What is so special about the office of President of US? Surely, all public servants should have the same immunity for exactly the same reason as the office of the President of the US has immunity. All military personnel should also have exactly the same immunity for exactly the same reasons as the President of the US. 😂
I'll throw in the irony that the US Constitutional system has been functioning totally fine for 250 years without the presumption of Presidential immunity. Thus the idea at the heart of the decision that it's urgently, critically necessary rings a little hollow.
It was needed because of the absurd case brought against Trump which sought to have him removed from the ballot. But it wouldn't be convenient to talk about that.
@@RodWilliams-m7r Smith's main claims were 1. Trump knew he'd lost the election 2. He pressured state officials, 3. His pressure on Pence 4. Various false claims about voting machines and 5. His efforts on Jan 6. 1 is a question of intent and in the ordinary course impossible to prove but particularly so in Trump's case as all evidence pointed to Trump believing he'd won. Smith's evidence that advisors told Trump he couldn't / didn't win is laughable. 2., 3. and 4. are not crimes (in fact violate Trump's freedom of speech) and for 5. no specific claim was made, certainly not insurrection. Probably because SCOTUS earlier ruled 9-0 against Colorado's attempt to throw Trump off the ballot because he was an insurrectionist and ineligible under the 14th amendment. Trump never attempted to overturn the results of the election. He believed there was sufficient evidence to question the result and demanded Pence send it back to the states so the evidence could be presented. Instead, what we got was a complete clown show. The Democrats not only rejected the results of the 2016 election they refused to acknowledge Trump as the legitimate POTUS. As is their constitutional right.
The idea of presidential immunity is not new at all. Eg Wiki: "In 1973, amid the Watergate scandal, the Department of Justice's Office of Legal Counsel (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president."
@constitutionalclarion1901 I understand that in your opinion it's a good thing that the potus has hanging over their head the threat of a (subordinate) prosecutor indicting him for official acts. Wow. You clearly haven't been following the lawfare waged against Trump by the Biden administration. How about you do a video breaking down the 34 felony hush money trial and try and specify the felony Trump was alleged to have committed..? Also are you aware of any instances where Biden violated the constitution..? I can think of at least 5. Trump ? Not one.
@prevsaudi9858 In the New York felony trial each juror was convinced beyond all reasonable doubt that 1) Donald cooked the books, and 2) he did so to hide a crime. That's all the statute requires of the jurors. Remember, New York hosts the world's leading stock exchange, and they really, really, don't like financial crooks.
@@prevsaudi9858Trump/Biden is irrelevant. The Supreme Court has set the law for the foreseeable future. The Supreme Court has pretty much said that any President's decisions for the foreseeable future will not be subject to judicial review. Thus a Democratic President will have the same powers and immunity that Trump has. 😂
Thank you It definitely gave me a better idea of what's going on. Might give me nightmares about the future but that's the cost of confronting reality. You'd think a person would not be elected in any case after those actions, and even more so knowing the judiciary would offer no protection those actions in future.
Thank you. As a lay person I really struggled to grasp this whole whole issue, I was truely taken aback the Court findings. I shall watch this video again and ponder.
What are you on about? 😂😂 Do you really think it’s credible that not one individual would vote for a candidate in an election for a seat in the House of Reps? You may as well say “what if everyone died before they could vote?”, “what if the zombie apocalypse arrived just as they begun counting votes?”
That may very well be true, but that's hardly a conclusive argument. The one thing this decision gets right was to boot some of it back to the Circuit Court due to the belief that in many instances the individual circumstances would need to be argued.
@johnp2001 None of this is booted back to the Circuit court. In performing his official duties, the potus is immune from criminal indictment. It's been the established lasw of the land for decades. Otherwise Obama (drone strike killings), Bush (Iraq and Afghan wars), Clinton (missile strikes into Bosnia) and Biden (criminally negligent withdrawal from Afghanistan) would have been indicted and presumably found guilty.
If you read the judgment, much of it is sent back to the District Court. However, that was before Trump was re-elected. Due to the practice of the Department of Justice, he will not be prosecuted during his term of office.
@constitutionalclarion1901 I read it that all of it was sent back to the District Court for it to apply the immunity decision. It was an administrative move.
A president who (apparently) with criminal immunity, can order a department to act illegally; who also has the power to pardon anyone for acts in the commission of that order - is a very dangerous person indeed.
Agreed. Of course, many would argue that the legislature still has the ultimate sanction here in that it can remove a president that it considers to be acting improperly. I think the biggest failure with regard Trump isn't the Supreme Court but rather the failure of the Senate to reach the 2/3 majority.
@@alvanrigby6361 Voters with low political knowledge pick a presidential candidate as a fashion accessory, essentially a brand enhancement for themselves. Biden and Harris were such failures, and the Democrat bench so weak, that backing Democrats no longer makes anyone look smart or fashionable. Backing Trump before The Fine People Hoax had been debunked was unthinkable to people protecting their personal brand. But after the massive failures and treachery of the fake news, and Trump pumping his fist after an assassination attempt, and coming back from so far behind, he's clearly the hero in the American story. Wearing a Maga hat is no longer dangerous. Usually.
@ The impeachment process is clearly a failed mechanism for checking presidential power. In four presidential impeachment trials, there has been not one conviction. If inciting an insurrection in which the senators/jurors' own lives were in danger did not merit a conviction, it's hard to imagine what would.
Any Constitution is only as good as the will and means to apply it. Scholars may analyse Constitutions in the context of the times in which they were drafted, but Constitutional Courts are obliged to interpret them as they are written. If the Constitution is found to be out-of-step with contemporary mores, it is then up to the Legislature (i.e. Government) to organise a valid means of amending or redrafting the Constitution -- or modifying prevailing attitudes. Australia's Constitution is an Act of the British Parliament, does not incorporate a Bill of Rights, retains as Head of State a citizen and resident of a foreign country, and is almost -- but not quite -- impossible to amend. It was debated and drafted at a time when most State representatives were parochially preoccupied with 'State rights' and the nation was suffused with a colonial mindset that is, even now, only partially dissipated. Under the circumstances, I find it difficult to argue for our Constitutional 'maturity'.
@@malcolmfletcher7295 interesting comment, but I have to disagree on a couple of points. Insisting that a constitution has to be interpreted as was written is "originalism", and an utterly stupid way of running a country. Constitution must be interpreted in light of Contemporary norms (think the US "right to bear arms"; allows some weapons unthinkable in 1776 but allows others). Second, your suggestion the lack of a bill of rights suggest the Australian constitution is "not mature". Such documents cement rights, privileges and responsibilities in the age and times it was written. Yes the Australian constitution should be slightly easier to amend, but that we can achieve so much change and progress without constantly updating is to me speaks in its favour. Even the whole point about the Monarch; given its complete lack of impact on anything to do with our daily lives, it remains a weird ineffective anachronism. The only people who get passionate about such trivia usually base their views on jingoism, one of the more appalling "isms".
@ Unfortunately your argument is for the inclusion of redundant facets, particularly a Bill of Rights as our constitution and consequent laws make such an addendum unnecessary and cumbersome. The test of our constitution is its longevity, and continuity, particularly during two world wars which only a handful of countries managed to maintain. Therefore it must have more going for it than not going for it.
@@anthonywatts2033 Words had a specific meaning when the constitution was drafted, and the Federalist Papers and other documents tell us what the framers intended. The 2nd amendment gives you the right to bear arms. The living and breathing document analogy doesn't change that. That' absurd theory is how we got one of the worst supreme court decisions of all time - Roe vs Wade.
It's not a great suprise (the majority ruling) that the highest court in the US came to such a banal conclusion considering they are the only justices in the land who are not subject to independent ethical scrutiny. Self regulation for the ultimate interpreters of the constitution! Ridiculous.
Remember recalling the quote "the Constitution says what 5 of 9 Judges say it does" in regards to the US - cannot recall the source. Whilst a generally applicable one, by Jove it seems to hit much harder with regard to the US Supreme Court than, say, our High Court
I get the impression that some people think that the office of President of US is unique and that decisions made by the holder of the office should not be subject to review by the judicial branch of government. I suspect that in Australia, UK, Germany, Canada, Japan etc the idea the PM would get the same immunity as the US President would be met with mirth.
Highlights how law is perceived from different traditions/societies. Which raises the fear of Australia being infected with this sort of rulings etc. Given that our constitution is partially based upon the US it would be very interesting to see the areas of both that have shifted/changed since Federation.
This is from the NT's criminal code 208E Law enforcement officers A person is not criminally responsible for an offence against this Part if: (a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and (b) the conduct of the person is reasonable in the circumstances for performing that duty.
Yes, I will do one about immunity in Australia. Still working on the issue. It's a complex one (and there's no single judgment that fully addresses it, unlike in the US).
Absolute insanity , although everyone getting off Scott free from the illegal robodebt debacle , the Paladin contract corruption etc etc doesnt make Australia much better
Moral of the story: election of a head of state who is also head of government is very difficult to implement in practice. The US has been trying to do it for over 200 years and this is where they’ve landed.
Indeed, I also think that is the root of the problem. There should be a separation between the Head of State and the the head of the Executive Branch of government. I think also, even the US Government thinks their system of government is perhaps not the best form of government. I don't recall any system of government being set up in any country, at least since WWII, where the US has had influence, replicating the US model.
The way I see it, the "Head of State" in the US sense is the Congress, who directs (through appropriation, legislation etc) what POTUS can or cannot do. i.e. POTUS is to Congress in the US as Parliament is to the Monarch in Australia. What can be confusing to most people is how this power relationship is inverted.
The founders saw the advent of a prime minister, imposing himself between the head of state and the legislature, as a threat to liberty. I think it is pretty clear by now they were wrong. Professor Twomey called her book on the powers of the head of state in a Westminster system The Veiled Sceptre. Donald Trump returns to power in a few hours and he clearly intends to wield the presidential sceptre entirely unveiled.😥😠
@ Very true. Even in countries were the US effectively wrote the constitution (Japan, Iraq), the system was parliamentary, not presidential. The one exception is the second Afghan Republic. There seemed to be a fair amount of support among the Afghans themselves to restore the former king as a figurehead head of state. 800 delegates to the Loya Jirga held in 2002 to establish the transitional government signed a petition in support. The US government (Bush 43 administration) pressured him to withdraw. They insisted on a president. History records how that ended.
@@alandyer8025 Not sure I agree with that, because the President of the United States has the power to make executive orders and I assume he has some authority over the Senate because he has just stopped the sale of TikTok which was a Senate decision, I’ll admit I don’t know much about the US system but to a layman the President is head of state.
It somewhat amusing to see that the US fought a war for Independence against the notion of Monarchy but the US President has a lot, lot more power and immunity than Monarchs of the UK, Canada, New Zealand, Australia, Japan, Sweden, Denmark, etc. 😂
The US President certainly has more power, but the UK monarch has a greater immunity. The reason the immunity of the UK's monarch is less controversial is due to the lack of substantial power that the monarch now has.
@@constitutionalclarion1901 I believe it's the lack of power being wielded, rather than not having that power. The monarch (of UK, Australia, etc.) still has (on paper) more power than the USA president, they just choose not to use it because they know civil wars would follow.
@@mindi2050 The monarch holds all executive power in Australia. Clause 2 of our constitution allows them to delegate some or all of that power to the governor general during their "pleasure". Which means they can take back any or all of that power at a whim.
The executive power vested in the monarch by s 61 is made 'exercisable' by the Governor-General. That means that the monarch cannot exercise that executive power - only the Governor-General can.
It is logically impossible to say that the most powerful and consequential member of society is immune from prosecution while everybody else must answer for crimes committed.
Your logic is flawed. The President of the USA is a "position," not an "individual person." Presidents are called upon to do things that normal people are not, hence the need to legally differentiate between the two; it makes perfect sense and is completely logical.
