Monday, July 1, 2024

Doing what's best for the country; bad faith

Presidential immunity case; public purpose versus private purpose; bad faith
Awaiting the decision of the United States Supreme Court this morning in the Presidential immunity case, I am thinking that each element in the case needs to be evaluated with reference to the extent to which an action (official or otherwise) is intended to serve and in fact serves a private purpose or interest versus the extent to which the action is intended to serve and in fact serves a private purpose or interest. This evaluation is very dependent on specific facts of the situation.
As an example, consider the pardon power. 
The pardon power is subject to almost no limitation. The Supreme Court and the president’s pardon power - SCOTUSblog.
Suppose Putin paid Trump $50,000,000 to pardon a particular person and Trump pardoned the person. Suppose Trump could not make any showing that the pardon served any public purpose and a jury could reasonably conclude that the only reason Trump granted the pardon was for Trump to get the $50,000,000 for himself personally, and such amounted to criminal bribery. We will see whether the Supreme Court decision this morning provides a clear answer to whether a President has absolute immunity in the exercise of the pardon power, or whether, in the foregoing hypothetical, could be prosecuted criminally after he left office.
Next, consider Trump's telephone call to the Georgia Secretary of State to "find" votes for him. Trump could say that action was carrying out Presidential duties to assure that the 2020 election was not fraudulent and that the call cannot be considered by a jury as being part of the conspiracy with which Trump is criminally charged. This raises the question of Trump's intent, and a jury could conclude the telephone call was predominantly or exlusively to serve Trump's campaigning interest to win the election, Here, the Supreme Court might impose a test of "bad faith" and whether Trump saying he was carrying out Presidential duties to assure that the 2020 election was not fraudulent was in bad faith. We will see what light the Supreme Court's opinion today sheds on this question.
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