Author: Michael Stern

Posted on

Who Will Represent Congress in Trump v. Slaughter?

As you may have heard, the Supreme Court has granted certiorari in Trump v. Slaughter, a case in which a Federal Trade Commissioner whom President Trump purported to fire has sought reinstatement to her position. The Court directed the parties to brief two questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

In the meantime, cases involving Trump’s purported removal of members of other “independent agencies” and various multimember boards are still kicking around in the lower courts. In addition, there is at least one case involving the purported removal of an individual official, the registrar of copyrights at the Library of Congress.

Allowing the president to exercise at-will removal of the members of agencies such as the FTC, the Merit Systems Protection Board, the Consumer Product Safety Commission, the National Labor Relations Board, and (perhaps) the Federal Reserve will dramatically alter the nature of the various statutory schemes in which these bodies were established. Presidential control of these agencies could transform them into arms of the executive branch and allow them to be used for purposes entirely foreign to that intended by Congress.

When the Supreme Court first considered the constitutionality of a restriction on the president’s power of removal, in Myers v. United States, 272 U.S. 52 (1926), Chief Justice Taft reached out to the Senate to see if it wished to designate an amicus to represent its interests and, when that appeared impracticable, appointed a sitting senator  “to present the views of the legislative branch of the government.”  In more recent years, the Court has declined the suggestion to appoint an amicus specifically to represent the interests of Congress, but in cases where the parties agreed that the removal limitation was unconstitutional it has appointed an amicus to defend the constitutionality of particular statute in question. In one case, Seila Law LLC v. CFPB, 591 U.S. __ (2020), the Bipartisan Legal Advisory Group of the House of Representatives also filed an amicus brief supporting the validity of the removal limitation at issue, noting that “the House has a strong interest in defending the validity of the CFPB Director’s removal protection—and the many similar provisions found throughout the U.S. Code.”

In the Slaughter case there is genuine adversity between the parties regarding the constitutionality of the removal limitation so the Court presumably will not appoint an amicus at all. Moreover, it is unlikely (though not impossible) that either the House or Senate will file amicus briefs in the case due to the difficulty in crafting an institutional position that can survive the political hurdles necessary to authorize the filing of a brief. In the Senate, the brief would need to be approved by the Senate Joint Leadership Group (or by a vote of the Senate itself) and therefore would need bipartisan agreement. In the House, BLAG could approve the brief on a party line vote, but it is unlikely that the Republican majority will want to file anything that might offend the Trump administration. Individual members, of course, can file amicus briefs, but these tend to reflect narrow perspectives and are often filed mostly to make a political statement.

This is unfortunate because the Slaughter case will have ramifications for Congress that go well beyond the particular statute in question or even removal protections in general. Moreover, the parties do not have an incentive to advance some of the congressional interests at stake and, indeed, may not even be aware of them. And Congress itself will not have an opportunity to think about the potential ramifications of the case until it is too late.

One of the more obvious congressional interests at stake is the reliance that Congress has placed on Humphrey’s Executor and its progeny in the 90 years since that case was decided. As the House pointed out in Seila Law:

During that time, Congress has created more than two dozen agencies with explicit for-cause removal protections. The statutes creating those agencies were enacted by twenty different Congresses and signed by twelve Presidents, Republicans and Democrats alike. For-cause removal protections thus reflect an established practice accepted by all three branches and deeply integrated into our governmental structure.

Brief for Amicus Curiae the United States House of Representatives in Support of the Judgment Below at 30, Seila Law (No. 19-7) (citation omitted).

It is not just the for-cause removal protections themselves that will be affected by the Court’s decision, however. Congress also relied upon the validity of these protections in how it structured these agencies and in the powers and duties it assigned to them. Striking down the removal protections while leaving the rest of the statutes intact will in effect enact an entirely new statutory scheme that was never approved by Congress. As was perceptively pointed out in an amicus brief filed by a group of Republican senators, “the CFPB was designed to remain independent from the political branches” and “[s]evering the CFPB Director’s for-cause removal protection from the rest of the Act would therefore create an entirely new system—one that was never legitimized though bicameralism and presentment.” Amicus Brief of U.S. Senators Mike Lee, James Lankford, and M. Michael Rounds Supporting Petitioner at 11, Seila Law (No. 19-7) (emphasis in original). Thus, “a proper respect for congressional authority requires that Congress be allowed to determine, at least in the first instance, how to respond to a holding that any provision of a federal statute is unconstitutional.” Id. at 14.