@@peterslocomb152Immunity? No. That was settled in 1645, when his ancestor and predecessor as king, Charles I, had his head chopped off by Parliament.
@@peterslocomb152 King Charles III has immunity from criminal prosecution in the United Kingdom. This is because the common law principle of "sovereign immunity" states that the monarch cannot be held criminally responsible. As the reigning monarch of the United Kingdom, King Charles III is immune from criminal and civil prosecution, known as crown immunity or sovereign immunity, even if he killed someone. This is a long-standing constitutional convention that the monarch can do no wrong.
I think a big thing that was missed in your video, is the fact that congress can impeach the president at any time. This is the limitation on presidential power that was intended in the US constitution, not acts of the court, which presumably would only ever occur by the actions of a justice department run by a president's political opponents.
But you are deluded that impeachment has any juridical function. It is purely a political game with no relation to justice, law or right. Impeachment has nothing to do with the rule of law. USA is a joke of a nation in legal terms. Your constitution, your supreme court, your presidency, all have the legal IQ of a three year old. Your nation is a legal laughing stock and your supreme court judges are corrupt children. Grow up America! Get a real constitution, get a real head of state, not a dictator.
Why would you make that presumption? My presumption is that all public servants including members of the justice department make decisions based on the merits of the case. If a decision maker made a decision because they liked or didn't like the President that would obviously be an invalid consideration. It seems to me that presumption that public servants would not act in accordance with their oath to uphold the Constitution, is somewhat a sad reflection of what what US citizens think about themselves.
The penalty for impeachment is removal from office. If that is the only possible penalty for any crimes committed in office, wouldn't that encourage more severe crimes?
The reason I didn't include the impeachment argument (apart from a timing/length issue) was that it was rejected by the majority judgment. Below is the summary of Trump's argument about impeachment, as set out in the syllabus: " Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32-34."
The problem with impeachment is that Trump was impeached, but not by a big enough majority to succeed. In practice, it needs both main parties to be angry with the president.
@Gotoooooo When people tell you who they are, believe them. Their consistent promotion of their political agenda is an observable pattern; this being in direct contradiction of the duty of their office. The contortions they perform in the formulation of the _constitutional rationale_ they concocted to give The Once and Future President immunity was grotesque.
How can you possibly be immune from scrutiny from the judicial branch if the judicial branch is the only thing which can decide what that immunity applies to, via scrutiny
The issue is whether it's (part of) an official act or not. If it is (eg. Obama drone striking US citizens who were terrorists) then you're immune, if it's not (eg. Biden raping Tara Reid) then you're not.
To be fair, it's a lot better all those judges in the United States who are elected in popular elections. That gives them an incentive to be seen to be "tough on crime" or whatever the electorate wants at any given moment, even if it contradicts the principles of justice, judicial independence, and the rule of law. There is a school of thought (that I'd like to see Prof Twomey's take on) that Australian high court justices aren't exactly free from systemic bias, either. Because they are chosen by the Federal government, those chosen may have a bias towards federalism vs the interests of states and territories.
And we hold out these people as our allies and protectors! The defenders of the free world! Really? The value, in my mind, of explanations such as this is that it shows the level to which the United States has fallen. It was once a beacon of democracy but has descended (as did the Roman and many other empires) to a point where democracy and the rule of law no longer has any real meaning. I feel sorry for the average American who probably is unaware of this situation. Thanks for another riveting discussion.
"Would the founding fathers of the US Constitution really have intended the Constitution to give absolute immunity to a president who seeks to overturn the operation of that very Constitution?" The founding fathers didn't envision any immunity for the president, otherwise they would have included such in the Constitution. The presidential immunity which has been developed after the fact (starting nearly a whole century after the adoption of that Constitution) has come from creative reinterpretation of clauses which simply describe the duties of the president. And the founding fathers were completely opposed to the idea of having a king, so there's no way they would have granted king-like powers to the president.
If the potus is answerable to a (rogue) subordinate, the executive branch cannot function as intended by the founding fathers. The Court held that, neither Congress nor the courts have the authority to limit the potus’s exercise of “core” authorities the Constitution guarantees to the potus - such as the power to pardon and remove executive officers. Congress, with a few exceptions, may not limit these potus authorities through specific or generally applicable statutes. The majority framed its analysis by describing the framers’ conception of the presidency. Chief Justice Roberts wrote that the framers sought to empower a single constitutional officer with “ultimate authority” to “encourage energetic, vigorous, decisive, and speedy execution of the laws.” According to the majority, the framers believed this energy would enable the potus to guard the US from foreign attacks, properly administer the nation’s laws, and protect the people’s property and liberty. In order to fulfill these duties, the potus would need “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” The majority noted, though, that while the framers’ conception of a powerful presidency supports its immunity framework, “relevant historical evidence on the question of potus immunity is of a ‘fragmentary character,’” and therefore it must rely more fundamentally on separation of powers principles and prior rulings defining those principles.
The President has immunity. No other Western democracy grants such immunity to its political leaders. What is so special about the President of the US? Other members of the Executive Branch of government are required to make life and death decisions in split seconds eg police and military personnel. They do not get immunity. Just asking as an outsider. If such immunity was suggested in Australia, for political leaders, it would be met with mirth and bemusement?
Terrific. Good luck with your course. The more you pay attention to the political/constitutional controversies that are occurring around you, the more sense your studies will make to you.
It seems to me the US system is designed for deadlock. Where the Congress passes a law , the President can veto it, the Congress can overturn that veto(as I understand it.), with a 2/3rds majority. Supply (using our terminology.), can be blocked and no one has power to end it, unlike the GG here or State Governor in a state. It just seems a weird system to me .
There is a logical disconnect in respect of the Supreme Court's "opinion" on Presidential immunity against prosecution for criminality during execution of his official duties and the requirements of the Presidential Oath (or Affirmation) at Section 1 of Article II, and the provisions of Section 4 of Article II of the US Constitution. It has been suggested by eminent commentators in the US that the Supreme Court's opinion was "made out of whole cloth" - that the Justices were making it up as they went along, secure in the knowledge that they were the ultimate authority on what the US Constitution did or did not mean! As with the Australian Constitution, the US Constitution needs a complete re-write, to reflect the current situation and the way forward, rather than the situation one (or 2 1/2) centuries ago! I shall not hold my breath waiting for either to occur!!
There's no disconnect. The question is whether the act is official or not. Trump's defence themselves said, as an example, that the potus staging a coup to retain power is clearly not an official act. Yet ordering the assassination of a terrorist leader and / or the killing of innocents during that operation may bring indictments from a nefarious and politically motivated subordinate. Should Obama be indicted for ordering drone strikes which murdered US citizens..?
@@prevsaudi9858 Section 4 of Article II states that the President, amongst others, shall be removed from Office on Impeachment for and Conviction of ..high crimes and misdemeanors. SCOTUS says no, the President has absolute immunity. Both cannot be correct! In his Oath (or Affirmation) POTUS swears (affirms) to faithfully execute the Office of POTUS and ...will preserve, protect and defend the US Constitution. How does being immune from all criminal prosecution square with that? I believe the SCOTUS opinion is "ultra vires" - but how is it to be corrected?
@@paulbowler2760 you didn't answer the earlier question about Obama killing US citizens (terrorists) with drone strikes. I take it he should be indicted? How about Biden's criminally negligent withdrawal from Afghanistan killing 13 soldiers and hundreds of Afghans. Should Biden be indicted?
@@prevsaudi9858 I think that's what he's saying - criminal immunity for official acts means he can't be impeached. He clearly has no idea what this case is about, what the impeachment clause is about and he doesn't understand the meaning of high crimes and misdemeanors.
I thought that 'the rule of law' meant no one was above the law. Is the US no longer a country where 'the rule of law' exists? Has the US become a country where 'the rule by law' applies?
I suppose this is not an area where you plan to spend too much time but I'd be interested to hear your speculation about how the Supreme Court would interpret this if the target/victim of alleged criminal action was the judicial system itself. Of course the courts are very interested in preserving their own independence and rely on the cooperation of the executive to achieve this. For example does this decision give immunity to acts taken by the president to influence, reward, punish etc a justice that is not supporting their policy/wishes? The executive manages the court buildings and provides marshals and additional security to allow the functioning of the judiciary, I suspect this sweeping immunity would narrow quite quickly if the president interfered with these functions.
I'm afraid I'm not qualified to speculate on that. I'd need to have a deeper knowledge of how the US Supreme Court treats the separation of powers and the extent to which it tends to qualify or depart from precedents. Even then, it would depend very much on the circumstances and how the case was argued.
Oh dear, from what you say about their decision it seems that the Supreme Court thinks the President should be immune from prosecution not so much because he is head of state but because he is head of government, and that the executive branch should be independent in the sense of completely unnaccountable. In the Westminster system on the other hand it could almost be said that the primary purpose of our constitutional arrangements is to ensure that the executive is accountable (to both the legislature and the judiciary, in different ways) for its actions. It seems strange to think that both systems originated in the struggle against the unaccountable autocratic power of the monarchy. Surely this SC decision is taking the principle of separation of powers to an extreme conclusion (and at the expense of the principle of checks and balances). You can't even say that the President is accountable to the people (at the next election) if he is legally within his rights to tamper with the result of an election.
The executive branch (the potus) is answerable to the judiciary who can rule the executive branch's actions are unlawful. The executive branch is also answerable to congress (legislature) who may disallow laws passed by the executive.
I think an important part of the puzzle to include is that presidents can be impeached by the Senate. It's not up to the courts per se. I'm no expert by any stretch but my understanding is impeachment is the primary remedy for bad behaviour, not the courts.
I addressed the main arguments in the case concerning immunity, and did not digress onto the separate issue of impeachment. But here is the summary of how the majority dealt with the impeachment argument, as set out in the syllabus: "Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32-34."
@@chitchensisgod Although what is the penalty that can be imposed by the Senate? Removal from office and, potentially, exclusion from future office... not quite the same as the consequence for a criminal conviction. It also requires a 2/3rds majority to convict, making it extremely unlikely to succeed. What did Mitch McConnell say upon not impeaching...: “We have no power to convict and disqualify a former officeholder who is now a private citizen." ..." impeachment was never meant to be the final forum for American justice"... “We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one."
@@kappa7 I think you'll find McConnell's comments were in relation to the impeachment of Trump after he left office. An outrageous abuse of law and unconstitutional. Hence Chief Justice Robert's not presiding over the trial. If the potus murdered someone they'd be impeached and once removed from office they would be criminally charged.
My understanding is that the Supreme Court has been stacked with political hacks over many years and doesn't really function independently of political pressure. I believe this is due to the political process the US has for selecting Justices. I would love to hear more about the likelihood of a similar thing happening to our High Court here and if the way our Justices are chosen could also be manipulated, if a political party decided, to cause similar stacking.
I agree with you about the US courts. I'm not a lawyer and just a casual observer but I've noticed over the years that despite attempts at "political" appointments the vast majority of our Justices tend to concentrate on what the law is and how it applies rather than make political judgements. I hope that's the way it remains and our compulsory retirement age seems to help with that.
@@almango873 Good point about the retirement age. I have noticed the same thing about the High Court decisions but I don't understand why they are not political.
Thanks, when I see this stuff going down overseas, the morei precious I think the Australian constitution and electoral system is. I think they play a large part in keeping the oligarchs and wannabe dictators at bay. This and three year terms gives us regular opportunities to ditch any government that underperforms or gets out of line.
Thanks. I mostly do it so that it's easy for me to scan through my videos and find the one I want, because I associate things more quickly with colour. It's just a good sorting indicator.
If these videos continue (and I very much hope they do), you may need to add more contrasting colour accessories! Or re-arrange the books in the background?
