Category: Oversight of the Executive

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The Unitary Executive (Part 8): Congressional Oversight

Congressional oversight is a means of “caging the executive lion” which Prakash believes to be constitutional and appropriate. See The Living Presidency at 261-64. But he overlooks the ways in which the unitary executive makes congressional oversight more difficult.

Congress assigns duties and authorities to heads of departments and other executive officers. Congressional oversight is a means of holding those officers to account for how the law is being executed. But the combination of the president’s authority to dictate to executive officers the proper interpretation of the statutes they operate under and to direct them in the exercise of their powers under those statutes undermines congressional oversight. The officers can be called to testify, but they can shift responsibility to the president (as Jackson would have had Duane do). Meanwhile, the president cannot be called to testify, and, according to longstanding executive branch doctrine, neither can top White House aides who may be the true decisionmakers. See The Living Presidency at 251 (“[O]n the assumption what senior White House officials say represents the president’s will, these officials direct the vital work of other significant officers, including cabinet secretaries.”).

This exacerbates a problem Prakash rightly identifies, namely the trend of presidents stretching statutory authorities in order to, in effect, enact new programs that Congress has not approved. See, e.g., The Living Presidency at 51-52 (discussing President Obama’s “pen and phone” strategy to adopt the DACA and DAPA immigration programs). Most often these involve statutory authorities that have been delegated to a specific executive officer, not to the president. Yet once it is accepted that the president can rightfully direct executive officers in the performance of their statutory duties, as it increasingly has been in recent years, it becomes commensurately difficult to hold the officer accountable for the exercise of the delegated authority.

Consider, for example, the student loan forgiveness program adopted in the Biden administration. When he ran for president in 2020, Biden had promised to adopt a broad student loan forgiveness program. Initially this proposal focused on legislative action, although some of Biden’s rivals, such as Senator Elizabeth Warren, suggested it could be done through existing authority delegated to the secretary of education. Following Biden’s election and the confirmation of Miguel Cardona as the secretary of education, the new administration announced that the secretary would undertake a review to determine whether there was existing authority to forgive student debt. This review consisted of legal analysis by the general counsel of the Department of Education and DOJ’s Office of Legal Counsel, which ultimately determined (surprise!) that the authority could be found in an existing statutory provision (though a different provision than the one Warren relied on). The secretary then announced a broad loan forgiveness program which covered about $430 billion in student debt.

Formally this major decision had been made by the secretary of education, but everyone understood that this was a legal fiction. In reality, President Biden (or, more likely, his advisors) realized that Congress would not pass the student debt relief promised in the campaign and therefore directed the administration’s lawyers to find a way to accomplish the goal without legislation. This is precisely the dynamic Prakash describes (and decries). See The Living Presidency at 52 (“the desire to keep promises and thereby satisfy an electoral base often causes presidents to strain and stretch” existing law and “transgress existing norms, be they constitutional or statutory”). Executive branch lawyers, meanwhile, are highly incentivized to “provide legal cover and exoneration for executive aggrandizement.” Id. at 87; see also id. at 21 (“as judicial review becomes weaker or nonexistent, executive lawyers find more legal wriggle room and adopt increasingly implausible readings of the law”). Even where judicial review is potentially available, there is little reason not to adopt the most aggressive reading of the law so long as the president is prepared to accept a possible or likely loss in court. See, e.g., Biden v. Nebraska, 600 U.S. __ (2023) (rejecting the Biden administration’s interpretation of its authority to cancel student debt). Increasingly, presidents are willing to accept such possible losses and even to seek political gain from adverse judicial decisions by attacking the legitimacy of the courts.

The unitary executive plays a significant role in enabling this phenomenon. Because everyone understood that Cardona himself neither was responsible for interpreting the relevant statutory provisions nor actually made the decision to implement the loan forgiveness program, there was little point in trying to hold him accountable for these actions. Congressional Republicans made some half-hearted efforts to get documents relevant to White House and OLC involvement in the decisionmaking process, but there was little concerted effort to find out who actually made the decision to implement student loan forgiveness through administrative action. As a result there was no one who took responsibility for a decision that would have cost taxpayers nearly a half trillion dollars.