The Court paid no heed to this admonition in Seila Law, instead concluding with unwarranted confidence that Congress would have preferred a “dependent CFPB” to “no agency at all.” It is not clear how the Court will be able to even make such a cursory judgment regarding dozens of statutes that were enacted (and amended) at different times, all based on an assumption of agency independence that the Court could now upend. Furthermore, these statutes were enacted at times when there were expectations that presidents would not use their powers in ways that even the most enthusiastic supporters of the unitary executive would recognize as improper. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1837 (2023) (“the Constitution implicitly constrains the President’s discretion to exercise constitutional powers, including removal” through, among other things, his oath to faithfully execute the office). It should not be controversial to note that these expectations no longer hold.

Exactly how Congress should respond to this challenge and how it might ask the Court to frame its opinion to preserve congressional authority are matters on which reasonable people may disagree. But it is not a partisan issue or one that necessarily breaks along ideological lines. Crafting an institutional position that could command bipartisan support in Congress may an impossible task, but we will not know unless someone tries.

Posted on

A little help from Congress is better than nothing

Tomorrow the Senate Health, Education, Labor & Pensions Committee, affectionately known as HELP, will hold a hearing entitled “Restoring Trust Through Radical Transparency: Reviewing Recent Events at the Centers for Disease Control and Prevention and Implications for Children’s Health.” Usually committees use the titles of their hearings to clearly communicate the point they are making and/or to gain the interest of the press and public. The somewhat obscure wording of the title for tomorrow’s hearing suggests the committee may be looking for a little less attention, or at least less attention from a certain individual residing at 1600 Pennsylvania Avenue.

The committee’s website shows two witnesses for the hearing. The first is Susan Monarez, the former director of the Centers for Disease Control, who was fired by Secretary of Health & Human Services Robert F. Kennedy, Jr. mere weeks after she was confirmed by the Senate to serve in that position. That timing alone makes the firing an extraordinary action, as well as an affront to the Senate’s advice and consent role.

The second witness is Debra Houry, who also served in a senior role at CDC and who resigned in protest over Monarez’s firing and RFK Jr.’s anti-vaccine agenda, which she believed had “politicized” the CDC. Monarez, according to reports from Politico and others, will testify that she was fired because “I had refused to commit to approving vaccine recommendations without evidence, fire career officials without cause, or resign– and I had shared my concerns with this Committee.”

The fact that the committee is actually hearing from critics of administration policy makes this an extremely rare instance of a congressional committee conducting oversight of the Trump administration. The chair of the HELP committee, Bill Cassidy, is a physician who strongly disagrees with RFK Jr.’s approach to vaccines. One can infer from the hearing title that Cassidy believes the “implications for children’s health” from “recent events” at CDC are not good. But what is this “radical transparency” all about?

The Washington Post explains:

People who have spoken with Cassidy and his staff say that the senator is not seeking a direct confrontation with the Trump administration, wary of being politically punished, but instead is focused on “fact-finding” about Monarez’s abrupt ouster, coronavirus vaccines and other potentially explosive issues. Cassidy also is taking pains to placate Trump and his deputies: The title of Wednesday’s hearing with Monarez — “radical transparency” — is taken from Trump and Kennedy’s own vows to institute radical transparency in government, and he has repeatedly called for Trump to receive a Nobel Peace Prize for his Operation Warp Speed work.

I guess that is why Cassidy decided against going with a more straightforward title, like “Batshit Crazy HHS Secretary is Going to Kill Us All.”

Anyway, despite the political risks, Cassidy has apparently decided to bring some transparency to the administration of HHS, which is pretty radical in the current Congress. Good for him.

 

 

Posted on

A Government of Men

“It is the proud boast of our democracy that we have a ‘government of laws and not of men,’” So opens Justice Scalia’s famous dissent in Morrison v. Olson, 487 U.S. 654, 697 (1987), which I happened to be reading recently (as part of a more extensive project on the unitary executive and presidential removal). This post is to address its relevance in the context of a specific recent event, namely the revelation that the Office of Special Counsel (OSC) has opened an investigation into Jack Smith, a former special counsel (though, confusingly, not the kind of special counsel who serves in OSC).

Scalia’s Dissent

Scalia’s dissent may be thought of as having three parts. The first consists of an extensive and vivid dissection of the independent counsel statute, the constitutionality of which was the issue before the Court in Morrison. Briefly stated, Scalia thought the independent counsel statute effectively allowed Congress to compel criminal investigations of high level executive officials and encouraged the overzealous pursuit of criminal charges against such officials by politically unaccountable prosecutors who were likely to be biased against them. This resulted in a fundamental unfairness which institutionalized “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.” Morrison, 487 U.S. at 728 (Scalia, J., dissenting) (quoting a speech by Robert Jackson while serving as attorney general). [note: all cites to Morrison hereafter are to Scalia’s dissent].

