument that says this immunity is bad because it permits the president to order punitive investigations that previously were prohibited. I’m skeptical that such investigations were previously prohibited, or if they were technically prohibited that this had any practical effect.
I don’t think such investigations can easily be detected or responded to, unless the president announced his intent to abuse power. Impeachment was the primary recourse against this and it remains. I’m unaware of any sanctions eliminated by this decision. How does this decision change the situation?
Prior to this decision, was the president vulnerable to being accused by his subordinates, or by state or local officials, for ordering a punitive investigation? Would such accusations take the form of an appeal to congress to impeach, or a request for the appointment of a special prosecutor , or an ordinary justice department investigation and indictment? Impeachment and investigation by congress remain available, and the other possibility seems unlikely to have ever been employed.
It would help if I remembered the events of the Watergate scandal. Was it Congress or the justice department that initiated the special investigation? I think it was congress. If it was the justice department, I am wrong.
It was mentioned that one might sue for malicious prosecution. But we are discussing malicious investigation. Presumably, the investigation would only proceed to a prosecution if the investigators found some evidence of a crime.
The investigation itself can be a burden, even if it doesn’t result in a prosecution. Perhaps it violates some constitutional right to investigate a person on a whim? Would that provide an effective defense for an otherwise guilty defendant - “hey I am obviously guilty, but there was no good reason to begin investigating me “?
If the President orders an investigation of you just because he doesn't like you, that probably isn't a crime. You should be able to sue him for "malicious prosecution", but under current USSC doctrine, you can't.
Some notes:
a) Normally the Attorney General just does his job; he doesn't need the President telling him, for every case, whether it should or shouldn't be pursued. That's what we have the AG and all the federal investigators for.
b) The problem in this case isn't that Trump might harm someone by frivolously investigating them. I.e., the problem isn't the harm to the target. The problem is that, allegedly, he was trying to intimidate people into falsifying election results. So he shouldn't be allowed to do that, regardless of whether he uses the powers of his office to do it.
c) The "superior alternative" would be that, if the President uses his powers to commit a crime, he can be prosecuted for it. This does not require creating any new authority or vetting all of the President's orders. Rather, if he commits a crime, then, after the fact, and if a prosecutor has evidence to prove it, he can be prosecuted.
“Normally the Attorney General just does his job;”
I had assumed that the executive has authority over all executive functions, and delegates to the various cabinet members and subordinate bureaucrats.
So would this mean that in no case would the president be justified in ordering an investigation? And therefore we should prohibit presidents from doing this? How about suggesting it? Encouraging it?
“the problem isn't the harm to the target”
If there were no potential harm to the target, how could there be intimidation? An investigation can inconvenience an innocent actor, but is that sufficient to intimidate them?
“if the President uses his powers to commit a crime, he can be prosecuted for it.”
So ordering the AG to investigate someone should amount to a crime (extortion?) if there had been some prior threat similar to “do x or I will order the AG to investigate you,” only not if x consists of some form of “do your duty” or “refrain from doing this illegal thing”.
And if there had never been any such threat, would there be a crime? If Trump just decided he didn’t like me, and ordered the AG to investigate me, would that be a crime? I suppose if that was truly his only reason, it would count as an abuse of power. Should I have recourse, other than to take my case to the press and try to embarrass him? (In Trump's case, embarrassment is apparently impossible.)
No, we don't need any new laws or prohibitions, nor do we need any new government offices or procedures. We just need to *not* have a special new law that says "the President gets to violate any of the other laws, as long as he uses the powers of his office to do it". That's it. That's all this post advocates for. If something is *already* illegal, then the President shouldn't get to do it just because he's the President.
Say you underpaid your taxes. Then an IRS agent will investigate and send you a bill for the amount you owe. This isn't because President Biden called up that agent and told him to investigate you. Biden doesn't have to do that, and he has lots of other things to do with his time. Rather, the agent is just doing his job. That's how things normally work. In saying that, I'm not saying that the President isn't allowed to talk to IRS agents in general. I merely think that if the President, in talking to IRS agents, is doing something that is already, independently illegal, then it should remain illegal.
I also didn't say that ordering a sham investigation of someone *doesn't harm* the person. I said that the harm to that person isn't the problem in this case. Rather, the problem in this case is that the President was doing it *in order to steal the election* by getting local election officials to falsify the results. In a democracy, leaders can't be allowed to use the powers of their office to dictate that they be deemed the winner of their own election. If that happens, that's the end of democracy.
I'm not making any claims about any other situations in which the President might want to talk to election officials or executive department officials for completely different, legal purposes.
I understand your conclusion is that the decision is bad and the president should not have such broad immunity. I agree with your conclusion.
I am challenging the part of the argument that says this immunity is bad because it permits the president to order punitive investigations that previously were prohibited. I’m skeptical that such investigations were previously prohibited, or if they were technically prohibited that this had any practical effect.
I don’t think such investigations can easily be detected or responded to, unless the president announced his intent to abuse power. Impeachment was the primary recourse against this and it remains. I’m unaware of any sanctions eliminated by this decision. How does this decision change the situation?
Prior to this decision, was the president vulnerable to being accused by his subordinates, or by state or local officials, for ordering a punitive investigation? Would such accusations take the form of an appeal to congress to impeach, or a request for the appointment of a special prosecutor , or an ordinary justice department investigation and indictment? Impeachment and investigation by congress remain available, and the other possibility seems unlikely to have ever been employed.
It would help if I remembered the events of the Watergate scandal. Was it Congress or the justice department that initiated the special investigation? I think it was congress. If it was the justice department, I am wrong.
It was mentioned that one might sue for malicious prosecution. But we are discussing malicious investigation. Presumably, the investigation would only proceed to a prosecution if the investigators found some evidence of a crime.
The investigation itself can be a burden, even if it doesn’t result in a prosecution. Perhaps it violates some constitutional right to investigate a person on a whim? Would that provide an effective defense for an otherwise guilty defendant - “hey I am obviously guilty, but there was no good reason to begin investigating me “?
If the President orders an investigation of you just because he doesn't like you, that probably isn't a crime. You should be able to sue him for "malicious prosecution", but under current USSC doctrine, you can't.