Wonderful precis and analysis, Professor. As I suspect you know, the ruling was greeted with a great deal of shock by much of the legal establishment and constitutional scholars in the USA, as well. Many constitutional experts serving as commentators for US news outlets expressed surprise that the Court was even taking up such a case, which most of them - outside of the Federalist Society and related bastions of Unitary Executive theory - considered without merit, especially given how firm and emphatic the Circuit Court's ruling was. One of the best explanations I have heard for the Majority's eagerness to stake out such a radical new doctrine of presidential immunity, which would seem to fly in the face of the founding fathers' decision to establish a republic rather than a monarchy in the first place (ironic in itself, of course, given the way the powers of the British monarch and his viceregal representatives evolved compared to their republican chief magistrate, even before this ruling) is that four of the justices in the majority: Chief Justice Roberts, as well as Justices Alito, Gorsuch and Kavanaugh, all worked as lawyers in the executive branch under Republican presidents. All of these men found it frustrating that the courts constrained Presidents Reagan, Bush, and Bush from taking the "bold" action they desired. These junior members of Republican-led justice departments have now had their revenge. The Chief Executive need not worry about the interference of those pesky courts and their "rule of law" nonsense anymore!
This decision merely established case law for the long established position that the POTUS cannot be charged with a crime for discharging his official duties. That's why Obama won't ever be charged with murdering US citizens. It's actually not that difficult.
I have worked for the highest court in Australia, for the federal Parliament and for the Cabinet Office of New South Wales - so in all three branches of government, and at both State and federal level. One thing I have learned is that everyone thinks they are in the right and that they are being constantly frustrated by another branch or level of government, and that everything would be wonderful if the limits on their powers disappeared. Another thing I have learnt is that having restrictions on powers is absolutely essential, even though it is frustrating.
@@garyholtzman5155 potus immunity is long established. It's neither new or radical. There's nothing controversial about this. A system in which the potus (the executive branch) can be indicted by a subordinate would see the system collapse- and is exactly what the founding fathers were afraid of, hence the impeachment clause. This only became a case because of Jack Smiths baseless, unconstitutional and election interfering attacks on Trump. No potus before trump had ever been indicted and Smith's appointment was a shame, highlighting the obvious dangers with rogue prosecutors wielding such power.
By following the path Drumpf tried in 2020, and would have succeeded if it weren't for a few brave individuals of the same party in positions of authority elsewhere in the chain... [Apologies for mixing a few metaphors there...]
@@garethaethwy So the 2020 election was valid. Trump sought to have the slates of electors sent back to the states so the allegations of fraud could be presented and investigated and various cases slated for the Supreme Court could be heard (eg. The unconstitutional changes to the election laws in various states such as PA).
Oh Professor, it is always made evident why you avoid a lot of these topics when some very strange folk show up in the comments. But yes to the Westminster world, this seems beyond the pale. To be able to lawfully attempt to overturn an election, in an electorally representative democracy is quite beyond my ken.
It is really quite simple. Supreme Court judges are politically motivated appointments, rather than being based on merit. Supreme Court judges can & do interpret the laws however they wish according to their political interests, rather than taking an objective view of the law. In summary, the United States is a sham democracy which only holds up for as long as the people believe that the democracy is real, which does not seem to be changing any time soon. Then, without any true representation of the will of the people, some are left wondering why people like Luigi become a folklore hero - but had a true democracy been in place to make the necessary societal changes to be in the interests of the people rather than the oligarchy, then the circumstances which led to violence wouldn't have even been present in the first place for it even to be a thing in the first place. I expect to see far more violence in the United States in the short to medium term as more people become disillusioned with their institutions.
In the US system it seemed far beyond the pale as well, until radical jurists from the Federalist Society, aided by Mitch McConnell and Donald Trump, were able to take control of the Supreme Court. Constitutional theories that were considered "fringe" outside of the Claremont Institute and other far right circles eight years ago are now the law of the land.
But are his agents and servants in those broadly construed acts also immune in some way after performing their portion of or any subsidiary acts advancing the overall scheme? Is the President's intents thwarted by the full effect of the law still applying to his agents and servants or do the various immunities cascade along? Does his immunity invade the sovereign states' powers? Do these immunities apply to the state governors at their level as well?
Spot on Prof … unlikely the founders originally contemplated the way the current Supreme Court rules. Carte Blanche for a person who who likely will engage in treason or harm political opponents. Huge lessons for Australia given all mega trends.
This decision is totally in line with the founding father's position that the POTUS be allowed to govern without the threat of indictment from a politically motivated subordinate. The impeachment provisions deal with behaviour warranting removal of the POTUS.
Incredibly incoherent opinion from the court imo, and just a terrible precedent. Hopefully there will be some sort of reform of institution that makes such terribly bad law much much harder, but one wonders how that could come about in their current political climate.
No one should be absolutely immune for any action. It is not reasonable. It places a person above the law - which should not occur in a democracy of EQUALS.
This is nothing unusual - the executive is usually held subject to parliament: not courts. Parliament makes laws and disciplines itself too. The US situation is that the US Congress and Senate are unwilling to take action... That is just it. The same would happen if a political leaders in Australia... It would be parliament not the executive taking action against itself... Parliament is supreme
No, I'm afraid your analysis is wrong. In Australia, executive action is subject to judicial review. This is guaranteed by s 75(v) of the Constitution, which allows certain writs and injunctions to be sought against 'an officer of the Commonwealth', which includes a minister. There are a few prerogative acts and high political decisions which are regarded as non-justiciable, because they cannot be assessed by reference to legal standards or no appropriate legal remedy can be given. But most executive action can be challenged on administrative law grounds and on its legality. If a minister behaves corruptly in exercising executive power, he or she can be prosecuted for misconduct in public office, convicted and imprisoned. And yes, it happens. Eddie Obeid and Ian Macdonald are currently serving sentences in prison. Obeid did put your argument - that Parliament had exclusive power with respect to his behaviour - but it was rejected by the courts.
@constitutionalclarion1901 thank you - I wasn't aware of that particular clause in constitution ... As point of practically; States and Commonwealth have established office of public prosecutions so the Attorney-general can avoid direct involvement in any prosecution - but that is convention - isn't prosecutions and if to proceed their prerogative . If a minister in a government is to be charged, let alone who decides if their is sufficient evidence to proceed ... And that is the Attorney general in same cabinet - how has that worked out. Wouldn't the only resolution be for the parliament to appoint some commision to deal with such; if not parliament itself. The Executive investigating itself is one of those issues that falls back on good will rather than law?
@ The Offices of Directors of Public Prosecutions are established by legislation - not convention. Decisions about prosecution are made independently by them.
@constitutionalclarion1901 so Attorney generals can't intervene ... I am just going on hearing John Cain JNR talk about the establishment of an office public prosecutions in Victoria... He wanted such issues to directly involved cabinet ... I believe cabinet can override such if they choose ... Be foolish if they did ... Anyway, I'm only a lay person in this regard but my quick perusal of the Victorian legislation includes provision for Director to be dismissed by Gov in Council (which is essentially cabinet) that the Director may request Attorney general to do certain things, and quite a lot about salary sacrifice... It seems that the Director is a part of executive government and can't act independently if the Cabinet decides otherwise - unlike a judge cabinet can sack them ... Doesn't seem that independent I take that you are correct that that there are sufficient legal standards and conventions to deal with almost anything that may arise ... But it will be the things one doesn't envisage that is the issue ... Isn't the only option to have parliament and political process deal with matters that cabinet members create ... We don't seem that different from the USA in this regard Thank you for most informative discussion... Keep up the good work
Were the matter of immunity considered as an act of abstraction, done without a target, I'm sure the court would have been decided otherwise. Sadly the nature of the current majority of that court and the fact that Trump was the target saw that extremes of precedent, interpretation and manipulation, (rather like Trump's business M.O.), saw a distorted & convoluted decision. In short: the Supreme Court majority chose to decided to defend an individual for political reasons.
@ I always say 'and' for Australian and UK civil matters and 'against' for criminal matters. But because I was referring to a US case, I used their terminology instead, out of politeness.
I find it incredible that neither the U.S. electoral system nor the individual political parties do not have a proviso that any candidate for public office, especially such high offices as POTUS, should be a "fit and proper person". One could reasonably assume that the authors of the constitution never envisaged that the country would allow a convicted criminal to run for the presidency.
In fact, the Framers of the Constitution, for all their faults and abiding self-interest, did indeed foresee the possibility of a corrupt or ill-intentioned person getting elected president. The electors of the Electoral College who cast the ballots that actually decide the election could not be themselves elected officials the better to exercise independent judgment to prevent the election of just such an unworthy candidate. This goal implies that the electors are endowed with the power to overturn the will of the voters. Many states have laws against what they term as "faithless" electors. These laws are inherently unconstitutional, but no court has ever made such a determination.
I'm afraid you're wrong on that front. Whilst it is true that many public offices do have this criminal exception [so much so, that many ex-confederate soldiers/politicians had to be pardoned following the civil war in order for them to run for public office] that is not the case for the president. The US constitution only sets out that they must be natural-born, be 35 or over and have been a permanent resident in the US for the past 14 years. If a president is determined to be unfit, then the legislature has the power to impeach and then remove the president.
@@johnp2001 The 14th Amendment also disqualified any candidate for president who aided insurrection against the Constitution after having sworn allegiance to it. Under any normal interpretation of the English language that provision would have rendered Trump unelectable but for the radical and corrupt Supreme Court put in place by the billionaire class.
@@haroldbridges515 Trump has been impeached for insurrection and the indictment failed did it not? This means that he is innocent of insurrection. End of story.
Well thanks for that. I thought that I was the only one who regarded the immunity decision as a (insert-rude-words-here). I mostly do not understand the delays & lack of will shown by law enforcers to engage the obvious & crude insurrection movement led by Trump & how he found so many allies at the top & bottom of US society.
What gives the president exclusively this kind of immunity to discharge his duties? Could not other federal officers claim the need for this kind of immunity in order to discharge their duties unobstructed?
The POTUS is the executive branch responsible for executing the laws of the land (law enforcement). If the threat of criminal prosecution hangs over every official act he makes (making him vulnerable to political lawfare) means he won't be able to execute his duties properly. Cops also hold immunity if they injure / kill someone while performing an official act, unless there's evidence they've committed a crime.
@@chitchensisgodThe Supreme Court has just ruled that the President, unlike the cop, cannot be held accountable by the courts no matter what the evidence is. Apparently, the President would be hindered in carrying his duties, if he was to subject to judicial review. Apparently, a cop is not hindered in carrying out their duties by being subjected to judicial review.
Yes. Indeed, I understand what is so special about the President of the US. The President head of the Executive Branch of government, the President is simply the top bureaucrat. Every member of bureaucracy and military could argue that being subjected to threat of judicial processes hampers and interferes with their ability to make decisions. 😂
@@somluck2813 The potus is the executive branch. Most law enforcement agencies provide immunity. If they didn't no one would work in law enforcement. And the potus could not fulfill his duties properly. It's common sense. This is in the NTs criminal code - 208E Law enforcement officers A person is not criminally responsible for an offence against this Part if: (a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and (b) the conduct of the person is reasonable in the circumstances for performing that duty.
The courts can and do review the actions of law enforcement officers to ensure that their actions are legal, reasonable and appropriate in the particular circumstances. Law enforcement officers can and are charged with criminal offences. The Supreme Court of the US has in effect decided that the actions of the POTUS are not reviewable by the courts and the POTUS cannot be charged with a criminal offence.
I can't pretend to understand the intricacies of all this, but if you're worried, I'm worried. This will embolden Trump, which is the opposite of what is needed in his second term. However, I don't see him getting away with the extraordinary power grab of banning other parties like the Germans allowed Hitler to do. A lot of state officials ignored his demands to overturn the 2020 election results.
The majority judgment did address Trump's argument in relation to impeachment and rejected it. Following is the summary of its argument, as expressed in the syllabus: "Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32-34."
@@constitutionalclarion1901 So unsurprisingly, the judiciary believes that they should always have the final say in matters relating to the separation of powers. Or as Orwell might phrase it: All branches are co-equal, but one branch is more co-equal than the others.
The fundamental reason for the extraordinary majority opinion of these Supreme Court Justices is the fact they were appointed for their conservative views rather than their judicial skills and integrity. This is in stark contrast to the method of appointment of the Justices of the Supreme Court of the UK and no doubt also in Australia, Canada and New Zealand,
No disrespect but you live in a bubble if you can't see that the courts are politically expedient and have scant regard for irrefutable facts and truth.
That is where I landed also. With a much greater perspective of their judgement, its effects, and possible tangents, the bench decided that the number one priority was the preservation of presidential immunity in a context of treachery, insubordination and malfeasance. By surrounding it with opulent promise of even further implications of its reach, it is a frowning shake of the head to those whose aim is the incapacitation of the president through legislative and judicial assault.
Missing the point. The video is about the decision, not the make up of the court. No SCOTUS decision is predicated by "but the court was made up of...."
Doesn’t Australia give its head state - the King - absolute immunity, even for purely private acts? Surely the extent of the President’s immunity has to be judged in that light?
I'm guessing the answer is a hard no. However, the King (long may he reign!) and Parliament are probably both acutely aware of the events of 1649, 1688, and all that followed. So, if the King is considered immune it's because he and Parliament both know that if Parliament enacted a new Act of Succession there would be a different monarch, and that is why the monarch tends to act more reasonably than the president of the USA.
The king has no special immunity as far as I'm aware, especially not for 'private' acts. Whether it's prosecuted or not is another matter. English monarchs can and have been brought before a court before, and Australia inherits that system.
Cops et al get immunity in some (if not all) Jurisdictions. In NT A person is not criminally responsible for an offence if: (a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and (b) the conduct of the person is reasonable in the circumstances for performing that duty.
12:30 the reason us that the impeachment power is delegated to Congress. 12:48 The advice he received from a lawyer was an option mentioned, albeit unlikely, despite Thomas Jefferson having done that precise thing. That is why Congress later amended the law to prohibit the action. 15:10 What he did isn't what you mention. He did what was required by his office as mentioned by the Court.
The very broad immunity laid down in this case is indeed concerning. Could Richard Nixon have successfully pleaded presidential immunity for Watergate? The Roman Republic had similar problems, with Provincial Governors being immune during their Governorship and immediately prosecuted by their political enemies after their term ended. The Romans solved the problem of vicious and partisan political lawfare by accepting the existence of an Emperor in Augustus Caesar with overall absolute power (although the traditional Republican offices such as Consul and Tribune continued to exist). But that was only after a terrible civil war. One wonders if the Americans will do better.
I want to see the blooper reel for this one 😆.. last day for BIden to legally order a drone strike on his opponent 😥I don't think he's gonna do it.. long live the king 👑
He wasnt following orders....! No one asked him to break those laws, or to subvert the constitution.....he did it deliberately, on his own volution......!
@lancepymble6280 So much wrong with the piece - too much to address - no one wins or loses - just a suggestion to do your own research and understand their system.
@@somluck2813 The simple fact is that in the case of the 2020 election there were serious, and since proven, anomalies with the ballot tabulations. The President is tasked with making sure laws are upheld and that the election is fair and that was what he was doing. The cases quoted are political constructs and not facts. The need for immunity stems from Britain and the King's immunity that the Founding Fathers wanted to preserve (not unanimously). It is important for the President to be able to make decisions without having to worry about Civil liabilities post-term, particularly (to quote Ms. Twomey) "in this partisan world".
The head of Australia the English king Charles lives outside the justice system and can never be prosecuted. I think the judges and GGs in Australia who work for him are similarly protected. It is kind of weird in so-called 'democracy'.
The monarch doesn't wield executive power, so the scope of any crime is very small in comparison to a president that has executive power. Also the monarch is not above the law, they just have to be tried in Parliament rather than a court. I would assume the Australian Parliament would have the power to put on trial a governor-general.
@radman8321 interesting. I reckon before the Aus government could do anything about GG - the GG would dissolve the Aus government as he has more powers vested in by the English monarch than the Aus government. The GG has executive powers plus the whole Aus armed forces are at his disposal as a commander in chief.
Clearly, you don’t understand that the monarchy has NO executive power and cannot interfere in government. Their duties concerning parliament are prescribed and bounded with no real discretion. They cannot refuse to sign acts of parliament, orders etc. at the end of an election, they ask the leader of the party with most MP’s if they can form a government, if they cannot then they ask the second party’s leader and so on. If there is no government formed, then parliament is dissolved and new elections.
@LukeXMV. that sounds like a USA assumption. I've never heard that the monarchy or the GG is a "commander in chief" of our military. Our monarchy is a ceremonial one. Can you expand on your statement?
The problem with the U.S supreme court is that it is politically neutral. At the moment it is loaded up with Republican appointed judges. With most of them being picked by Trump, plus these it is a life time appointment.
I think Trump appointed three out of the nine current Supreme Court justices. Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh. Nowhere near most. Biden appointed Ketanji Brown Jackson, so as far as I know, there is only one justice of the Supreme Court who does not know what a woman is.
@@prevsaudi9858 According to uscourts.gov: "Article III judges, including Justices of the Supreme Court, are appointed by the President with the advice and consent of the Senate."
@@kappa7 so if the senate doesn't give consent the person cannot be appointed. In practical terms it's up to the senate whether a nominee is appointed or not. The reason why this distinction is important is nominees are not guaranteed appointment (eg. Bork).
Anne you ask, "Would the founding fathers of the US Constitution really have intended to give absolute immunity to a President who seeks to overturn the operation of that very constitution? You say "It seems unlikely to me, especially when the President is required by the Constitution to take an oath 'to preserve and protect and defend the constitution of the United States'." Well, from one Aussie to another; "what the bloody hell do you think?" Of course "NOT!" So, what is going on here? I don't know anyone who thinks that, no not true, most Democrats believe that. Like them, you accuse Donald Trump of this crime, based on the charges laid against him, with no assumption or respect to his right to presumption of innocence. The Supreme Court ruled he had complete immunity! Yet you continue to push the line that he is guilty because you don't agree with the decision. Do you really think Donald Trump would seek to overturn the operation of that constitution he swore to preserve, protect, and defend? Really? Have you ever considered he might actually have some other intentions and motivations? With the way the Biden administration has weaponised the Justice Department to try and take him down and prevent him from even standing for election, where is your outrage for this behavior, especially now with the pardons Biden issued to his family, Fauchi, Cheney, and Miley, etc., the exact behavior you are seemingly so outraged at, as a foreigner. Your analysis goes off the mark when you assume Donald Trump was not attempting “to preserve and protect and defend the constitution of the United States" when he did what he did. And to have the audacity to speak for all foreigners is a bit rich, I am an Australian as well, and I can see straight through your false biased narrative. You do not speak for me.
Would Donald Trump seek to overturn the operation of that constitution he swore to preserve, protect, and defend? Yes, absolutely. He's already started with the 14th Amendment, s.1 of the Constitution. He hasn't hidden the fact that he'd like parts of the Constitution to be 'terminated' as he puts it. "And to have the audacity to speak for all foreigners is a bit rich". Stop exaggerating. Prof Twomey didn't claim to be speaking on behalf of 'all foreigners'!? One comment you've made that I do agree with though: "The Biden administration has weaponised the Justice Department to try and take him down and prevent him from even standing for election." True, and Biden is hardly in a position to take the high moral ground.
@@mindi2050The changes Trump suggests are not him seeking to overturn the operation of the constitution he swore to preserve, protect, and defend, but rather, he is trying to improve and clarify the constitution; make it work more like the way it was originally intended. You like Twomey show the same bias, considering him guilty, which makes no sense given Trump has sworn to preserve, protect, and defend the Constitution. Why don't you look at it the other way and give him the benefit of the doubt, he never sought to overturn the Constitution, and he was given complete immunity from prosecution by the US Supreme Court for his actions.
@@ThomasLouttit the 14th amendment is already extremely clear on its intentions. trump is trying to overturn it without a supermajority. he has no care for the institutions of america, just like he is not a conservative, he is entirely self-interested.
I don't know what video you watched, but it wasn't mine. I didn't accuse Trump of any crimes or assert that he was guilty. I read out the words from the judgment which set out the accusations in the indictment. You can read the judgment for yourself.
@@constitutionalclarion1901 Oh, come on now, of course it was your video; aren't these comments attached to your video? Do you really think I'm that stupid? I never said you accused Trump of any crimes or asserted that he was guilty. I said, "Your analysis goes off the mark when you assume Donald Trump was not attempting 'to preserve and protect and defend the constitution of the United States' when he did what he did."
I am still mad about Ford pardoning Nixon
What is so special about the office of President of US?
Surely, all public servants should have the same immunity for exactly the same reason as the office of the President of the US has immunity.
All military personnel should also have exactly the same immunity for exactly the same reasons as the President of the US. 😂
I'll throw in the irony that the US Constitutional system has been functioning totally fine for 250 years without the presumption of Presidential immunity. Thus the idea at the heart of the decision that it's urgently, critically necessary rings a little hollow.
nearly 250 years
It was needed because of the absurd case brought against Trump which sought to have him removed from the ballot. But it wouldn't be convenient to talk about that.
@@chitchensisgod Explain how it was absurd.
@@RodWilliams-m7r Smith's main claims were
1. Trump knew he'd lost the election
2. He pressured state officials,
3. His pressure on Pence
4. Various false claims about voting machines and
5. His efforts on Jan 6.
1 is a question of intent and in the ordinary course impossible to prove but particularly so in Trump's case as all evidence pointed to Trump believing he'd won. Smith's evidence that advisors told Trump he couldn't / didn't win is laughable.
2., 3. and 4. are not crimes (in fact violate Trump's freedom of speech) and for 5. no specific claim was made, certainly not insurrection. Probably because SCOTUS earlier ruled 9-0 against Colorado's attempt to throw Trump off the ballot because he was an insurrectionist and ineligible under the 14th amendment.
Trump never attempted to overturn the results of the election. He believed there was sufficient evidence to question the result and demanded Pence send it back to the states so the evidence could be presented. Instead, what we got was a complete clown show.
The Democrats not only rejected the results of the 2016 election they refused to acknowledge Trump as the legitimate POTUS. As is their constitutional right.
The idea of presidential immunity is not new at all. Eg Wiki: "In 1973, amid the Watergate scandal, the Department of Justice's Office of Legal Counsel (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president."
Thank you Prof. Twomey. It's a bizarre situation and any light is good light.
Thanks. I find it hard to fathom how things are turning out, but all we can do is watch and hope for the best.
@constitutionalclarion1901 I understand that in your opinion it's a good thing that the potus has hanging over their head the threat of a (subordinate) prosecutor indicting him for official acts. Wow. You clearly haven't been following the lawfare waged against Trump by the Biden administration. How about you do a video breaking down the 34 felony hush money trial and try and specify the felony Trump was alleged to have committed..?
Also are you aware of any instances where Biden violated the constitution..? I can think of at least 5. Trump ? Not one.
@prevsaudi9858 In the New York felony trial each juror was convinced beyond all reasonable doubt that 1) Donald cooked the books, and 2) he did so to hide a crime. That's all the statute requires of the jurors. Remember, New York hosts the world's leading stock exchange, and they really, really, don't like financial crooks.
@@prevsaudi9858Trump/Biden is irrelevant. The Supreme Court has set the law for the foreseeable future.
The Supreme Court has pretty much said that any President's decisions for the foreseeable future will not be subject to judicial review.
Thus a Democratic President will have the same powers and immunity that Trump has. 😂
Thank you
It definitely gave me a better idea of what's going on. Might give me nightmares about the future but that's the cost of confronting reality.
You'd think a person would not be elected in any case after those actions, and even more so knowing the judiciary would offer no protection those actions in future.
Thank you. As a lay person I really struggled to grasp this whole whole issue, I was truely taken aback the Court findings. I shall watch this video again and ponder.
What would happen to the Australian Federal Parliament if everyone voted informal at the next election?
What are you on about? 😂😂
Do you really think it’s credible that not one individual would vote for a candidate in an election for a seat in the House of Reps? You may as well say “what if everyone died before they could vote?”, “what if the zombie apocalypse arrived just as they begun counting votes?”
It's pretty clear, I think, that the justices were reasoning backwards from their desired conclusion.
That may very well be true, but that's hardly a conclusive argument. The one thing this decision gets right was to boot some of it back to the Circuit Court due to the belief that in many instances the individual circumstances would need to be argued.
@johnp2001 None of this is booted back to the Circuit court. In performing his official duties, the potus is immune from criminal indictment. It's been the established lasw of the land for decades.
Otherwise Obama (drone strike killings), Bush (Iraq and Afghan wars), Clinton (missile strikes into Bosnia) and Biden (criminally negligent withdrawal from Afghanistan) would have been indicted and presumably found guilty.
If you read the judgment, much of it is sent back to the District Court. However, that was before Trump was re-elected. Due to the practice of the Department of Justice, he will not be prosecuted during his term of office.
@constitutionalclarion1901 I read it that all of it was sent back to the District Court for it to apply the immunity decision. It was an administrative move.
THE PRESIDENT OF THE USA 🇺🇸 is a KING 🤴 by voted majority or minority 😀!!!
A president who (apparently) with criminal immunity, can order a department to act illegally; who also has the power to pardon anyone for acts in the commission of that order - is a very dangerous person indeed.
Agreed. Of course, many would argue that the legislature still has the ultimate sanction here in that it can remove a president that it considers to be acting improperly. I think the biggest failure with regard Trump isn't the Supreme Court but rather the failure of the Senate to reach the 2/3 majority.
Yep Joe shouldn't have that power seeing that he is also to senile to stand trial anyway
You mean the Big Guy right?
@@alvanrigby6361 Voters with low political knowledge pick a presidential candidate as a fashion accessory, essentially a brand enhancement for themselves.
Biden and Harris were such failures, and the Democrat bench so weak, that backing Democrats no longer makes anyone look smart or fashionable.
Backing Trump before The Fine People Hoax had been debunked was unthinkable to people protecting their personal brand.
But after the massive failures and treachery of the fake news, and Trump pumping his fist after an assassination attempt, and coming back from so far behind, he's clearly the hero in the American story.
Wearing a Maga hat is no longer dangerous. Usually.
@ The impeachment process is clearly a failed mechanism for checking presidential power. In four presidential impeachment trials, there has been not one conviction. If inciting an insurrection in which the senators/jurors' own lives were in danger did not merit a conviction, it's hard to imagine what would.
Haven't watched this yet, but holy moley, this will stir up the trolls (troleys) 😂
Oh yes....
What a fascinating yet bizarre situation. The bribery element was completely unexpected and concerning.
My goodness and here I thought the Commonwealth/Whitlam video had a lot of cookers in the comments.
@@Gotoooooo Meds
I reckon that this shows how much more mature Australia’s constitution is than the American, which seems to be stuck in the age of Kings.
True. In 1776 electing a "king" was seen as revolutionary. Today..... we have all moved on, the US....nah.
Any Constitution is only as good as the will and means to apply it. Scholars may analyse Constitutions in the context of the times in which they were drafted, but Constitutional Courts are obliged to interpret them as they are written. If the Constitution is found to be out-of-step with contemporary mores, it is then up to the Legislature (i.e. Government) to organise a valid means of amending or redrafting the Constitution -- or modifying prevailing attitudes.
Australia's Constitution is an Act of the British Parliament, does not incorporate a Bill of Rights, retains as Head of State a citizen and resident of a foreign country, and is almost -- but not quite -- impossible to amend. It was debated and drafted at a time when most State representatives were parochially preoccupied with 'State rights' and the nation was suffused with a colonial mindset that is, even now, only partially dissipated.
Under the circumstances, I find it difficult to argue for our Constitutional 'maturity'.
@@malcolmfletcher7295 interesting comment, but I have to disagree on a couple of points. Insisting that a constitution has to be interpreted as was written is "originalism", and an utterly stupid way of running a country. Constitution must be interpreted in light of Contemporary norms (think the US "right to bear arms"; allows some weapons unthinkable in 1776 but allows others). Second, your suggestion the lack of a bill of rights suggest the Australian constitution is "not mature". Such documents cement rights, privileges and responsibilities in the age and times it was written. Yes the Australian constitution should be slightly easier to amend, but that we can achieve so much change and progress without constantly updating is to me speaks in its favour. Even the whole point about the Monarch; given its complete lack of impact on anything to do with our daily lives, it remains a weird ineffective anachronism. The only people who get passionate about such trivia usually base their views on jingoism, one of the more appalling "isms".
@ Unfortunately your argument is for the inclusion of redundant facets, particularly a Bill of Rights as our constitution and consequent laws make such an addendum unnecessary and cumbersome. The test of our constitution is its longevity, and continuity, particularly during two world wars which only a handful of countries managed to maintain. Therefore it must have more going for it than not going for it.
@@anthonywatts2033 Words had a specific meaning when the constitution was drafted, and the Federalist Papers and other documents tell us what the framers intended. The 2nd amendment gives you the right to bear arms. The living and breathing document analogy doesn't change that. That' absurd theory is how we got one of the worst supreme court decisions of all time - Roe vs Wade.
It's not a great suprise (the majority ruling) that the highest court in the US came to such a banal conclusion considering they are the only justices in the land who are not subject to independent ethical scrutiny. Self regulation for the ultimate interpreters of the constitution! Ridiculous.
Remember recalling the quote "the Constitution says what 5 of 9 Judges say it does" in regards to the US - cannot recall the source. Whilst a generally applicable one, by Jove it seems to hit much harder with regard to the US Supreme Court than, say, our High Court
And judges that are generally appointed for partisan reasons to further a particular political outcome...
I get the impression that some people think that the office of President of US is unique and that decisions made by the holder of the office should not be subject to review by the judicial branch of government.
I suspect that in Australia, UK, Germany, Canada, Japan etc the idea the PM would get the same immunity as the US President would be met with mirth.
Highlights how law is perceived from different traditions/societies. Which raises the fear of Australia being infected with this sort of rulings etc. Given that our constitution is partially based upon the US it would be very interesting to see the areas of both that have shifted/changed since Federation.
@@JohnCran Wot?
I'd love to see a video on immunity in australia, particularly on laws which don't express that they "Bind the crown" and how that works
This is from the NT's criminal code
208E Law enforcement officers
A person is not criminally responsible for an offence against this Part if:
(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and
(b) the conduct of the person is reasonable in the circumstances for performing that duty.
Yes, I will do one about immunity in Australia. Still working on the issue. It's a complex one (and there's no single judgment that fully addresses it, unlike in the US).
Absolute insanity , although everyone getting off Scott free from the illegal robodebt debacle , the Paladin contract corruption etc etc doesnt make Australia much better
Moral of the story: election of a head of state who is also head of government is very difficult to implement in practice. The US has been trying to do it for over 200 years and this is where they’ve landed.
Indeed, I also think that is the root of the problem.
There should be a separation between the Head of State and the the head of the Executive Branch of government.
I think also, even the US Government thinks their system of government is perhaps not the best form of government.
I don't recall any system of government being set up in any country, at least since WWII, where the US has had influence, replicating the US model.
The way I see it, the "Head of State" in the US sense is the Congress, who directs (through appropriation, legislation etc) what POTUS can or cannot do. i.e. POTUS is to Congress in the US as Parliament is to the Monarch in Australia. What can be confusing to most people is how this power relationship is inverted.
The founders saw the advent of a prime minister, imposing himself between the head of state and the legislature, as a threat to liberty. I think it is pretty clear by now they were wrong. Professor Twomey called her book on the powers of the head of state in a Westminster system The Veiled Sceptre. Donald Trump returns to power in a few hours and he clearly intends to wield the presidential sceptre entirely unveiled.😥😠
@ Very true. Even in countries were the US effectively wrote the constitution (Japan, Iraq), the system was parliamentary, not presidential. The one exception is the second Afghan Republic. There seemed to be a fair amount of support among the Afghans themselves to restore the former king as a figurehead head of state. 800 delegates to the Loya Jirga held in 2002 to establish the transitional government signed a petition in support. The US government (Bush 43 administration) pressured him to withdraw. They insisted on a president. History records how that ended.
@@alandyer8025
Not sure I agree with that, because the President of the United States has the power to make executive orders and I assume he has some authority over the Senate because he has just stopped the sale of TikTok which was a Senate decision, I’ll admit I don’t know much about the US system but to a layman the President is head of state.
It somewhat amusing to see that the US fought a war for Independence against the notion of Monarchy but the US President has a lot, lot more power and immunity than Monarchs of the UK, Canada, New Zealand, Australia, Japan, Sweden, Denmark, etc. 😂
The US President certainly has more power, but the UK monarch has a greater immunity. The reason the immunity of the UK's monarch is less controversial is due to the lack of substantial power that the monarch now has.
@@constitutionalclarion1901 I believe it's the lack of power being wielded, rather than not having that power. The monarch (of UK, Australia, etc.) still has (on paper) more power than the USA president, they just choose not to use it because they know civil wars would follow.
@@peter-d9f3l What power do you think the monarch has in Australia 'on paper' or otherwise? The monarch has no executive power in Australia.
@@mindi2050 The monarch holds all executive power in Australia. Clause 2 of our constitution allows them to delegate some or all of that power to the governor general during their "pleasure". Which means they can take back any or all of that power at a whim.
The executive power vested in the monarch by s 61 is made 'exercisable' by the Governor-General. That means that the monarch cannot exercise that executive power - only the Governor-General can.
This decision basically accepts as correct the arguments King Charles I ran at his trial without success.
It is logically impossible to say that the most powerful and consequential member of society is immune from prosecution while everybody else must answer for crimes committed.
Your logic is flawed.
The President of the USA is a "position," not an "individual person."
Presidents are called upon to do things that normal people are not, hence the need to legally differentiate between the two; it makes perfect sense and is completely logical.
King Charles III has immunity.
@@peterslocomb152Immunity? No. That was settled in 1645, when his ancestor and predecessor as king, Charles I, had his head chopped off by Parliament.
@@peterslocomb152 King Charles III has immunity from criminal prosecution in the United Kingdom. This is because the common law principle of "sovereign immunity" states that the monarch cannot be held criminally responsible. As the reigning monarch of the United Kingdom, King Charles III is immune from criminal and civil prosecution, known as crown immunity or sovereign immunity, even if he killed someone. This is a long-standing constitutional convention that the monarch can do no wrong.
What a sordid mess our Presidency has become. Thank you for your analysis of these complex issues.
I think a big thing that was missed in your video, is the fact that congress can impeach the president at any time. This is the limitation on presidential power that was intended in the US constitution, not acts of the court, which presumably would only ever occur by the actions of a justice department run by a president's political opponents.
But you are deluded that impeachment has any juridical function. It is purely a political game with no relation to justice, law or right. Impeachment has nothing to do with the rule of law. USA is a joke of a nation in legal terms. Your constitution, your supreme court, your presidency, all have the legal IQ of a three year old. Your nation is a legal laughing stock and your supreme court judges are corrupt children. Grow up America! Get a real constitution, get a real head of state, not a dictator.
Why would you make that presumption? My presumption is that all public servants including members of the justice department make decisions based on the merits of the case. If a decision maker made a decision because they liked or didn't like the President that would obviously be an invalid consideration.
It seems to me that presumption that public servants would not act in accordance with their oath to uphold the Constitution, is somewhat a sad reflection of what what US citizens think about themselves.
The penalty for impeachment is removal from office. If that is the only possible penalty for any crimes committed in office, wouldn't that encourage more severe crimes?
The reason I didn't include the impeachment argument (apart from a timing/length issue) was that it was rejected by the majority judgment. Below is the summary of Trump's argument about impeachment, as set out in the syllabus:
" Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32-34."
The problem with impeachment is that Trump was impeached, but not by a big enough majority to succeed. In practice, it needs both main parties to be angry with the president.
One should not make the mistake that the conservative majority of the Supreme Court of the USA was acting in good faith when they wrote that Opinion.
@Gotoooooo When people tell you who they are, believe them. Their consistent promotion of their political agenda is an observable pattern; this being in direct contradiction of the duty of their office. The contortions they perform in the formulation of the _constitutional rationale_ they concocted to give The Once and Future President immunity was grotesque.
The comments make it obvious that a lot of Americans follow this channel.
Thank you. Even though I came to a different conclusion nevertheless, your points are entirely valid.
Thanks. Much appreciated.
How can you possibly be immune from scrutiny from the judicial branch if the judicial branch is the only thing which can decide what that immunity applies to, via scrutiny
The issue is whether it's (part of) an official act or not.
If it is (eg. Obama drone striking US citizens who were terrorists) then you're immune, if it's not (eg. Biden raping Tara Reid) then you're not.
The rulings show the fallability of having members of the highest court in the land elected by political process
To be fair, it's a lot better all those judges in the United States who are elected in popular elections. That gives them an incentive to be seen to be "tough on crime" or whatever the electorate wants at any given moment, even if it contradicts the principles of justice, judicial independence, and the rule of law.
There is a school of thought (that I'd like to see Prof Twomey's take on) that Australian high court justices aren't exactly free from systemic bias, either. Because they are chosen by the Federal government, those chosen may have a bias towards federalism vs the interests of states and territories.
@@davidc7002 the justices on the SCOTUS are not elected. They are nominated by the executive and confirmed by the legislature.
And we hold out these people as our allies and protectors! The defenders of the free world! Really?
The value, in my mind, of explanations such as this is that it shows the level to which the United States has fallen. It was once a beacon of democracy but has descended (as did the Roman and many other empires) to a point where democracy and the rule of law no longer has any real meaning. I feel sorry for the average American who probably is unaware of this situation.
Thanks for another riveting discussion.
Or had been hoodwinked by a hyper-partisan media in to believing one interpretation over an other...
"Would the founding fathers of the US Constitution really have intended the Constitution to give absolute immunity to a president who seeks to overturn the operation of that very Constitution?"
The founding fathers didn't envision any immunity for the president, otherwise they would have included such in the Constitution. The presidential immunity which has been developed after the fact (starting nearly a whole century after the adoption of that Constitution) has come from creative reinterpretation of clauses which simply describe the duties of the president.
And the founding fathers were completely opposed to the idea of having a king, so there's no way they would have granted king-like powers to the president.
If the potus is answerable to a (rogue) subordinate, the executive branch cannot function as intended by the founding fathers.
The Court held that, neither Congress nor the courts have the authority to limit the potus’s exercise of “core” authorities the Constitution guarantees to the potus - such as the power to pardon and remove executive officers. Congress, with a few exceptions, may not limit these potus authorities through specific or generally applicable statutes.
The majority framed its analysis by describing the framers’ conception of the presidency. Chief Justice Roberts wrote that the framers sought to empower a single constitutional officer with “ultimate authority” to “encourage energetic, vigorous, decisive, and speedy execution of the laws.” According to the majority, the framers believed this energy would enable the potus to guard the US from foreign attacks, properly administer the nation’s laws, and protect the people’s property and liberty. In order to fulfill these duties, the potus would need “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” The majority noted, though, that while the framers’ conception of a powerful presidency supports its immunity framework, “relevant historical evidence on the question of potus immunity is of a ‘fragmentary character,’” and therefore it must rely more fundamentally on separation of powers principles and prior rulings defining those principles.
@@prevsaudi9858Indeed, obviously the intention is that the rule of law applies to all except the President.
@@somluck2813 How do you figure that ?
The President has immunity. No other Western democracy grants such immunity to its political leaders.
What is so special about the President of the US? Other members of the Executive Branch of government are required to make life and death decisions in split seconds eg police and military personnel. They do not get immunity.
Just asking as an outsider. If such immunity was suggested in Australia, for political leaders, it would be met with mirth and bemusement?
Another great video
Starting constitutional law at uni this semester, glad I have a head start from these videos!
Terrific. Good luck with your course. The more you pay attention to the political/constitutional controversies that are occurring around you, the more sense your studies will make to you.
@ thanks for the kind words! Looking forward to it
It seems to me the US system is designed for deadlock.
Where the Congress passes a law , the President can veto it, the Congress can overturn that veto(as I understand it.), with a 2/3rds majority.
Supply (using our terminology.), can be blocked and no one has power to end it, unlike the GG here or State Governor in a state.
It just seems a weird system to me .
What a nice little treat for the Clarionettes!
There is a logical disconnect in respect of the Supreme Court's "opinion" on Presidential immunity against prosecution for criminality during execution of his official duties and the requirements of the Presidential Oath (or Affirmation) at Section 1 of Article II, and the provisions of Section 4 of Article II of the US Constitution. It has been suggested by eminent commentators in the US that the Supreme Court's opinion was "made out of whole cloth" - that the Justices were making it up as they went along, secure in the knowledge that they were the ultimate authority on what the US Constitution did or did not mean! As with the Australian Constitution, the US Constitution needs a complete re-write, to reflect the current situation and the way forward, rather than the situation one (or 2 1/2) centuries ago! I shall not hold my breath waiting for either to occur!!
There's no disconnect. The question is whether the act is official or not. Trump's defence themselves said, as an example, that the potus staging a coup to retain power is clearly not an official act. Yet ordering the assassination of a terrorist leader and / or the killing of innocents during that operation may bring indictments from a nefarious and politically motivated subordinate.
Should Obama be indicted for ordering drone strikes which murdered US citizens..?
@@prevsaudi9858 Section 4 of Article II states that the President, amongst others, shall be removed from Office on Impeachment for and Conviction of ..high crimes and misdemeanors. SCOTUS says no, the President has absolute immunity. Both cannot be correct! In his Oath (or Affirmation) POTUS swears (affirms) to faithfully execute the Office of POTUS and ...will preserve, protect and defend the US Constitution. How does being immune from all criminal prosecution square with that? I believe the SCOTUS opinion is "ultra vires" - but how is it to be corrected?
Just so I'm clear, are you saying that because of this decision, the potus can't be impeached ?
@@paulbowler2760 you didn't answer the earlier question about Obama killing US citizens (terrorists) with drone strikes. I take it he should be indicted? How about Biden's criminally negligent withdrawal from Afghanistan killing 13 soldiers and hundreds of Afghans. Should Biden be indicted?
@@prevsaudi9858 I think that's what he's saying - criminal immunity for official acts means he can't be impeached.
He clearly has no idea what this case is about, what the impeachment clause is about and he doesn't understand the meaning of high crimes and misdemeanors.
I thought that 'the rule of law' meant no one was above the law.
Is the US no longer a country where 'the rule of law' exists?
Has the US become a country where 'the rule by law' applies?
jesus these comments are disappointing
keep up the good work anne
Thanks.
I suppose this is not an area where you plan to spend too much time but I'd be interested to hear your speculation about how the Supreme Court would interpret this if the target/victim of alleged criminal action was the judicial system itself. Of course the courts are very interested in preserving their own independence and rely on the cooperation of the executive to achieve this. For example does this decision give immunity to acts taken by the president to influence, reward, punish etc a justice that is not supporting their policy/wishes?
The executive manages the court buildings and provides marshals and additional security to allow the functioning of the judiciary, I suspect this sweeping immunity would narrow quite quickly if the president interfered with these functions.
I'm afraid I'm not qualified to speculate on that. I'd need to have a deeper knowledge of how the US Supreme Court treats the separation of powers and the extent to which it tends to qualify or depart from precedents. Even then, it would depend very much on the circumstances and how the case was argued.
Oh dear, from what you say about their decision it seems that the Supreme Court thinks the President should be immune from prosecution not so much because he is head of state but because he is head of government, and that the executive branch should be independent in the sense of completely unnaccountable. In the Westminster system on the other hand it could almost be said that the primary purpose of our constitutional arrangements is to ensure that the executive is accountable (to both the legislature and the judiciary, in different ways) for its actions. It seems strange to think that both systems originated in the struggle against the unaccountable autocratic power of the monarchy. Surely this SC decision is taking the principle of separation of powers to an extreme conclusion (and at the expense of the principle of checks and balances). You can't even say that the President is accountable to the people (at the next election) if he is legally within his rights to tamper with the result of an election.
The executive branch (the potus) is answerable to the judiciary who can rule the executive branch's actions are unlawful. The executive branch is also answerable to congress (legislature) who may disallow laws passed by the executive.
@@prevsaudi9858 Thanks.
I think an important part of the puzzle to include is that presidents can be impeached by the Senate. It's not up to the courts per se. I'm no expert by any stretch but my understanding is impeachment is the primary remedy for bad behaviour, not the courts.
Yes, you've demonstrated more knowledge on the topic in one sentence than one of Australia's supposedly leading constitutional law "experts".
I addressed the main arguments in the case concerning immunity, and did not digress onto the separate issue of impeachment. But here is the summary of how the majority dealt with the impeachment argument, as set out in the syllabus:
"Trump asserts a far broader immunity than the limited one the Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32-34."
@@chitchensisgod Although what is the penalty that can be imposed by the Senate? Removal from office and, potentially, exclusion from future office... not quite the same as the consequence for a criminal conviction. It also requires a 2/3rds majority to convict, making it extremely unlikely to succeed. What did Mitch McConnell say upon not impeaching...: “We have no power to convict and disqualify a former officeholder who is now a private citizen." ..." impeachment was never meant to be the final forum for American justice"... “We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one."
@@kappa7 I think you'll find McConnell's comments were in relation to the impeachment of Trump after he left office. An outrageous abuse of law and unconstitutional. Hence Chief Justice Robert's not presiding over the trial.
If the potus murdered someone they'd be impeached and once removed from office they would be criminally charged.
@@kappa7 the Senate removes and then the ex POTUS faces criminal prosecution as a private citizen.
My understanding is that the Supreme Court has been stacked with political hacks over many years and doesn't really function independently of political pressure. I believe this is due to the political process the US has for selecting Justices. I would love to hear more about the likelihood of a similar thing happening to our High Court here and if the way our Justices are chosen could also be manipulated, if a political party decided, to cause similar stacking.
I agree with you about the US courts. I'm not a lawyer and just a casual observer but I've noticed over the years that despite attempts at "political" appointments the vast majority of our Justices tend to concentrate on what the law is and how it applies rather than make political judgements. I hope that's the way it remains and our compulsory retirement age seems to help with that.
@@almango873 Good point about the retirement age. I have noticed the same thing about the High Court decisions but I don't understand why they are not political.
Thanks, when I see this stuff going down overseas, the morei precious I think the Australian constitution and electoral system is.
I think they play a large part in keeping the oligarchs and wannabe dictators at bay.
This and three year terms gives us regular opportunities to ditch any government that underperforms or gets out of line.
4:24 I love how the colour of the text box matches your clothing 👏🤭
Thanks. I mostly do it so that it's easy for me to scan through my videos and find the one I want, because I associate things more quickly with colour. It's just a good sorting indicator.
@@constitutionalclarion1901 just not the color of the constitution 😆
If these videos continue (and I very much hope they do), you may need to add more contrasting colour accessories! Or re-arrange the books in the background?