One major obstacle to Congress assigning responsibility for such administrative decisions is the doctrine of executive privilege and related doctrines which executive branch lawyers have developed to stymie congressional oversight. To Prakash’s credit, he recognizes the importance of dramatically reining in executive privilege if we are to “recage the executive lion.” See The Living Presidency at 261-64. Indeed, he seems to suggest that executive privilege simply be eliminated as a defense to congressional oversight. See id. at 262-64 (“Our system of checks and balances requires a Congress able to check the executive, which is impossible if the executive can block inquiries by invoking executive privilege.”).

A system that operated as Prakash seems to envision might indeed compensate for many of the problems caused by the unitary executive. Imagine, for example, if the president was permitted to fire any executive officer but was required to explain the reason to Congress. And if Congress were entitled to all documents, emails, text messages, etc. that could verify or undermine the president’s explanation. And if every executive officer were entitled to and, if called, required to testify before Congress regarding orders they believed were illegal or required them to exercise their statutory authorities in an improper manner. And if meritorious officers who faithfully executed the law were protected against the economic consequences of wanton removal by, for example, continuing to receive their salary for the remainder of their term. These steps, all of which appear to be constitutional in Prakash’s view, could eliminate many and perhaps all of the harmful consequences of the unitary executive; indeed, one could imagine them improving (from the standpoint of congressional supremacists such as myself) on the mostly unitary system that has prevailed since the Clinton administration. Cf. Strauss, 75 Geo. Wash. L. Rev. at 702 (“Our most recent Presidents, if not their predecessors, seem to have been at pains to convey the impression that they are personally responsible for the conduct of domestic governance, to a degree that extends to the resolution or decision of particular administrative issues; and their cabinet officials sometimes speak as if they were following binding presidential orders, rather than exercising their own statutory powers.”).

Unfortunately, Prakash makes no effort to grapple with the institutional, jurisprudential, statutory and possibly constitutional changes that would be needed to make this desirable world a reality. There are more modest and achievable (which is not to say easy) reforms that could be considered to restore some degree of congressional influence over the administration of the law. See generally Christopher J. Walker & Aaron Nielson, Congress’s Anti-Removal Power, 76 Vand. L. Rev. 1 (2023). But all these measures would be for the purpose of offsetting the harms caused by the triumph of the unitary executive.

Prakash’s stubborn refusal to acknowledge these harms is particularly perplexing in light of the following passage from his book on presidential power:

American history is . . . littered with examples of Congress pushing back against executive overreach. Consider limitations on the president’s power to fire officers. Whatever one thinks of their constitutionality (I am dubious), federal laws limiting the executive’s power to remove federal officers (“for cause” laws) are ubiquitous and represent sustained efforts to curb presidential authority. These laws have been successful, for modern presidents respect these limitations and almost never even try to remove such officers.

The Living Presidency at 248.

Here Prakash acknowledges several important realities. The first is the unsurprising fact that independent executive officers tend to restrain executive overreach and promote faithful execution of the law. The second is that for-cause removal limitations have been effective at protecting independence. The third is that these limitations have helped to establish and reinforce norms of independence that sweep beyond the formal legal prohibitions. Until recently, presidents have respected the independence of many types of officers, such as inspectors general and the director of the FBI, even though they have the formal legal power to fire them without cause. For example, the president has never fired a comptroller of the currency, even though the only legal restriction on doing so is that the president must communicate to the Senate his reasons for removal. See Walker & Nielson, 76 Vand. L. Rev. at 10 (“While other factors obviously may also be at play, no president has ever fired a Comptroller of the Currency, and that position is protected only by a weak dose of Congress’s anti-removal power.”).

These norms have been largely if not entirely swept away in the enthusiasm for one man rule that has accompanied the rise of unitary executive theory. The current president, for example, has used the removal power not only against officers protected by for cause removal provisions (such as the FTC commissioner involved in the Slaughter case) and those with strong norms of independence (such as inspectors general), but against categories of officers no president had previously attempted to remove or had even claimed the power to remove. These include inferior officers not appointed by the president, interim U.S. attorneys appointed by the courts, and even officers traditionally understood to be part of the legislative branch.