The second part of Scalia’s dissent consists of his argument that the independent counsel act violated the principle of the unitary executive, which he derived from the first sentence of Article II, that “[t]he executive Power shall be vested in a President of the United States.” This principle requires that all executive power (or at least, as Scalia repeatedly put it, all “purely executive power”) be in the “full control” of the president. There are a number of problematic aspects of this theory, which are the subject of my larger project, but for today we will assume that the theory is correct and that the independent counsel statute, by vesting (purely) executive power in a prosecutor who was largely beyond the direct or indirect control of the president, violated the unitary executive principle.

This brings us to the third part of Scalia’s dissent, which is his attempt to draw a connection between the ills of the independent counsel statute and the constitutional violation. Scalia postulates that presidential control will make less likely that there will be prosecutorial abuse against individuals covered by the law. This is no doubt true since the whole point of the law was, as Scalia notes, to ensure independent investigation “when alleged crimes by [the president] or his close associates are at issue. Morrison, 487 U.S. at 710. Congress feared that prosecutors subject to presidential control would be less likely to vigorously investigate such crimes, and it is a simple logical corollary that they would therefore be less likely to abusively or overzealously investigate them. (By the same token, one could say that federal judges would be less likely to unfairly rule against the president or his friends if he had the power to fire them. Not that I am trying to give anyone ideas.)

But what is Scalia’s basis for suggesting that presidential control of prosecutors will, in general, lead to less prosecutorial abuse? Scalia’s argument requires some reason to believe that presidents are likely, on balance, to restrain rather than encourage such abuse. Otherwise the fact (if it be a fact) that the unitary executive theory requires striking down the independent counsel law is nothing more than a happy coincidence.

Scalia does not explicitly consider the possibility that presidential control could result in overenforcement of criminal law, but he does acknowledge the possibility that presidents will underenforce the law when they or their friends are involved. Morrison, 487 U.S. at 710. He offers this by way of reassurance:

The checks against any branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.

Morrison, 487 U.S. at 711 (citations omitted).

Whatever the effectiveness of the first set of checks, they seem equally potent with regard to an independent counsel as to a president. An independent counsel could be impeached and removed from office. A case brought by an independent counsel could be dismissed for malicious prosecution like any other case. Moreover, unlike a president, an independent counsel could be removed (by the attorney general) for cause. Thus, these structural checks against abuse by an independent counsel were at least as significant as those against presidential abuse.

As for the second set of checks, it is true that independent counsels did not have to worry about how public opinion would affect their next election. But the same is true of presidents in their second term. Moreover, while presidents are subject to political pressure that can cause them to change course (as the appointment of special prosecutors for Teapot Dome and Watergate illustrate), independent counsels were hardly immune from such pressures. After all, they required funding by Congress and could not survive without political support. An independent counsel facing a backlash from public opinion would likely lose political support far more quickly than a president. There thus appears to be little reason to believe that constitutional structure would make presidential abuse of the prosecutorial function less likely than abuse by an independent counsel. Continue reading “A Government of Men”

Posted on

The Justice Department’s Problem in Responding to the House Oversight Subpoena for the Epstein Files

Today the House Oversight Committee issued this subpoena to Attorney General Pam Bondi seeking all documents in the possession of the Justice Department relating to Jeffrey Epstein, including documents relating to the investigations of Epstein and his associate, Ghislaine Maxwell, for human trafficking, exploitation of minors, sexual abuse, or related activity.

Ordinarily DOJ would resist producing most, if not all, of the responsive material on various purported privilege grounds, including the “law enforcement” privilege, the attorney-client privilege, and the presidential communications privilege (the subpoena specifically requests communications between the Executive Office of the President and the Justice Department regarding the Epstein matter). The political context of this subpoena, however, makes this anything but an ordinary matter, and it is possible that Bondi will decide to produce responsive documents without asserting some (or any) of the arguably available privileges. This, of course, is her right; nothing obligates the executive branch to assert privilege in response to a valid congressional subpoena.

There is, however, one exception. Under Federal Rule of Criminal Procedure 6(e), it is a criminal offense to disclose “a matter occurring before the grand jury” unless a recognized exception applies. Thus, to the extent that the House subpoena covers grand jury transcripts, for example, DOJ cannot lawfully provide them unless a court agrees they are covered by an exception to grand jury secrecy.

Even before the House subpoena issued, in fact, DOJ had applied to federal courts in New York and Florida requesting that the Epstein grand jury transcripts be unsealed. Unfortunately, there is no specific statutory exception that would allow unsealing in this case. The only way that a court could allow public disclosure of the transcripts would be to rely on its inherent authority and, several federal circuits (including the Eleventh Circuit) have held that there is no inherent authority to disclose grand jury material. Because it was bound to follow this Eleventh Circuit caselaw, the federal court in Florida denied DOJ’s application, noting that “the Court’s hands are tied—a point the Government concedes.”

