> What I feel like the dissent misses completely, which is quite ironic given Justice Sotomayor’s history in private practice

Why do you presume that the dissent did not consider this? What are your qualifications to think you’ve considered this more completely than the SCOTUS (whether or not you agree)?

Well, because the dissent doesn’t mention it.

> Why should we place such trust in prosecutors?

Why should we instead trust a single person with an absolute immunity for vague “official acts”? Said person is way more powerful than any of the prosecutors.

Because that person is elected by a nationwide polity, while prosecutors often aren’t elected, or are elected by politically skewed polities.

Half the country doesn’t share your faith that career prosecutors will do “what’s good for the country” instead of indulging their personal biases.

I would point out that prosecuting Trump under Sarbanes Oxley (a financial fraud law) for supposed insurrection doesn’t exactly engender trust and confidence in career prosecutors.

Any discussion on elections in America that occurs post Fox and post internet has been in an era of extreme partisanship and polarization.

This case came up because a sitting President supported an insurrection.

The law is about the application of principles.

Sure. The President is elected.

Sure. Prosecutors are not. We don’t trust unelected prosecutors.

Sure. The Judges are not elected…

Therefore We don’t trust judges.

——

Frankly with the powers provided, the dems should really just exercise them.

I’m pretty certain that will immediately shift the narrative.

Even the president is elected indirectly in the “land of the free”, it’s a joke of a “democracy”.

Because we live in a democracy and at some point we have to respect the pesky will of the pesky people to elect their pesky leaders. If you assume that the people don't want the rule of law, then you must conclude that the people don't want a government.

Government for thee and not for me seems to be the going (and historically traditional) approach - hence why fascists are attractive to people who want to be “lords”

Being able to do what you want, so long as you “kiss the ring” has unfortunately been a reliable path to temporary and virtueless power

Unless the non-activist citizen votes to give their power to the most virtuous, they generally default to giving away power to someone they believe will ultimately give them priority with the least amount of impact to their core personality trait

You’re analyzing this wrong. Trump has the edge among “non-activist” citizens: https://www.cnn.com/2024/05/29/politics/turnout-2024-electio...

Trump’s authoritarianism appeals to people who feel that he can control the various unelected people they feel have too much power over their lives and society: career bureaucrats, corporate HE, NGOs, universities, etc.

Remember the 2017 “Resistance” against Trump? https://www.washingtonpost.com/politics/resistance-from-with....

This revealed that no matter which party wins the election, the fourth branch of government is staffed and run by Democrats. All the three letter agencies are staffed by 95% Democrats. And people think that Trump can bring them to heel.

> All the three letter agencies are staffed by 95% Democrats.

[Citation Needed]

Assuming that campaign donations are evenly distributed between democrats and republicans: https://www.govexec.com/pay-benefits/2016/10/federal-employe...

I’ll add many federal employees are members of professional organizations. And in the last decade, professional organizations have become overtly political. And all of these are staffed mainly by democrats. Paul Clement, one of the leading Supreme Court advocates of our generation, left Kirkland, known as a conservative firm, over the firms opposition to second amendment cases: https://www.law.com/americanlawyer/2022/06/23/kirkland-ellis.... This is a firm that will not hesitate to represent the worst Russian oligarchs, mass polluters like BP, etc.

Another example is SFFA. A super-majority of the public opposes racial preferences in college admissions and hiring. But not a single prominent law firm authored an amicus brief in support of overturning affirmative action.

Half the country doesn’t trust credentialed professionals anymore, and with good reason

"The former State Department secretary led the businessman by 5 percentage points among federal employees in a July poll by the Government Business Council, the research arm of Government Executive Media Group, with 42 percent of respondents saying they would vote for Clinton, compared to 37 percent who said the same for Trump."

From your article, that sounds more like close to even instead of your exaggerated 95%.

And I suppose non-credentialed people are more trustworthy then?

Not for imposing will on the people, that is for elected officials.

I trust credentialed people for providing facts and research in their domain, not writing policies.

The point is that credentials plus $3.50 will buy you a coffee in our democratic system. The system shouldn’t be designed to give more weight to your views on broad value issues-say through the actions of unelected bureaucracies or professional organizations—just because you have credentials.

You won’t find it because it’s impossible. Majority democrats? Probably they’d be more likely to be attracted to a government service office. 95%?they pulled it out of their posterior.

We’re actually saying the same thing: the plurality of voters just want to be in the “winning gang” so they can feel protected from the scary world

Very “funny” to hear you rail against unelected enemies of the people like bureaucrats, NGOs, academics etc and then wholeheartedly endorse a system in which unlimited executive power can be invested in someone who doesn’t even win a majority of the population’s vote. That’s your brain on fascism, I guess.

I don't agree that this is what living in a democracy means. It has been known since ancient times that democracy is vulnerable to hostile takeover by a populist demagogue. Sometimes, paradoxical as it seems, it is necessary to overrule the people to preserve the democratic system.

