Mr. Childs finds that well illustrated by the Tennessee Valley Authority which the Eisenhower Administration was about to take over in filling a second vacancy on the three-person board of TVA. (Under the Supreme Court decision of 2024, this power would be a shared responsibility with Congress, incidentally, as the appointment requires Senate confirmation, and so, presumably, a prosecution for a President taking bribes, for instance, in performing an appointment would be subject still to the presumptive immunity, subject to rebuttal by the prosecutor, though in practice, we would assume that the rebuttal in that instance would be rather easy, especially as it would be subject to the argument that a bribe, falling squarely within the impeachment clause of Article II, would also have to be considered an unofficial act for its very criminality and expressed ground for impeachment. [But see the discussion in the case at pages 26-27 of the Slip Opinion, viz., "Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." Query, however, whether such violation would not be corruptive of the very oath of office to which every President must swear, faithfully to execute the office of the Presidency and to preserve, protect and defend the Constitution of the United States, as well as the duty to "take care that the laws be faithfully executed", pursuant to Section 3 of Article II, as the Constitution assumes as its basis the common law as imported from England into the colonies, which includes, necessarily, the "generally applicable law", for instance, that common law regarding defamation and sedition, that is, advocating the overthrow of the government within certain contexts, repeatedly having been held by the Supreme Court to be exceptions to the unfettered freedoms of the press, speech, assembly, petition and free exercise of religion ostensibly recognized by the First Amendment—which Thomas Jefferson conceived as expressing one freedom, not separate freedoms. If the President, depending on context, has absolute or presumptive immunity from violation of the "generally applicable law" to which he must see is faithfully executed as a duty of his office, how, pray tell, has he not lost, by the sheer logic of the matter, any form of immunity from criminal prosecution by the very fact that he has violated the law which he must take care faithfully to execute? implying thereby a special fiduciary duty with respect to the law.] Conceptually, the uncertainty, as admitted by the Court in Trump, in each individual instance, as it might arise in the hybrid zone of shared responsibilities with Congress or in distinguishing official from unofficial acts, also exposes the inherent weakness of the majority's analysis, sounding fine and categorical in the abstract until being reduced to cases, that analytical framework having been wholly adopted from Nixon v. Fitzgerald, a civil case from 1982, and providing virtually no predictability for future conduct of the executive branch, the purported rationale for the decision, except as stated by President Biden in the wake of the decision, that henceforth the character of the occupant of the office in refraining from criminal misconduct in the performance of Presidential duties and exercise of powers would be more important than ever before, as, ostensibly at least, the decision opens up the potential for absolute immunity for acts undertaken within or subject to characterization as being within the exclusive official powers of the chief executive under Article II, bringing forth the potential reality of the new, classic example, as first posed in the D.C. Circuit Court of Appeals in Trump, of ordering, as exclusive commander in chief of the armed forces, Seal Team 6 to assassinate a domestic political opponent and being absolutely immune therefor as long as the act was performed while President, [see p. 29 of dissent of Justice Sonia Sotomayor in Trump, joined by Justices Elena Kagan and Ketanji Brown Jackson], even though that action would obviously be not only quite violative of the general law but also of the traditions and conscience of the American people as a whole, utterly despotic in its implications, leaving aside all common sense parameters on the powers of the Presidency, with the supposed remedy of impeachment likely to be avoided by the cover-up of the operation at least until after that President left office—nonetheless still having made Mr. Nixon, who said to David Frost in 1977, perceived with considerable incredulity at the time though now appearing to have been quite prescient, that "when the President does it, it's not illegal" exactly by definition, yet liable for prosecution, despite his full pardon by President Ford for all acts committed during his Presidency, for any acts committed before it, except that under the Court's present ruling, there is exclusion of all evidence embraced within the rubric of "official conduct" while President which is proffered to prove motive for any alleged criminal misconduct, such as the ground offered by Mr. Nixon on his official tapes, the existence of which were revealed in July, 1973 and the "smoking gun" ultimately revealed a year later, that being to have Bob Haldeman ask General Vernon Walters, assistant CIA director, and CIA director Richard Helms to get FBI director L. Patrick Gray to stand down an official inquiry of the Watergate burglary of DNC headquarters on the ground of "national security" for that "comedy of errors" getting into the "Bay of Pigs thing", that operation having been initially conceived by Vice-President Nixon's executive committee in 1959-60 though not executed until April, 1961 during the first three months of the Kennedy Administration, with execution of it having strangely been in the hands of at least two individuals who were among the Watergate burglars, along with their wily ringleader in both operations, E. Howard Hunt, whether the "Bay of Pigs thing", for instance, would be official or unofficial conduct of the then-President or whether performed during, before or after his Presidency, still being unusable under Trump to show motive for the Watergate cover-up and hence what would have been a criminal charge of obstruction of justice but for the Ford pardon—even though not transacted at Ford's Theater on 10th Street—noting especially that three of the present majority in Trump, each of whom was appointed by Trump, with the concurrence of a rigged majority of the McConnell-led Senate as to the first and last of them, in deprivation of what should have been an appointment in 2016 by President Obama to replace deceased Justice Antonin Scalia and an appointment, adhering to the same McConnell-invented rule of no election-year nomination hearings, by President Biden in 2021 to replace deceased Justice Ruth Bader Ginsburg, were not yet born in 1963 at the assassination of our President, and were likely much too young to recall much or anything, live as it happened at least, regarding the televised Watergate hearings of the Senate Select Committee during the summer of 1973 or the televised Nixon impeachment hearings of the House Judiciary Committee the following summer, culminating in his resignation on August 9 at high noon, those three, we find, being far behind the learning curve as they, even by their strict standards of conception, were not yet even conceived in 1963, literally or figuratively.)