What the Florida court was too polite to mention is that DOJ itself advocated for the Eleventh Circuit precedent in question (which was decided in 2020 during the first Trump administration) and similar restrictive decisions in other circuits. DOJ also fought vigorously the attempt by the House Judiciary Committee in 2019 to obtain grand jury materials related to the Mueller investigation. DOJ lost that case at the district court and D.C. Circuit on the ground that the committee was conducting an impeachment investigation which therefore fell within 6(e)’s exception for disclosures preliminary to or in connection with a “judicial proceeding,”  but DOJ was still in the process of seeking Supreme Court review when the first Trump administration ended, thereby mooting the case. In any event, DOJ’s official position (presumably) remains that courts have no authority to release grand jury materials in response to congressional subpoenas, even in the impeachment context, and certainly not in the case of oversight subpoenas such as that issued today. (In fairness, DOJ’s hostility toward exceptions to grand jury secrecy predates the Trump administration.)

In short, there is no way for DOJ to lawfully provide the House Oversight Committee with grand jury material responsive to its subpoena without permission from a federal court, and, unless it is recanting its prior views, its position is that no federal court has the authority to grant such permission. Even if it were inclined to change this position, the weight of federal court opinion (adopted at DOJ’s urging) says that there is no such authority in the case of oversight (as opposed to impeachment) subpoenas.

This might not be such a big deal if we were only talking about grand jury transcripts. However, DOJ has also taken a much broader view of what constitutes a “matter occurring before the grand jury.” It interprets this phrase to include not only grand jury transcripts, subpoenas and other documents that directly show what happened in the grand jury, but materials which merely relate to the grand jury investigation, such as documents collected in the course of the investigation, witness statements taken outside the grand jury room, and many other documents. Many of the most important documents responsive to the House Oversight subpoena therefore may be covered by DOJ’s expansive view of grand jury material. If it produces these documents without court permission, it will be committing a crime, at least based on its own view of the law. And its own view of the law says that the courts are powerless to grant such permission even if they are asked to do so.

That leaves Attorney General Bondi in something of a difficult position.

Posted on

Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)

Note: since my last post the world has lost another lion of congressional oversight, Mort Rosenberg, who for 35 years was every House and Senate committee’s “go to” expert at the Congressional Research Service for advice and assistance on congressional investigations, executive privilege, vacancies, and many other issues. Mort is mentioned in this post as he has been in many others over the years. He will be greatly missed.

Today concludes the series of posts I began on April 8 on “Immunity, Impeachment and Juristocracy.” The prior posts are as follows:

Part I: Unoriginalist Sin (Apr. 8, 2025)

Part II: Nixon v. Fitzgerald (Apr. 9, 2025)

Part III: “Core” Official Conduct (Apr. 13, 2025)

Part IV: Noncore Official Conduct and Evidentiary Use (Apr. 17, 2025)

Part V: Above the Law (Apr. 27, 2025)

Part VI: Chilling Doom (Apr. 30, 2025)

The upshot of these posts is that Congress cannot rely on other branches or institutions to police, punish or deter executive branch crime or wrongdoing. This is most obviously true of the president, but it also applies to subordinate executive branch officers. Therefore, Congress must assume this responsibility itself.

Historically, congressional investigation of executive branch wrongdoing has generally been an outgrowth of ordinary congressional oversight. Only rarely do such investigations turn into (or begin as) formal impeachment inquiries and even more rarely does the House actually impeach an officer of the executive branch. And, of course, the Senate has never convicted a president or other executive branch officer. The primary consequences for executive branch wrongdoing have been reputational (amplified through the media), forced resignation, firing, and criminal sanctions. But for the reasons discussed in the prior posts (and illustrated by daily headlines), these consequences are much less likely than they once were and their deterrent effect has dramatically diminished if not evaporated.

Professor Jonathan Shaub has posted this article which grapples with the difficulty of holding the executive accountable in the current legal and political environment. See Jonathan David Shaub, White House Inspection, 103 Wash. U. L. Rev. __ (forthcoming 2026). He argues that Congress is ill-equipped to fill the gap:

Congress as investigator—whether pursuant to legislative oversight authority or impeachment authority—has a number of shortcomings, many, but not all, of which are well-known and noncontroversial. First, and perhaps most obviously, Congress is partisan, and, in our current polarized environment, this partisan character combined with the dominant two-party system hampers both the reality and perception of congressional investigation. Second, Congress lacks the ability to enforce its investigative demands on any realistic timeframe. Third, perhaps less obviously, Congress is a poor choice because it lacks expertise and key institutional incentives—in part because of its politicization—related to the confidentiality of investigative files.