Maybe, but who is doing the overruling, how do prevent it from being abused for political purposes, and how do you keep the overruled people from becoming very cynical and dissatisfied with democracy as a result?

Keep asking those questions while trump implements project 2025. I’m sure once you figure it out, the stooges behind it will give up all that juicy executive power.

The executive is already 90% filled with people who not only are one party, but share a particular, distinctive ideology, who have demonstrated their willingness to subvert the institutions they work for in service of that ideology: https://www.washingtonpost.com/politics/resistance-from-with.... (Remember this happened before Trump did anything. It was based purely on federal workers’ moral objections to Trump’s stance on immigration.)

If Project 2025 succeeds behind its wildest dreams, it won’t even come close to even balancing things out.

> If Project 2025 succeeds behind its wildest dreams, it won’t even come close to even balancing things out.

You're pretty optimistic about that. Trump has amply demonstrated that he can be ruthless. And he'll bring on people as cabinet secretaries and undersecretaries who will be of the same mind.

No, its pessimism. Trump doesn’t have what it takes to restore the system to even a semblance of balance. I’m not sure it’s even possible given the decay in government-adjacent institutions like the law schools and bar associations.

> The executive is already 90% filled with people who not only are one party, but share a particular, distinctive ideology

Polls suggest not.[1]

> (Remember this happened before Trump did anything. It was based purely on federal workers’ moral objections to Trump’s stance on immigration.)

The article said not.

[1] https://www.govexec.com/management/2016/07/poll-clinton-open...

That's not democracy, that's majoritarianism

Explain the difference.

What does “democracy” mean to you? A country where people vote, but unelected bureaucrats and lawyers actually run things and will do what they think is best?

Hypothetical: Trump is campaigning on immigration. Say he wins the election and issues an executive order to deport every single illegal immigrant. What should happen, in a democracy?

> What does “democracy” mean to you? A country where people vote, but unelected bureaucrats and lawyers actually run things and will do what they think is best?

"People" generally don't have the expertise to run things in a complex modern world. Bureaucrats and lawyers aren't always better, but pace Damon Runyon (quoting sportswriter Hugh Keough), that's the way to bet. [0]

"Democracy" in a complex modern world means that "people" periodically get an opportunity to toss out the bureaucrats and lawyers — because ballots are better than bullets.

[0] "The race is not always to the swift, nor the battle to the strong; but that is the way to bet." https://quoteinvestigator.com/2015/06/04/race-swift/#google_...

The problem isn’t that bureaucrats and lawyers are exercising their expertise. It’s that they’re elevating their moral and political ideologies above their jobs and institutions. They need to shut up and dribble.

In the united states, the people get to influence things through their representatives in congress, not through unlimited executive power.

I don't believe that congress is doing a good job representing the people but I don't think that the solution to that is to elect a king.

When the president uses the power of the executive branch to enforce an ideology you agree with = democracy.

When you disagree with the ideology = king.

How does that make sense?

I don't think the president should be above the law. I think most presidents have committed crimes and I'd like to see them face more scrutiny not less.

The inverse of immunity is not that any prosecutor can prosecute. That's the happy medium. Even the most reckless prosecutor would still have to convince a jury, and would still have to go up against a defense in court.

The inverse of total immunity (freedom, no jury, no trial) would be total oppression (prison, no jury, no trial).

> More commonly, they order things that result in significant loss of life, which could be prosecuted as negligent or reckless homicide.

> Should former presidents be subject to prosecution for those decisions?

Yes! That war crimes have become normal behavior for US Presidents doesn't mean that we now need more legal frameworks for protecting from prosecution of them.

It seems to me that, if we are to actually become a nation of laws and not of men, we need to acknowledge and account for the crimes in office of virtually every president. And if that's too difficult to do, politically speaking, then we simply aren't what we say we are.

> Remember that criminal laws are often extremely broad, and you can use conspiracy and other legal theories to make someone liable who didn’t perform the actual killing.

This is also a huge problem. It seems that many of us walk around unknowingly subject to capricious prosecution for felonies (according to one author, three felonies a day[0]). How can we have equal protection under the law when any of us can be prosecuted at any time, and the matter of which of us are is one of political discretion?

---- > What I feel like the dissent misses completely, which is quite ironic given Justice Sotomayor’s history in private practice, is that not having any sort of immunity means trusting every prosecutor in the country

While the dissent is unsatisfying in some ways (including following the trend of exhaustive and distracting analysis of the particular facts of the case instead of sharp focus on the ostensibly simpler constitutional issues), you are mistaken, as the phenomenon you are describing is contemplated at length - 9 pages (13-21) are committed to this analysis [1].

0: https://www.goodreads.com/book/show/6611240-three-felonies-a...

1: https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf