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To: Lurker; Bruce Campbells Chin
So a President should be able to clearly and plainly violate 18USC242? Please explain how that is an “official” act of the President.

I’ll try.

18 U.S.C. 242 is deprivation of rights under color of law.

Assume a president were to issue an Executive Order declaring that certain children born in the United States, and subject to the jurisdiction thereof, would no longer be considered to be born U.S. citizens and would not be issued a U.S. birth certificate. Assume all reviewing courts agree unanimously that the Executive Order is unconstitutional, repugnant to the 14th Amendment citizenship clause, as the children were born in the United States and subject to the jurisdiction thereof. The child affected by said Executive Order would have had his or her rights as a natural born citizen of the United States violated. The child would have been wrongfully denied all rights of a citizen. Nevertheless, the President would be immune from criminal prosecution for his publishing such an Executive Order. It would have been an official act.

A Court finding that an official act of the President violated a criminal law would not convert an official act to an unofficial act. The issuance of executive orders is an official act of the President. Issuance of executuve orders is a function of the office.

A presidential act is determined to be official or unofficial by the nature of the act, not whether a court later finds it to be unlawful.

In similar fashion, as official acts the Congress may pass legislation, and the President may sign it into law, only to have the U.S. Supreme Court find it to be unconstitutional. The Congress and the President would not be subject to prosecution for acting unconstitutionally.

At 603 U.S. 615-16:

The “‘justifying purposes’” of the immunity we recognized in Fitzgerald, and the one we recognize today, are not that the President must be immune because he is the President; rather, they are to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions. 520 U. S., at 694, and n. 19 (quoting Fitzgerald, 457 U. S., at 755). “[I]t [is] the nature of the function performed, not the identity of the actor who perform[s] it, that inform[s] our immunity analysis.” Forrester v. White, 484 U. S. 219, 229 (1988).

If the act taken is within the nature of a function performed by the official taking it, it is considered an official act.

At 603 U.S. 659, Justice Sotomayor described what the majority opinion stated.

Whether described as presumptive or absolute, under the majority's rule, a President's use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any crimi­nal prosecution against him. See ante, at 630–632. That holding, which will prevent the Government from using a President's offcial acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.

https://attorneys.media/presidential-immunity-limits/

Attorneys.media

The Limits of Presidential Immunity and Due Process Considerations

[excerpt]

The Court emphasized that this classification must focus on the nature of the act itself rather than allegations about presidential motive or intent. As Chief Justice Roberts wrote, courts cannot “deem a president’s action unlawful just because it allegedly violated a generally applicable law.” This approach prevents prosecutors from circumventing immunity simply by alleging criminal intent behind otherwise official actions. Instead, courts must objectively determine whether the Constitution or federal law authorized the president to take the action in question, regardless of the purposes allegedly motivating that action.

This distinction has proven particularly challenging in cases involving actions that blend official authority with potentially personal or political motives. For example, the Court specifically addressed allegations concerning former President Trump’s conversations with Justice Department officials, determining these interactions fell within his official duties regardless of their alleged purpose. This aspect of the ruling highlights the difficulty in separating the official nature of presidential communications from questions about their propriety or legality—a distinction that lower courts continue to wrestle with as they apply the Supreme Court’s framework to specific factual scenarios.


56 posted on 07/27/2025 11:14:04 PM PDT by woodpusher
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To: woodpusher

Thank you. That’s very helpful.

L


57 posted on 07/28/2025 4:59:28 AM PDT by Lurker ( Peaceful coexistence with the Left is not possible. Stop pretending that it is.)
[ Post Reply | Private Reply | To 56 | View Replies ]

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