White House Inspection, supra, at *42.

None of these concerns are unfounded, but, as discussed below, I think there are reasonably persuasive responses to each. Whether Congress will prove capable of meeting the challenge of the present moment only time will tell. But in a very real sense there is no alternative. Congress is the only institution with the inarguable constitutional authority and duty to hold the executive accountable. Even Shaub’s proposal (which we will discuss shortly) depends in large part on Congress fulfilling the role the framers entrusted to it. Continue reading “Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)”

Posted on

Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)

Although Trump is more circumspect than Fitzgerald in acknowledging the policymaking nature of its decision, it is nonetheless based on a series of policy intuitions or judgments, some of which are borrowed from Fitzgerald and some of which are not. One in the former category is the need to ensure that the president is not “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 745). The “hesitation to execute the duties of his office fearlessly and fairly” which “might result” from the specter of potential prosecution “raises ‘unique risks to the effective functioning of government.’” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 751). Moreover, the Court opined, “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” 603 U.S. at __, slip op. at 13.

The Court did concede that a president “might be exposed to fewer criminal proceedings than the range of civil damage suits that might be brought by various plaintiffs.” Id. But the Court was unimpressed by the government’s argument that the criminal justice system provides adequate safeguards for the concerns it raised. For example, it dismissed the argument that a court could guard against inappropriate use of evidence of the president’s official acts through evidentiary rulings and jury instructions, saying that such “prosaic tools . . . are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” 603 U.S. at __, slip op. at 31.

And what are these “peculiar constitutional concerns”? For one thing, the Court worries that “the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance in office.” Id. This concern, though, seems mismatched to the distinction the Court draws among unofficial/core official/noncore official acts. If the Court fears that the jury will be prejudiced against a former president, it is hard to see why it would matter whether the president is charged with committing an official crime or a purely personal one.

The Court also appears to have a general skepticism of the criminal justice system. The “prosaic tools” of that system “may suffice to protect the constitutional rights of individual criminal defendants,” it says, but are insufficient to protect “the institution of the Presidency.” Id. Similarly, it later rejects “the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place,” noting that these are just the assurances “available to every criminal defendant.” Id. at 37. The clear import of these statements is that while the safeguards of the criminal justice system may (or may not) be good enough for ordinary private citizens, they fall short when applied to something the Court really cares about. Continue reading “Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)”

Posted on

Immunity, Impeachment and Juristocracy (Part V: Above the Law)

Today we will consider the implications of Trump v. United States for the overall legal accountability of the executive. At the outset we should acknowledge that the future effect of this decision, as it will be interpreted and applied by the courts and the executive branch, cannot be predicted with certainty. Indeed, the decision itself comes with the caveat that it is too early “to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution.” Trump, 603 U.S. at __, slip op. at 15. Still, we can identify sufficiently dire consequences that are certain, likely, or plausible to require taking the matter with the utmost seriousness.

We might begin with the question whether Trump places the president “above the law.” The Court indignantly rejects this accusation:

Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.

Trump, 603 U.S. at __, slip op. at 40. Justice Thomas puts the point more succinctly, explaining “there has been much discussion about ensuring that a President ‘is not above the law’ . . . [but] the President’s immunity for his official acts is the law.” 603 U.S. at __, slip op. at 8 (Thomas, J., concurring) (emphasis in original).

These responses miss the point. In monarchies it may be the law that the king “can do no wrong.” But that is precisely what it means to say that the king is above the law. Similarly, if the majority’s reading of the Constitution means, as Professor Vermeule puts it, that the president “can do no legal wrong,” then it has effectively placed the president above the law, whether one agrees with its reading or not.

Continue reading “Immunity, Impeachment and Juristocracy (Part V: Above the Law)”

Posted on

Immunity, Impeachment, and Juristocracy (Part IV: Noncore Official Conduct and Evidentiary Use)

As we discussed in the last post, the Trump Court found that the president was entitled to what it called “absolute immunity” from criminal prosecution for his “core” official acts. Although this result resembles the absolute civil immunity granted by Fitzgerald for the president’s acts within the outer perimeter of his official responsibilities, we saw that it is not based on either the precedential authority of Fitzgerald or the reasoning of that case.

However, with respect to the president’s noncore official acts, Trump follows the balancing approach of Fitzgerald, though it reaches a possibly different result. The Court concludes that the president is entitled to at least presumptive immunity for his noncore official acts, but it leaves open the possibility that he might be granted absolute immunity for these acts. On the one hand, it explains that “[t]he danger [of criminal prosecution] is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __ (quoting Fitzgerald, 457 U.S. at 745). On the other hand, the Court acknowledges that there is a greater public interest in enforcement of criminal law, and in ensuring the president’s compliance with such law, than in private lawsuits. See 603 U.S. at __ (“The President, charged with enforcing federal criminal laws, is not above them.”). The Court therefore suggests, but does not decide, that the president’s noncore official acts should receive only presumptive, rather than absolute, immunity from criminal prosecution.

