Why is the president different when the Impeachment Clause doesn't say so?

The nasty guy’s claim to total immunity was before the Supreme Court this week. Nina Totenberg of NPR has a basic description of how the oral arguments went. Justices appear skeptical of blanket immunity. That’s good. So the question is what kinds of acts get immunity and what kinds don’t. Gorsuch said. “We're writing a rule for the ages.” I’ll come back to that. Other questions and statements were about: What if a guy leaving office is prosecuted by his successor? It might keep him from making big decisions. I think I remember the nasty guy making that claim. They then turned to whether the break is between a public act and a private act. But that would allow a president to officially commit and act, like ordering the military to assassinate an opponent, the rest of us would call treason or murder. This NPR article included both what was heard on air and some background information. In the background info there is concerns that the Supremes will return the case to the lower court to sort out what is an official act (though we’ve already pointed out an “official” act can be a crime) and what isn’t. That would delay the underlying case of the nasty guy instigating the Jan 6 attack being a crime. The delay could put the case beyond the November election, after which, if elected, he could dismiss the case or pardon himself. The nasty guy’s lawyer claims that investigating election fraud in the 2020 election was an official act and thus he is immune. There is nothing in the Constitution about immunity and no court has recognized it. There is nothing in the Constitution to support the nasty guy’s claim that a former president cannot be prosecuted unless he’s been impeached and convicted. Keep in mind prior to the nasty guy this question was moot. NPR's A Martinez spoke with former federal prosecutor and Politico senior writer Ankush Khardori. This discussion included wrangling over which acts were private and which were not. Spreading knowingly false claims of election fraud is probably private. The liberal justices showed how absurd that distinction could be. Roberts said he wants to send the case back to the lower court so they can determine exactly which acts are being discussed. Which sounds like a wish to run out the clock. Totenberg looked at the background of the conservative justices for some insight.

Five of the six conservatives spent much of their lives as denizens of the Beltway. As young men, the five served in the White House and Justice Department, working for Republican presidents, often seeing their administrations as targets of unfair harassment by Democratic majorities in the House and Senate. You can hear echoes of those experiences in some of Thursday's questions about the conspiracy to defraud charge against Trump.

Kavanaugh worked for Bush II when the court upheld the now-defunct independent counsel law. Gorsuch’s mother was Reagan’s head of the EPA, put in that role to make sure nothing got done. She was cited for contempt of Congress. Alito was in senior Justice Department positions under Reagan. He said he was afraid that a president making a mistake would lead to prosecution. The government lawyer said mistakes don’t result in criminal prosecution. Roberts, as an aide to the Attorney General under Reagan was point man on political controversies. Kavanaugh, Alito, and Thomas had difficult Senate confirmation hearings (two of those included charges of sexual harassment or assault). Barrett is new to Washington, having spent her prior career in academia, at Notre Dame Law School. She challenged the claim the others were making.

"There are many other people who are subject to impeachment, including the nine sitting on this bench," Barrett said, adding that nobody has ever suggested that Supreme Court justices couldn't be criminally prosecuted. "So why is the president different when the Impeachment Clause doesn't say so?" she asked.

Jamess of the Daily Kos community discussed an interview between Sen. Sheldon Whitehouse of the Justice Committee and Lawrence O’Donnell. Up at the top of this post I included a quote from Gorsuch: “We're writing a rule for the ages.” Jamess wrote this was the start of Whitehouse’s critique:

Gorsuch and his constructionist cohorts have forgotten what their role is — which is precisely to decide the question before them: Does former president Trump have Full Immunity or not? They are not supposed to legislate “new rules” from the bench — that’s the job of Congress. They are not supposed to “amend the Constitution” to correct the Founders’ omissions — that’s the role of the States and the Amendment Ratification process. The Supreme Court is supposed to decide on sticky-wicket cases before them; to rule for or against the rights being claimed and asserted. Their role is NOT to take every case as an opportunity to rewrite the Laws in their own conservative image.

The question should be simple. Democracy relies on this ruling. We cant afford more frivolous delays and endless deliberations.

The Founders did their best to escape an unaccountable monarchy. Now only to see the modern-day Trump-installed court, do their damndest to enable that next “self-proclaimed dictator, on day one.”

cheforacle of the Kos community proposed a hypothetical. This court has at least three justices that are corrupt. Kavanaugh has been accused of rape by multiple women. During his hearing he was contemptuous of the Democratic senators. Alito lied during his hearing about his opinion of Roe v. Wade and has received gifts from parties before the court. And Thomas has sugar daddy Harlan Crow and his wife was an insurrection instigator, yet he refuses to recuse. Add to that Roberts refusing to allow any outside tribunal look at ethics issues. So consider this scenario that Sotomayor, Jackson, or Kagan should have posed:

Biden concludes by saying this Court has become a threat to our democracy and without action “we’re gonna lose our country. If he demanded the mob go and “fight like hell” to save this country and during the subsequent fight at the Supreme Court building, the protestors, bearing pro-Biden signs and T-shirts kill 5 police officers (although one protestor wielding an An American flag was killed by a security member who was under attack from the masses). Would he be immunized from prosecution for sending that mob to the Court to stop a judicial hearing from taking place?

Commenter MutareParadigm wrote:

Well, if Presidents have total immunity for official acts, then President Biden could, theoretically, jail Trump as an official act on grounds of national security. You can bet your last dollar that Trump is already considering having any future opponents jailed this way if he becomes President again.

In a pundit roundup for Kos, Greg Dworkin quoted Jonathan Last of The Bulwark:

A few years ago my buddy Stuart Stevens wrote a book called It Was All a Lie. His thesis was that the dogma conservatives had professed for 60 years—the love of small government and free trade; the desire for robust foreign policy; the belief that character and accountability mattered—turned out not to be values but rationalizations. In Stuart’s view, conservatives had a bunch of groups they disfavored and then worked backwards to concoct an ideological framework to support these prejudices. No, not all conservatives. And maybe not on every single issue. But enough so that the generalization was generally fair. ... Yesterday the Supreme Court hinted that maybe conservative legal theory was always a lie, too.

Way down in the comments is a cartoon by Ivan Ehlers and posted by The New Yorker. It shows Thomas talking to Roberts: “We’re not giving him a free pass to do whatever he wants – we’re buying him time so he can get elected and then do whatever he wants.” Much further down in the comments is a cartoon posted by exlrrp and created by Stahler. It shows parents at a parent/teacher conference a bit open-mouthed. The teacher, holding an assault rifle, says, “Your daughter seems distracted in class.”