Category: Unitary Executive

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Lindsey Halligan and the Unitary Executive

Correction: Bannon and Navarro were not pardoned for contempt of Congress. Trump pardoned Bannon before leaving office in 2021, but that pardon did not cover Bannon’s subsequent contempt of Congress. Navarro has not been pardoned at all. Thanks to @fedjudges on X for the correction.

As you may have heard, James Comey, the former FBI director, deputy attorney general, and 1985 graduate of the University of Chicago Law School, has been indicted for lying to Congress. This is a rarely prosecuted crime. To my knowledge only one person this century has been tried and convicted for congressional perjury or false statements (three others have pled guilty). That person is Roger Stone, who was pardoned by President Trump. Only two people this century have been tried and convicted for the related crime of contempt of Congress. Both of them, Steve Bannon and Peter Navarro, were also pardoned by Trump. [see correction] (Navarro currently works in a senior position in the Trump administration). This is not to mention the hundreds of individuals Trump pardoned for offenses (including obstruction of a congressional proceeding) related to the January 6, 2021 attack on the Capitol. For some reason, however, the Trump administration has decided that protecting the integrity of congressional proceedings is very important in Comey’s case.

Comey thinks he knows the reason. He has filed a motion to dismiss the indictment for vindictive and selective prosecution. The government has responded indignantly that there is no evidence that the relevant decisionmaker in the case harbors any animus toward Comey:

To start, the relevant analysis is whether the “prosecutor charging” the offense “harbored vindictive animus.”  Here, that prosecutor is the U.S. Attorney.  Yet the defendant doesn’t present any evidence that she harbors animus against him.  Instead, he says that he doesn’t need any such evidence because his claim “turns on the animus harbored by the official who prompted the prosecution.”   And, according to him, that is the President.  As discussed below, the President does not harbor vindictive animus against the defendant in the relevant sense.  Before reaching that issue, however, the Court should determine whether the defendant has offered sufficient evidence to find that the President displaced the U.S. Attorney as “the ultimate decision-maker” in bringing this prosecution.

United States’ Response in Opposition to Defendant’s Motion to Dismiss Indictment Based on Vindictive and Selective Prosecution at 20, United States v. Comey, No. 1:25-CR-272-MSN (E.D. Va. filed Nov. 3, 2025) (citations omitted) (hereinafter “Government’s Vindictiveness Br.”).

It is noteworthy that the brief does not dispute that the president could displace the U.S. attorney as the ultimate decisionmaker, only that he did so. Thus, in response to Comey’s argument that the relevant vindictive actor is “the head of the Executive Branch” who is the U.S. attorney’s “ultimate supervisor,” the government concedes that this “might be a legitimate” point “if the defendant had evidence that the President ordered his prosecution.” Id. at 22. In support of the contention that the president did not “order” the prosecution, it cites a statement Trump made in response to a reporter’s question on September 25, the day that Comey was indicted:

I can’t tell you what’s going to happen because I don’t know yet.  Very professional people, headed up by the Attorney General, [Deputy Attorney General] Todd Blanche and [U.S. Attorney] Lindsey Halligan . . . they’re going to make a determination.  I’m not making that determination.  I think I’d be allowed to get involved if I want, but I don’t really choose to do so.

Government’s Vindictiveness Br. at 16 (emphasis added).

The government contends that the relevant decisionmaker is Lindsey Halligan, who was appointed as interim U.S. attorney by Attorney General Pam Bondi on September 22, 2025. Three days later Comey was indicted.

According to the government, Halligan made the decision to indict Comey based on her 72 hours (or less) of experience on the job. This may be difficult to believe as a factual matter, but the government suggests that it is the appropriate legal framework with which to evaluate Comey’s allegation of vindictiveness. It points out that under the law “a U.S. Attorney is tasked with deciding what offenses to prosecute in her district.” Government’s Vindictiveness Br. at 17. In making such decisions she enjoys “broad discretion” and her exercise of that discretion is entitled to a presumption of regularity. Id. The implication is that absent an express order or some other direct intervention by the president, the U.S. attorney is expected to exercise independent judgment in making prosecutorial decisions.

The question I have is whether that legal framework is consistent with the unitary executive theory that the administration advances in judicial proceedings and which seems to be favored by a majority of the current Supreme Court. We will turn to that now. Continue reading “Lindsey Halligan and the Unitary Executive”

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An Outline of Congress’s Interest in the Slaughter Case

Following up on my last post, I think an institutional position for Congress in the Slaughter case would look something like this.

First, the Court can avoid addressing the precedential status of Humphrey’s Executor by holding that courts cannot intervene in a dispute regarding an officer’s purported removal from a multimember commission like the Federal Trade Commission (FTC). The government makes several broad constitutional and statutory arguments against judicial power to provide relief in this case (some of which depend on its view that Slaughter is a presidential subordinate). Brief for Petitioners at 38-47. Whatever the merit of those arguments, there is none to the government’s suggestion that the Court should both reach the substantive question of whether the removal limitation in the FTC Act is constitutional and hold that courts in any event lack the power to grant any relief. If the courts lack the power to grant relief, there is no basis for reaching the merits of Slaughter’s claims. Continue reading “An Outline of Congress’s Interest in the Slaughter Case”

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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 be an impossible task, but we will not know unless someone tries.

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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”