The Court’s view that Fitzgerald’s balancing test may require a different outcome in criminal cases is plausible enough, particularly given that the test amounts to little more than aggregating each justice’s subjective assessment of the competing policy interests. However, the Court’s explanation as to why it does not decide the question is, as they say, vacuum argumentum. (Ok, nobody says this, but it is ChatGPT’s Latin approximation of “bullshit”). The Court points to the need for further factual development in the lower courts, but this relates solely to the need to categorize the acts charged by the indictment as official or unofficial. This does not explain why the Court was unable to decide the legal question of how much protection should be extended to noncore official acts.

We do not need to wait 40 years for the internal correspondence of the Trump Court to understand what is going on here. Just as the Fitzgerald Court was able to cobble together a majority by sidestepping what would happen if Congress imposed civil liability on the president, so the Trump Court punted on the issue of immunity for noncore official acts, presumably because some justices in the majority wanted absolute immunity and some only presumptive immunity. As Professor Whittington observes, the decision “bears all the hallmarks of an uneasy negotiation and compromise among the Justices in the majority.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 284 (2024). The only difference is that the Trump Court failed to decide an issue presented by the case before it.

While leaving open the question of what level of protection would be extended to noncore official acts, the Trump Court “suggested an extremely broad understanding of what falls within the outer perimeter of the President’s office” for purposes of the immunity analysis. Whittington, 2023-24 Cato Sup. Ct. Rev. at 299. Justice Sotomayor’s dissent similarly noted that “[i]f the majority’s sweeping conception of ‘official acts’ has any real limits, the majority is unwilling to reveal them in today’s decision.” Trump, 603 U.S. at __, slip op. at 28 (Sotomayor, J., dissenting).

In contrast to Fitzgerald, which involved a relatively run of the mill complaint by a government whistleblower that he was dismissed in retaliation for congressional testimony that was embarrassing to the Air Force, Trump concerned an effort by the president to remain in office by overturning the results of the 2020 election. Setting aside the question whether Trump genuinely believed that the elections was “stolen” by his opponent, it is difficult to see how this effort could be characterized as anything other than an attempt to advance Trump’s personal and political interests. The Court nonetheless found that many of Trump’s acts could be characterized as official simply on the ground that “the President’s duty to ‘take Care that the Laws be faithfully executed’ plainly encompasses enforcement of federal election laws passed by Congress.”  Trump, 603 U.S. at __, slip op. at 26.  Thus, for example, it suggested that his speech on the Ellipse, in which he encouraged protestors to march to the Capitol to demand that Congress refuse to certify the electoral votes of his opponent, might be official because “the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election.” Trump, 603 U.S. at __, slip op. at 26-27.

Having thus “blurred the distinction between the President’s legal and political functions,” as Whittington rather mildly puts it, the Court remanded the case with little guidance to the lower courts as to how to untangle the mess that it had made.

The majority did not stop there, however. It also held that prosecutors are forbidden from even introducing evidence of official conduct for which the president cannot be prosecuted. This too goes well beyond the holding of Fitzgerald. Imagine, for example, that Fitzgerald had sued Nixon for defaming him during a press interview after Nixon had left office. Nothing in either the reasoning or holding of the Fitzgerald decision suggests that he would be prohibited from introducing evidence of Nixon’s official conduct to show that Nixon was knowingly lying when he claimed that Fitzgerald was fired for incompetence.

The Trump decision means that even if a (former) president is charged with a clearly “unofficial” crime, prosecution may be more complicated than it otherwise would. In the New York state prosecution of Trump for campaign finance-related crimes, for example, his lawyers argued after the Supreme Court’s decision that the prosecution should not have been allowed to introduce evidence of Trump’s conversations with a White House communications official regarding the criminal activity, even though the crime itself largely occurred before Trump became president and could not plausibly be construed as official in nature.

Collectively, the rulings and language of the Trump opinion have enormous implications for Congress and the extent to which the president and the executive branch remain accountable to the law. We will turn to those in our next post.

 

 

 

Posted on

Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)

Despite Delahunty and Yoo’s claim that Trump “[c]losely follow[ed] Fitzgerald,” the two decisions are quite different in several ways. To begin with, Trump divides the president’s official conduct into “core” and “non-core” conduct. Today we will consider the Court’s ruling as to core official conduct. Although (spoiler alert) the Court finds that the president is absolutely immune from criminal liability for this conduct, its conclusion does not rest on Fitzgerald or the reasoning of that precedent.