Wonderful precis and analysis, Professor. As I suspect you know, the ruling was greeted with a great deal of shock by much of the legal establishment and constitutional scholars in the USA, as well. Many constitutional experts serving as commentators for US news outlets expressed surprise that the Court was even taking up such a case, which most of them - outside of the Federalist Society and related bastions of Unitary Executive theory - considered without merit, especially given how firm and emphatic the Circuit Court's ruling was.
One of the best explanations I have heard for the Majority's eagerness to stake out such a radical new doctrine of presidential immunity, which would seem to fly in the face of the founding fathers' decision to establish a republic rather than a monarchy in the first place (ironic in itself, of course, given the way the powers of the British monarch and his viceregal representatives evolved compared to their republican chief magistrate, even before this ruling) is that four of the justices in the majority: Chief Justice Roberts, as well as Justices Alito, Gorsuch and Kavanaugh, all worked as lawyers in the executive branch under Republican presidents. All of these men found it frustrating that the courts constrained Presidents Reagan, Bush, and Bush from taking the "bold" action they desired. These junior members of Republican-led justice departments have now had their revenge. The Chief Executive need not worry about the interference of those pesky courts and their "rule of law" nonsense anymore!
This decision merely established case law for the long established position that the POTUS cannot be charged with a crime for discharging his official duties. That's why Obama won't ever be charged with murdering US citizens.
It's actually not that difficult.
I have worked for the highest court in Australia, for the federal Parliament and for the Cabinet Office of New South Wales - so in all three branches of government, and at both State and federal level. One thing I have learned is that everyone thinks they are in the right and that they are being constantly frustrated by another branch or level of government, and that everything would be wonderful if the limits on their powers disappeared. Another thing I have learnt is that having restrictions on powers is absolutely essential, even though it is frustrating.
How would the POTUS be able to overturn an election ?
@@chitchensisgodnumerous ways firstly they could get an order from a State court to do a signature match on postal votes
@@garyholtzman5155 potus immunity is long established. It's neither new or radical. There's nothing controversial about this. A system in which the potus (the executive branch) can be indicted by a subordinate would see the system collapse- and is exactly what the founding fathers were afraid of, hence the impeachment clause. This only became a case because of Jack Smiths baseless, unconstitutional and election interfering attacks on Trump. No potus before trump had ever been indicted and Smith's appointment was a shame, highlighting the obvious dangers with rogue prosecutors wielding such power.
How would the POTUS be able to overturn an election?
"It is my job to ensure valid elections ... and only elections that elect me are valid."
@himbo754 So the 2020 election wasn't valid?
By following the path Drumpf tried in 2020, and would have succeeded if it weren't for a few brave individuals of the same party in positions of authority elsewhere in the chain...
[Apologies for mixing a few metaphors there...]
@@garethaethwy So the 2020 election was valid. Trump sought to have the slates of electors sent back to the states so the allegations of fraud could be presented and investigated and various cases slated for the Supreme Court could be heard (eg. The unconstitutional changes to the election laws in various states such as PA).
Oh Professor, it is always made evident why you avoid a lot of these topics when some very strange folk show up in the comments. But yes to the Westminster world, this seems beyond the pale. To be able to lawfully attempt to overturn an election, in an electorally representative democracy is quite beyond my ken.
It is really quite simple. Supreme Court judges are politically motivated appointments, rather than being based on merit. Supreme Court judges can & do interpret the laws however they wish according to their political interests, rather than taking an objective view of the law.
In summary, the United States is a sham democracy which only holds up for as long as the people believe that the democracy is real, which does not seem to be changing any time soon.
Then, without any true representation of the will of the people, some are left wondering why people like Luigi become a folklore hero - but had a true democracy been in place to make the necessary societal changes to be in the interests of the people rather than the oligarchy, then the circumstances which led to violence wouldn't have even been present in the first place for it even to be a thing in the first place.
I expect to see far more violence in the United States in the short to medium term as more people become disillusioned with their institutions.
In the US system it seemed far beyond the pale as well, until radical jurists from the Federalist Society, aided by Mitch McConnell and Donald Trump, were able to take control of the Supreme Court. Constitutional theories that were considered "fringe" outside of the Claremont Institute and other far right circles eight years ago are now the law of the land.
But are his agents and servants in those broadly construed acts also immune in some way after performing their portion of or any subsidiary acts advancing the overall scheme? Is the President's intents thwarted by the full effect of the law still applying to his agents and servants or do the various immunities cascade along? Does his immunity invade the sovereign states' powers? Do these immunities apply to the state governors at their level as well?
Spot on Prof … unlikely the founders originally contemplated the way the current Supreme Court rules. Carte Blanche for a person who who likely will engage in treason or harm political opponents. Huge lessons for Australia given all mega trends.
This decision is totally in line with the founding father's position that the POTUS be allowed to govern without the threat of indictment from a politically motivated subordinate.
The impeachment provisions deal with behaviour warranting removal of the POTUS.
Incredibly incoherent opinion from the court imo, and just a terrible precedent. Hopefully there will be some sort of reform of institution that makes such terribly bad law much much harder, but one wonders how that could come about in their current political climate.
Wow, it’s no wonder america gets itself onto the messes it does.
No one should be absolutely immune for any action. It is not reasonable. It places a person above the law - which should not occur in a democracy of EQUALS.
This is nothing unusual - the executive is usually held subject to parliament: not courts. Parliament makes laws and disciplines itself too.
The US situation is that the US Congress and Senate are unwilling to take action... That is just it.
The same would happen if a political leaders in Australia... It would be parliament not the executive taking action against itself...
Parliament is supreme
No, I'm afraid your analysis is wrong. In Australia, executive action is subject to judicial review. This is guaranteed by s 75(v) of the Constitution, which allows certain writs and injunctions to be sought against 'an officer of the Commonwealth', which includes a minister. There are a few prerogative acts and high political decisions which are regarded as non-justiciable, because they cannot be assessed by reference to legal standards or no appropriate legal remedy can be given. But most executive action can be challenged on administrative law grounds and on its legality.
If a minister behaves corruptly in exercising executive power, he or she can be prosecuted for misconduct in public office, convicted and imprisoned. And yes, it happens. Eddie Obeid and Ian Macdonald are currently serving sentences in prison. Obeid did put your argument - that Parliament had exclusive power with respect to his behaviour - but it was rejected by the courts.
@constitutionalclarion1901 thank you - I wasn't aware of that particular clause in constitution ... As point of practically; States and Commonwealth have established office of public prosecutions so the Attorney-general can avoid direct involvement in any prosecution - but that is convention - isn't prosecutions and if to proceed their prerogative . If a minister in a government is to be charged, let alone who decides if their is sufficient evidence to proceed ... And that is the Attorney general in same cabinet - how has that worked out. Wouldn't the only resolution be for the parliament to appoint some commision to deal with such; if not parliament itself.
The Executive investigating itself is one of those issues that falls back on good will rather than law?
@ The Offices of Directors of Public Prosecutions are established by legislation - not convention. Decisions about prosecution are made independently by them.
@constitutionalclarion1901 so Attorney generals can't intervene ... I am just going on hearing John Cain JNR talk about the establishment of an office public prosecutions in Victoria... He wanted such issues to directly involved cabinet ... I believe cabinet can override such if they choose ... Be foolish if they did ... Anyway, I'm only a lay person in this regard but my quick perusal of the Victorian legislation includes provision for Director to be dismissed by Gov in Council (which is essentially cabinet) that the Director may request Attorney general to do certain things, and quite a lot about salary sacrifice... It seems that the Director is a part of executive government and can't act independently if the Cabinet decides otherwise - unlike a judge cabinet can sack them ... Doesn't seem that independent
I take that you are correct that that there are sufficient legal standards and conventions to deal with almost anything that may arise ... But it will be the things one doesn't envisage that is the issue ... Isn't the only option to have parliament and political process deal with matters that cabinet members create ...
We don't seem that different from the USA in this regard
Thank you for most informative discussion... Keep up the good work
Were the matter of immunity considered as an act of abstraction, done without a target, I'm sure the court would have been decided otherwise. Sadly the nature of the current majority of that court and the fact that Trump was the target saw that extremes of precedent, interpretation and manipulation, (rather like Trump's business M.O.), saw a distorted & convoluted decision. In short: the Supreme Court majority chose to decided to defend an individual for political reasons.
Why do you say ‘V’ when in the UK and NZ the “V” is read as “and” ?
… or “versus”
@ I always say 'and' for Australian and UK civil matters and 'against' for criminal matters. But because I was referring to a US case, I used their terminology instead, out of politeness.
I find it incredible that neither the U.S. electoral system nor the individual political parties do not have a proviso that any candidate for public office, especially such high offices as POTUS, should be a "fit and proper person". One could reasonably assume that the authors of the constitution never envisaged that the country would allow a convicted criminal to run for the presidency.
Rubbish.
In fact, the Framers of the Constitution, for all their faults and abiding self-interest, did indeed foresee the possibility of a corrupt or ill-intentioned person getting elected president. The electors of the Electoral College who cast the ballots that actually decide the election could not be themselves elected officials the better to exercise independent judgment to prevent the election of just such an unworthy candidate. This goal implies that the electors are endowed with the power to overturn the will of the voters. Many states have laws against what they term as "faithless" electors. These laws are inherently unconstitutional, but no court has ever made such a determination.
I'm afraid you're wrong on that front. Whilst it is true that many public offices do have this criminal exception [so much so, that many ex-confederate soldiers/politicians had to be pardoned following the civil war in order for them to run for public office] that is not the case for the president. The US constitution only sets out that they must be natural-born, be 35 or over and have been a permanent resident in the US for the past 14 years. If a president is determined to be unfit, then the legislature has the power to impeach and then remove the president.
@@johnp2001 The 14th Amendment also disqualified any candidate for president who aided insurrection against the Constitution after having sworn allegiance to it. Under any normal interpretation of the English language that provision would have rendered Trump unelectable but for the radical and corrupt Supreme Court put in place by the billionaire class.
@@haroldbridges515 Trump has been impeached for insurrection and the indictment failed did it not? This means that he is innocent of insurrection. End of story.
There are surely some important aspects of the very recently published Jack Smith report volume one which could usefully supplement this treatment?
No, none at all. His report was a disgrace to the rule of law.
Well thanks for that. I thought that I was the only one who regarded the immunity decision as a (insert-rude-words-here). I mostly do not understand the delays & lack of will shown by law enforcers to engage the obvious & crude insurrection movement led by Trump & how he found so many allies at the top & bottom of US society.
What gives the president exclusively this kind of immunity to discharge his duties? Could not other federal officers claim the need for this kind of immunity in order to discharge their duties unobstructed?
The POTUS is the executive branch responsible for executing the laws of the land (law enforcement). If the threat of criminal prosecution hangs over every official act he makes (making him vulnerable to political lawfare) means he won't be able to execute his duties properly. Cops also hold immunity if they injure / kill someone while performing an official act, unless there's evidence they've committed a crime.
@@chitchensisgodThe Supreme Court has just ruled that the President, unlike the cop, cannot be held accountable by the courts no matter what the evidence is.
Apparently, the President would be hindered in carrying his duties, if he was to subject to judicial review.
Apparently, a cop is not hindered in carrying out their duties by being subjected to judicial review.
Yes. Indeed, I understand what is so special about the President of the US. The President head of the Executive Branch of government, the President is simply the top bureaucrat.
Every member of bureaucracy and military could argue that being subjected to threat of judicial processes hampers and interferes with their ability to make decisions. 😂
@@somluck2813 The potus is the executive branch. Most law enforcement agencies provide immunity. If they didn't no one would work in law enforcement. And the potus could not fulfill his duties properly. It's common sense.
This is in the NTs criminal code -
208E Law enforcement officers
A person is not criminally responsible for an offence against this Part if:
(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and
(b) the conduct of the person is reasonable in the circumstances for performing that duty.