Advocates of the TVA concept for the development of the whole region, for flood control and development of cheap electrical power versus that produced by private utilities, by utilizing the potential of the great watershed, had been quite apprehensive. To try to do what the United States Chamber of Commerce had recently recommended, to sell TVA to the private utilities, would be politically impossible. But cutting it back in such a way that it would eventually have no other course other than to merge with the private utilities was not so impossible, at least according to the allies of TVA both in and outside the region. They believed it could be accomplished by appointing men to the TVA board who would take the narrowest view of its role.

The first Eisenhower appointee to the TVA board was General Herbert Vogel of the Army Corps of Engineers, appointed as chairman three years earlier. Since then, he had been repeatedly accused of betraying TVA. It now appeared that he would, in effect, name the second man to the board, recommending the appointment of Adolph Ackerman, a consulting engineer formerly with TVA. He was the only person under consideration for the appointment and it was likely that he would get the nod. While the Senate would have to confirm him and such a confirmation would likely draw considerable opposition from Senators within the TVA region, the nomination would be put forward toward the end of the session, to which a lot of legislation had been delayed and in which tempers would be frayed, thus making prolonged opposition to the nomination unlikely.

From the standpoint of those who wanted to see control of TVA established with as little fuss as possible, the appointment might even be delayed until after the recess to eliminate all opposition. That was the fear of those who wanted to prevent the appointment of a man whom they believed would be subordinate to General Vogel.

The opponents were aware, however, that Mr. Ackerman was well qualified for the position, having been an engineer who had served with TVA, although as an associate of Arthur E. Morgan, whose dismissal as chairman, after a bitter controversy, had caused a profound upheaval in TVA.

While the TVA board had to report to the President, it was a semi-autonomous body created by Congress during 1933 at the start of the Roosevelt Administration, and, as originally conceived, was to be appointed on a nonpolitical basis and comprised of persons who believed, as the law creating it specified, in the "feasibility" of the TVA idea.

To name a second member with the outlook of chairman Vogel, according to the allies of TVA, would be to place the agency under the thumb of the President and concentrate therefore more power in Washington, contrary to the Administration's general stance.

Mr. Childs suggests that if the concern over the TVA board vacancy illustrated the power of the executive, it also displayed the dilemma of the Administration and the "modern Republicans" when confronted with responsibility for an agency out of the New Deal era with far-reaching social implications. Republican Senators, who were friendly toward TVA, complained that it had been impossible to find able persons willing to take the job on the board, that truly able persons would not be interested in such a position in a time of inflationary prosperity when they could obtain in the private sector a substantially higher salary than the board provided, $20,000 per year.

Mr. Childs indicates that the Republican Senators' complaint in that regard failed to take into account those who might be willing to take such a position from an idealistic stance, that they could contribute more to the welfare of the region and the nation than they could in the private sector. Such persons, however, might fall short of the Republican specifications, as well as those of the Administration, given the current increasing attack from the right on the Administration for being too sympathetic with New Deal programs.

He concludes that it appeared that General Vogel's virtue was that he knew what he wanted and was ready with a plausible appointee when the White House had to make an unpleasant decision. "With Vogel having a majority on the board, the friends of TVA are saying disconsolately, the TVA idea as it grew out of the dream of the late Senator George Norris will come to an end."

Thus, why import the Fitzgerald framework to the completely distinguishable criminal context, resulting, as it does, in the anomalies and outrageous hypotheticals which have been posed, ultimately rendering the Presidency potentially occupied by an out-of-control, psychopathic despot who might, as Hitler, be allowed to exist nevertheless in that form by sympathetic majorities in both houses of Congress, without the potential for criminal consequences upon leaving office to hold that person in check, short, at least, of resignation in disgrace upon a deal for pardon of Federal crimes from the successor?

A letter from J. R. Cherry, Jr., finds the newspaper, in an editorial, to have "attacked the right and the wisdom of the sovereign State of South Carolina to restrict the showing of the integrationist propaganda movie, 'Island in the Sun'…" It finds the newspaper to be "trapped in a jungle of intellectual relativity—constantly juggling double standards of values—and imagining all the while that you sit supremely atop an intellectual Olympus. Indeed, freedom, culture, constitutional government, and sanity will perish in this republic if your crowd pilots the ship of state much longer!" He finds the film plot to be "rotten" and the position of the newspaper in favoring judicial interpretation of "morals" to be "totalitarian" in nature rather than "interpretation formulated by the rank-and-file through their elected government." "How much longer can American constitutional government stand this sort of dictatorial travesty?" He finds no apologies to be in order for South Carolina for its thinking on the film, as the overwhelming majority of the "splendid people" of that state were "unalterably opposed to the revolting idea of mixed racial intimacy. Therefore, it's but a manifestation of natural wisdom that action be taken to protect and secure the cultural values which its people hold dear. One needs only to study the disgraceful extent of Communist penetration and the influence of communism in America in the past 25 years to see the grave danger inherent in the kind of irresponsible 'freedom' involved in this discussion and believed in by the usual run of half-educated eggheads." He thus finds little meaning inherent in the question "naïvely posed" by the editorial regarding the film: "If an idea is repugnant, can't free men be depended upon to reject it?"