The president’s core constitutional powers, according to the Court, are those within his “conclusive and preclusive” constitutional authority. They include both powers expressly provided in the Constitution, such as the power to grant pardons, and those that have been found to be implied, such as the power to remove executive officers appointed by the president and to decide whether to recognize foreign governments.

These core constitutional powers are not limited to formal acts. The Court explains that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Therefore, President Trump’s discussions with the Justice Department in connection with alleged fraud in the 2020 election, even if proved to be a mere sham to provide cover for his efforts to overturn the results of the election and remain in office, were exercises of his core constitutional powers.

The Court held that all exercises of a president’s core constitutional powers were beyond Congress’s power to regulate or criminalize. Although it terms this as the president enjoying “absolute immunity” from criminal liability for his core official acts, this is a somewhat misleading shorthand (as Justice Barrett’s partial concurrence suggests). The Court’s holding is not really that the president is immune from prosecution for crimes committed in the course of exercising his core constitutional powers, but that Congress lacks the power to criminalize those acts in the first place, even as part of a statute of general applicability. Echoing Barrett, Professor Whittington explains that “the question is not whether Presidents are immune from criminal prosecution as such, but instead whether particular criminal law provisions are constitutionally infirm as they might be applied to presidential actions.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 301 (2024) (emphasis in original). A straightforward and relatively uncontroversial application of this principle is that Congress could not make it a crime to issue a pardon or to exercise the president’s constitutional power of removal.

The application of this principle to criminal statutes of general applicability is a good deal more controversial, but Whittington is correct that it was not invented out of whole cloth for purposes of the Trump case. He points to Bill Barr’s 2018 memorandum, which argued that Trump’s 2017 firing of FBI Director James Comey could not be prosecuted as obstruction of justice. (Barr in turn relied on prior Department of Justice opinions that found that interpreting certain broadly worded criminal statutes to the president would raise significant constitutional concerns).

Comparing Barr’s careful and narrow argument to the radical and slipshod opinion of the Trump Court is instructive. Barr does not make any claim that presidents enjoy criminal immunity for their official acts. He cites Fitzgerald’s civil immunity as an example of the law’s “array of protections designed to prevent, or strictly limit, review of the Executive’s discretionary powers,” but he does not suggest there is or should be any criminal immunity. Instead, he did what one would logically do under the Barrett/Whittington approach; he examined whether the statute in question, 18 U.S.C. §1512, the federal obstruction statute (also one of the two statutes charged in Trump), would be unconstitutional if applied to Trump’s firing of Comey. Much of Barr’s argument was focused on the proper construction of §1512, but he invokes the doctrine of constitutional avoidance to support his view that the statute should not be read to reach the Comey firing. Specifically, he argues that “defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.” Barr Memorandum (Introduction) (emphasis added). The terms “facially-lawful” and “solely” are integral to Barr’s argument, and he repeats them several times in the memo. Continue reading “Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)”

Posted on

Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)

If Trump v. United States has no foundation in the original meaning of the Constitution (as discussed in my last post), what is the rationale of the decision? Delahunty and Yoo make three main points in support of the majority’s ruling: (1) the holding is consistent with (if not compelled by) the Court’s reasoning in Nixon v. Fitzgerald, 457 U.S. 731 (1982); (2) the holding is consistent with separation of powers principles; and (3) the holding is supported by public policy considerations, specifically the need to end the (allegedly) abusive prosecutions of the former president (and to prevent similar actions in the future). To a significant extent, these justifications amount to different ways of saying the same thing. Today we will look at the Fitzgerald decision and whether the separation of powers/policy rationales of that case provide support for Trump.

Fitzgerald held, in a 5-4 decision, that current and former presidents enjoy absolute immunity from civil damage suits for actions taken within the “outer perimeter” of their official duties. The majority opinion by Justice Powell identified a variety of sources of law that were relevant to the issue before it. First, it noted that its prior immunity decisions “have been guided by the Constitution, federal statutes, and history.” 457 U.S. at 747. Second, “at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law.” Id. Third, the Court “necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.” Id. at 747-48.

The Court then suggest that the immunity analysis may be somewhat different for the president:

In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of the common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.

457 U.S. at 748.

This is a rather word salady way of saying two things. First, the Court thinks that the president should be treated differently in the immunity analysis than other executive officials, such as cabinet officers and governors. Specifically, while the Court’s precedents called for evaluating immunity based on the particular function being performed by the official who is sued for damages, Fitzgerald found that the unique nature of the presidency required extending immunity to all conduct within the “outer perimeter” of this official responsibility. Id. at 756; see also id. at 750 (“The President’s unique status under the Constitution distinguishes him from other executive officials.”).

