There are plenty of other arguments for why this position is bad; but I think the point you mention is the one that seems to most starkly show it as internally inconsistent and self-defeating:
It’s transparently absurd to think that there is some level of presidential impunity that can protect a president who isn’t popular enough to win a vote from a president who is popular enough and has the operational control of the executive branch that that implies. Any attempt to expand immunity for the outgoing president expands the scope of persecution available to the incoming one, by an equal or greater measure.
(There are also obvious questions about why we’re only worried about political prosecution when it’s the president; when both theory and the historical record point out that basically anyone on the wrong side of an executive entity, local, state, federal, or liminal, is potentially at risk; from people whose face a beat cop doesn’t like on up; but that’s not an internal inconsistency in the same way; nor is the obvious “and you found this hidden in the consitution where?” issue.)
You beat me to it. I came to post Popper’s poster below this text…
prosecuting an outgoing president who tries to overthrow an election would be anti-democratic. Or, conversely, presidents who use anti-democratic tactics to topple U.S. democracy should be protected.
…and say we need a version of this poster, with the words altered for anti-democracy shenanigans
So prosecuting former presidents for their crimes is a threat to democracy, but the alternative, that we allow presidents to feel safe in breaking the law, including attempting to overthrow our democracy, isn’t. That’s… quite the (implied) assertion… I don’t even know how to respond to that.
Is it time for Biden to exercise his presidential immunity and order ■■■■■ to be buried up to his orange chin in a cesspit, or do we have to wait for the supremes to rule first?
Please, for the love of god, someone ask Trump’s lawyer, “If Biden ordered Seal Team 6 to kill Trump and his lawyers, claiming treason (including you), and the Democratic majority Senate refused to impeach him, would Biden then be in the clear, as his act was during when he was president.”
Someone ask Alito the same thing, only that Biden orders Seal Team 6 to kill certain Justices. We wouldn’t want him to be prosecuted for his crimes after leaving office - that would destroy democracy!
First of all, EVERY ONE of the Trump appointees should recuse themselves.
The real question is easy: Is the President above the law?
Normal people would say, of course not.
But put it to a test. If the President just up and murders someone, lets say. Or burns down a synagogue. By Alito logic, that is something he can’t be held accountable for.
Because there is NOTHING defining what is and is not a crime.
By that logic, Biden could go down to Mara Lago, Trump into a coma, and hey, it’s all good! Biden could be like, Nah, I don’t like the constitutional term limit thing, but I’m president so, laws dont apply to me, la la la.
Hoping the SCOTUS has SOME lick of common sense, or at least an idea of what Rule of Law means. Not counting on it.
That’s it in a nutshell. Legitimate Presidents have full immunity. And they haven’t done a good job of hiding that they don’t believe that silly things like winning the most votes ina general election determines that legitimacy.
These hypotheticals and arguments from the right wing justices were just so absurd and intellectually dishonest. All the think pieces and talking heads saying how SCOTUS would clearly be reasonable here were deluding themselves.
Once again they are going to rewrite the constitution to benefit their world view. While Trump likely won’t be off the hook for his crimes, their complicity in kicking the can down the road will almost certainly ensure Trump’s trial is delayed until next year (assuming he doesn’t gain power again and simply demand DOJ drop the case).
He’s right about precisely one thing. Malicious prosecution of political enemies would be a problem. It can be a behaviour that can make a peaceful handover of power more difficult, and cause would-be tyrants to become more desperate. This has underpinned a lot of American policy - arguably to its detriment, given that perfectly healthy democracies have histories of prosecuting former leaders and it is not invariably damaging, often improving the health of the democratic process.
Those who would prosecute political enemies, or at least advocate for allowing it, should exercise extra care in considering the matter. Is it just, proportionate, good or ill for the nation. It is not ideal that politicians and prosecutors be the ones to decide to bring such prosecutions, but I see no better alternative.
It seems obvious that a prosecution for serious attempts to undermine the democratic process would be an example of when prosecution would be justified.
An immunity rule is not the antidote to the potential harm of vexatious prosecution of former political enemies. An immunity rule would allow you to murder your political enemies and torture their families. The risk of that occuring to an outgoing president obviously could inspire much greater desperation. The antidote - albeit an imperfect one given potential political impact of vexatious prosecution - is an independent press and judiciary.
Ultimately, Alito is approaching it from the wrong point of view. I appreciate judges do consider “policy” arguments when considering interpretations. But policy arguments are secondary (or later) considerations for when the meaning of a text is ambiguous. I’m not aware of any serious legal scholar who regards absolute immunity as an ambiguous question. Whether or not prosecution is “wise” is not a question for him.
You want proof the GOP isn’t the party of “law and order”? Well, here it is.
Alito is putting aside whether a crime was committed or not, and is focusing on this hypothetical situation of the new president attacking the old president for no reason other than revenge. But congress can address that kind of abuse of power through the impeachment process.
And Trump is currently describing revenge as his motivation for a second term.
They won’t, explicitly because they are scared shitless by the prospect of a Democrat choosing their successor. Alito and Thomas are looking at pulling a Sandra Day O’Connor here, and doing all they can to ensure Trump chooses their successors.