The courts can and do review the actions of law enforcement officers to ensure that their actions are legal, reasonable and appropriate in the particular circumstances. Law enforcement officers can and are charged with criminal offences.
The Supreme Court of the US has in effect decided that the actions of the POTUS are not reviewable by the courts and the POTUS cannot be charged with a criminal offence.
Too complicated for me. Glad I am an Australian
As a multiple convicted felon would Trump be granted a visa to visit Australia?
I can't pretend to understand the intricacies of all this, but if you're worried, I'm worried. This will embolden Trump, which is the opposite of what is needed in his second term. However, I don't see him getting away with the extraordinary power grab of banning other parties like the Germans allowed Hitler to do. A lot of state officials ignored his demands to overturn the 2020 election results.
Let's all ignore the constitutional purpose of a presidential impeachment trial.
The majority judgment did address Trump's argument in relation to impeachment and rejected it. Following is the summary of its argument, as expressed in the syllabus:
"Trump asserts a far broader immunity than the limited one the
Court recognizes, contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. But the text of the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. See Art. I, §3, cl. 7. Historical evidence likewise lends little
support to Trump’s position. The Federalist Papers on which Trump relies concerned the checks available against a sitting President; they did not endorse or even consider whether the Impeachment Judgment Clause immunizes a former President from prosecution. Transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government. Pp. 32-34."
@@constitutionalclarion1901
So unsurprisingly, the judiciary believes that they should always have the final say in matters relating to the separation of powers. Or as Orwell might phrase it: All branches are co-equal, but one branch is more co-equal than the others.
The fundamental reason for the extraordinary majority opinion of these Supreme Court Justices is the fact they were appointed for their conservative views rather than their judicial skills and integrity.
This is in stark contrast to the method of appointment of the Justices of the Supreme Court of the UK and no doubt also in Australia, Canada and New Zealand,
In other words, this judgment reduces Australia's confidence in the accountability of the US president.
Just the opposite.
@@GotooooooThe President is the head of the Executive Branch of government. The President is the top bureaucrat and the Senate is elected. 😂
We are going to find out now Trump is king of 'Merica'.
Caesar and the fall of the republic.
No all power is from the people. So if he/she brakes Laws?Legal System people let them .
Sad but fact.
No disrespect but you live in a bubble if you can't see that the courts are politically expedient and have scant regard for irrefutable facts and truth.
That is where I landed also. With a much greater perspective of their judgement, its effects, and possible tangents, the bench decided that the number one priority was the preservation of presidential immunity in a context of treachery, insubordination and malfeasance.
By surrounding it with opulent promise of even further implications of its reach, it is a frowning shake of the head to those whose aim is the incapacitation of the president through legislative and judicial assault.
Missing the point. The video is about the decision, not the make up of the court. No SCOTUS decision is predicated by "but the court was made up of...."
rex non potest peccare. Maybe a bit too literal here
The USA might (have to) take a lesson from South Korea, where half of all living presidents are now in prison.
Doesn’t Australia give its head state - the King - absolute immunity, even for purely private acts? Surely the extent of the President’s immunity has to be judged in that light?
Is that a rhetorical question or a genuine question wanting clarification?
The founding fathers didn't want a king, they wanted a president who is bound by the rule of law.
I'm guessing the answer is a hard no. However, the King (long may he reign!) and Parliament are probably both acutely aware of the events of 1649, 1688, and all that followed. So, if the King is considered immune it's because he and Parliament both know that if Parliament enacted a new Act of Succession there would be a different monarch, and that is why the monarch tends to act more reasonably than the president of the USA.
The king has no special immunity as far as I'm aware, especially not for 'private' acts. Whether it's prosecuted or not is another matter. English monarchs can and have been brought before a court before, and Australia inherits that system.
Cops et al get immunity in some (if not all) Jurisdictions. In NT A person is not criminally responsible for an offence if:
(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and
(b) the conduct of the person is reasonable in the circumstances for performing that duty.
Just say it plainly: US President = PRC President. They both have the same level of immunity! 😂
🙏🙏🙏 basis. The scotus decision is load o 💩 🎉
I am sure we have not heard the last from the SCOTUS on this topic. Thank you for this valuable explanation.
You're welcome.
12:30 the reason us that the impeachment power is delegated to Congress.
12:48 The advice he received from a lawyer was an option mentioned, albeit unlikely, despite Thomas Jefferson having done that precise thing. That is why Congress later amended the law to prohibit the action.
15:10 What he did isn't what you mention. He did what was required by his office as mentioned by the Court.
The very broad immunity laid down in this case is indeed concerning. Could Richard Nixon have successfully pleaded presidential immunity for Watergate? The Roman Republic had similar problems, with Provincial Governors being immune during their Governorship and immediately prosecuted by their political enemies after their term ended. The Romans solved the problem of vicious and partisan political lawfare by accepting the existence of an Emperor in Augustus Caesar with overall absolute power (although the traditional Republican offices such as Consul and Tribune continued to exist). But that was only after a terrible civil war. One wonders if the Americans will do better.
I want to see the blooper reel for this one 😆..
last day for BIden to legally order a drone strike on his opponent 😥I don't think he's gonna do it.. long live the king 👑
He wasnt following orders....! No one asked him to break those laws, or to subvert the constitution.....he did it deliberately, on his own volution......!
Which law did he break ?
@prevsaudi9858 google it....everyone else knows.....!
@@keithdrower9120 How did Trump subvert the constitution?
This will be good 😅😅
He's their "Commander in Chief?" He wants to protect their Constitution.
🌏🇦🇺
Lots of misunderstandings in this video - with the greatest respect stick to Australian Constitutional commentaries.
You have provided no detail, so you are guilty of an ad hominem fallacy and so your point is moot. You lose.
@lancepymble6280 So much wrong with the piece - too much to address - no one wins or loses - just a suggestion to do your own research and understand their system.
@@gordonevans4879You have certainly added value to my research.
@@somluck2813 The simple fact is that in the case of the 2020 election there were serious, and since proven, anomalies with the ballot tabulations. The President is tasked with making sure laws are upheld and that the election is fair and that was what he was doing. The cases quoted are political constructs and not facts. The need for immunity stems from Britain and the King's immunity that the Founding Fathers wanted to preserve (not unanimously). It is important for the President to be able to make decisions without having to worry about Civil liabilities post-term, particularly (to quote Ms. Twomey) "in this partisan world".
In Georgia (the state, not the country) several of Trump's lawyers have pleaded guilty to trying to subvert the election.
The head of Australia the English king Charles lives outside the justice system and can never be prosecuted. I think the judges and GGs in Australia who work for him are similarly protected. It is kind of weird in so-called 'democracy'.
The monarch doesn't wield executive power, so the scope of any crime is very small in comparison to a president that has executive power. Also the monarch is not above the law, they just have to be tried in Parliament rather than a court. I would assume the Australian Parliament would have the power to put on trial a governor-general.
@radman8321 interesting. I reckon before the Aus government could do anything about GG - the GG would dissolve the Aus government as he has more powers vested in by the English monarch than the Aus government. The GG has executive powers plus the whole Aus armed forces are at his disposal as a commander in chief.
Clearly, you don’t understand that the monarchy has NO executive power and cannot interfere in government. Their duties concerning parliament are prescribed and bounded with no real discretion. They cannot refuse to sign acts of parliament, orders etc. at the end of an election, they ask the leader of the party with most MP’s if they can form a government, if they cannot then they ask the second party’s leader and so on. If there is no government formed, then parliament is dissolved and new elections.
@waikanaebeach it looks as it is you not familiar with your governing body or you pretend the English king and GGs have no say.
@LukeXMV. that sounds like a USA assumption. I've never heard that the monarchy or the GG is a "commander in chief" of our military. Our monarchy is a ceremonial one. Can you expand on your statement?
OOOOH
The problem with the U.S supreme court is that it is politically neutral. At the moment it is loaded up with Republican appointed judges. With most of them being picked by Trump, plus these it is a life time appointment.
True, but the make-up of the Court is not the subject of this video.....
I think Trump appointed three out of the nine current Supreme Court justices. Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh. Nowhere near most. Biden appointed Ketanji Brown Jackson, so as far as I know, there is only one justice of the Supreme Court who does not know what a woman is.
Supreme Crt justices are appointed by the senate.
@@prevsaudi9858 According to uscourts.gov: "Article III judges, including Justices of the Supreme Court, are appointed by the President with the advice and consent of the Senate."
@@kappa7 so if the senate doesn't give consent the person cannot be appointed. In practical terms it's up to the senate whether a nominee is appointed or not. The reason why this distinction is important is nominees are not guaranteed appointment (eg. Bork).
Anne you ask, "Would the founding fathers of the US Constitution really have intended to give absolute immunity to a President who seeks to overturn the operation of that very constitution?
You say "It seems unlikely to me, especially when the President is required by the Constitution to take an oath 'to preserve and protect and defend the constitution of the United States'."
Well, from one Aussie to another; "what the bloody hell do you think?" Of course "NOT!"
So, what is going on here?
I don't know anyone who thinks that, no not true, most Democrats believe that. Like them, you accuse Donald Trump of this crime, based on the charges laid against him, with no assumption or respect to his right to presumption of innocence. The Supreme Court ruled he had complete immunity! Yet you continue to push the line that he is guilty because you don't agree with the decision.
Do you really think Donald Trump would seek to overturn the operation of that constitution he swore to preserve, protect, and defend? Really?
Have you ever considered he might actually have some other intentions and motivations?
With the way the Biden administration has weaponised the Justice Department to try and take him down and prevent him from even standing for election, where is your outrage for this behavior, especially now with the pardons Biden issued to his family, Fauchi, Cheney, and Miley, etc., the exact behavior you are seemingly so outraged at, as a foreigner.
Your analysis goes off the mark when you assume Donald Trump was not attempting “to preserve and protect and defend the constitution of the United States" when he did what he did.
And to have the audacity to speak for all foreigners is a bit rich, I am an Australian as well, and I can see straight through your false biased narrative. You do not speak for me.
Would Donald Trump seek to overturn the operation of that constitution he swore to preserve, protect, and defend?
Yes, absolutely. He's already started with the 14th Amendment, s.1 of the Constitution. He hasn't hidden the fact that he'd like parts of the Constitution to be 'terminated' as he puts it.
"And to have the audacity to speak for all foreigners is a bit rich".
Stop exaggerating. Prof Twomey didn't claim to be speaking on behalf of 'all foreigners'!?
One comment you've made that I do agree with though: "The Biden administration has weaponised the Justice Department to try and take him down and prevent him from even standing for election." True, and Biden is hardly in a position to take the high moral ground.
@@mindi2050The changes Trump suggests are not him seeking to overturn the operation of the constitution he swore to preserve, protect, and defend, but rather, he is trying to improve and clarify the constitution; make it work more like the way it was originally intended.
You like Twomey show the same bias, considering him guilty, which makes no sense given Trump has sworn to preserve, protect, and defend the Constitution.
Why don't you look at it the other way and give him the benefit of the doubt, he never sought to overturn the Constitution, and he was given complete immunity from prosecution by the US Supreme Court for his actions.
@@ThomasLouttit the 14th amendment is already extremely clear on its intentions. trump is trying to overturn it without a supermajority.
he has no care for the institutions of america, just like he is not a conservative, he is entirely self-interested.
I don't know what video you watched, but it wasn't mine. I didn't accuse Trump of any crimes or assert that he was guilty. I read out the words from the judgment which set out the accusations in the indictment. You can read the judgment for yourself.
@@constitutionalclarion1901 Oh, come on now, of course it was your video; aren't these comments attached to your video? Do you really think I'm that stupid?
I never said you accused Trump of any crimes or asserted that he was guilty.
I said, "Your analysis goes off the mark when you assume Donald Trump was not attempting 'to preserve and protect and defend the constitution of the United States' when he did what he did."