The second point is that the grounding of the president’s immunity in separation of powers arguably placed it beyond Congress’s power to regulate. If the Constitution mandates absolute immunity for the president, Congress would be prohibited from imposing damages liability for any conduct within the outer perimeter of his duties. However, the Fitzgerald Court declined to decide whether the president would enjoy immunity in the event Congress enacted a statute which expressly authorized civil damages against the president. See Fitzgerald, 457 U.S. at 748-49 n.27 (“our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress”).

This position was criticized by both the dissenters and Chief Justice Burger in his concurrence; they agreed that it was inconsistent for the majority to both claim that the president had absolute immunity based on separation of powers, on the one hand, and to leave open whether this immunity could be abrogated by affirmative congressional action, on the other. See Fitzgerald, 457 U.S. at 792 “We are never told . . . how or why congressional action could make a difference.”) (White J., dissenting); id. at 798 (Blackmun, J., dissenting); id. at 758, 763 n.7 (Burger, C.J., concurring).

The internal correspondence of the Fitzgerald Court shows that almost all of the justices, in fact, believed that this was a contradiction, though they were sharply divided on which way it should be resolved. The four dissenting justices, of course, believed the Constitution provide no immunity, while at least two other justices in the majority privately agreed with Burger that the constitutional immunity would apply even in the face of a statute to the contrary. Powell also indicated he would agree with Burger should the issue be presented, though he fluctuated somewhat on how definite this position was. Only Justice Stevens was firmly in the undecided camp, and he evidently refused to join the majority opinion unless it clearly spelled out that affirmative congressional action would present a different case.

Personally, I can see where Stevens was coming from. Although the Fitzgerald Court states that “[w]e consider [the president’s immunity from civil damages] a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” 457 U.S. at 749, these buzzwords mean very little. The fact that the Court “considers” immunity to be a “functionally mandated incident of the President’s unique office” just means that it believes subjecting the president to civil damages is a bad idea that would interfere with his ability to do his job. That it is “rooted in the separation of powers” is little more than another way to refer to the president’s “unique office,” or, as the Court phrases it later, “the special nature of the President’s constitutional office and functions.” See 457 U.S. at 756. The claim that immunity is “supported by our history” appears to be mostly meaningless filler.

Indeed, Powell’s early drafts used the phrase “justified by considerations of public policy” instead of “supported by our history.” He changed this wording, and made several other edits, in response to comments from his colleagues that the draft was too forthright in acknowledging that the decision was essentially an exercise of judicial policymaking. One particularly amusing memo from Stevens expresses concern about the frequent references to public policy and descriptions of “the Executive’s immunity as something that is granted by the Court rather than provided by law.” He explained that “[i]n a realistic sense, perhaps your opinion is entirely correct in referring to grants of immunity by judges, but I feel much more comfortable when I am able to say that we are merely applying the law as we understand it to exist independently of the composition of the Court.” Powell dutifully made the cosmetic changes, but the dissent still pointed out the reality. See 457 U.S. at 769 (noting that “the judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice, a choice that is without substantial support and that in all events is ambiguous in its reach and import”) (White, J., dissenting).

Given that, in a “realistic sense,” the opinion was more of a policy choice than a judicial decision, it is understandable that Stevens insisted on reserving the question of what would happen if Congress acted to impose liability on the president. Congress is rather better suited than the Court to make a policy judgment about whether the president should be subject to civil liability. Even if one accepts that the Constitution requires the courts to balance the public interest supporting and opposing immunity, the fact of congressional action would seem to be a factor that should be considered in weighing the competing interests (a point Powell made to his skeptical colleagues in an internal memo).

It is also worth noting that the Fitzgerald Court’s rhetoric about the president’s “unique office” should be taken with a grain of salt. In a case several years earlier, Butz v. Economou, 438 U.S. 478 (1978), the Court had held by a 5-4 majority that cabinet officers and other federal officials were generally entitled only to qualified immunity in civil damage suits. The dissent, however, contended that absolute immunity should apply. Three of the four dissenters in Butz joined the majority in Fitzgerald, while four members of the Butz majority dissented in Fitzgerald. Powell was the only justice who switched sides, and thus perhaps the only one who thought the president’s unique office was determinative of the level of immunity. (Justice O’Connor, who joined the majority opinion in Fitzgerald, had not been on the Court when Butz was decided). The decision to provide absolute immunity to the president but not to cabinet officers is thus one not necessarily dictated by the reasoning of either Butz or Fitzgerald. Cf. Fitzgerald, 457 U.S. at 784 (pointing out that the majority’s concerns about the chilling effect of civil lawsuits would apply to all officers, not just the president) (White, J., dissenting). Continue reading “Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)”