It may be true that a Congress determined to “cage the executive lion” can still effectively use oversight and other tools to do so even under the maximalist version of the unitary executive. But there can be no doubt that the unitary executive both makes the problem greater and the solutions more difficult. For example, the current administration has not only fired numerous inspectors general but did so without complying with the notice requirements provided by law, which it maintains (at least plausibly) are a violation of unitary executive principles. This does not inspire confidence in the willingness of the executive to acknowledge a constitutional obligation to cooperate with oversight investigations regarding such terminations (or anything else). And while future administrations may purport to be more accommodating as a matter of policy, it is doubtful that they will voluntarily give up any of the constitutional powers that have been asserted by the current administration. As Prakash himself points out, this is not how administrations have worked in the past. Instead, every administration views presidential power as “a one-way rachet,” where the president and his supporters will insist that “if one or more presidents have taken some step or act, the incumbent absolutely must be able to do the same.”  The Living Presidency at 128-29.

In short, congressional oversight is not going to be successful in caging the executive lion without a lot of additional reforms. In our final post, we will consider it might look like to begin reforming and constraining the unitary executive. Before doing that, however, we will take a quick look at some recent scholarship that may shape the Supreme Court’s perspective on such reforms.

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OLC’s Attack on the Presidential Records Act is Not Worth a Fig Leaf

The Office of Legal Counsel recently declared that the Presidential Records Act (PRA) “is unconstitutional, and the President need not further comply with its dictates.”  50 Op. OLC __, slip op. at 52 (Apr. 1, 2026). There was a time that when such a declaration would have generated major pushback in Congress. When in 2002 President Bush issued an executive order changing the executive branch’s interpretation and application of the PRA in comparatively minor ways, there was bipartisan criticism that these changes violated the spirit and letter of the act. Multiple hearings were held and bipartisan legislation introduced to reverse the executive order, which was ultimately rescinded by President Obama.

By contrast, there has been a fairly muted congressional reaction to the OLC opinion and, as far as I can tell (with the assistance of ChatGPT), complete silence from congressional Republicans. There are several possible reasons for this, but I suspect the most significant is learned helplessness. No one believes that the OLC opinion has anything to do with legal analysis or that there is any point to attempting to have a rational debate about it. Given the daily occurrence of more politically salient scandals, even congressional Democrats have little incentive to spend time on this issue.

In brief, OLC’s argument was that there was no enumerated Article I legislative power that allows Congress to regulate presidential records. This is an astonishing claim that no one had ever made before. OLC notably does not cite any judicial precedent, legal scholarship or even an executive branch opinion which reaches such a conclusion. Notably, when former President Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act (PRMPA), a predecessor statute to the PRA which applied solely to presidential records of the Nixon administration, he made no claim that it was beyond Congress’s enumerated powers. Instead, he argued (among other things) that by asserting public ownership and control of presidential records, PRMPA violated the separation of powers and infringed on executive privilege. These arguments were rejected by the Supreme Court. See Nixon v. Administrator of General Services (“Nixon v. GSA”), 433 U.S. 425 (1977).

OLC’s objections to the PRA are substantially similar to Nixon’s objections to PRMPA, which presents a problem because OLC opinions cannot overrule Supreme Court decisions (at least not yet). OLC attempts to get around this by recasting those objections as relevant to the enumerated powers “issue” (which it made up) and then arguing that the Supreme Court did not decide that issue in Nixon v. GSA. This is a sleight of hand that will not fool anybody who does not want to be fooled.

OLC’s next move is to focus its enumerated powers analysis on the question whether the PRA can be justified as an exercise of Congress’s oversight power. This is odd because Congress’s oversight power is not an enumerated power, and OLC cursorily dismisses or ignores altogether actual enumerated powers that provide fairly obvious grounds for enactment of the PRA. But as Professor Jonathan Shaub observes, focusing on the largely irrelevant issue of the scope of Congress’s authority to obtain executive branch records allows OLC to rely on a “treasure trove” of internal opinions and arguments that it has employed over decades to restrict congressional oversight.

Chief among these is a list of historical instances (or, in Shaub’s phrase, “tired examples”) in which presidents have refused congressional demands for executive branch records. This list was initially developed by executive branch lawyers in the 1940s and 1950s to support the proposition that the sitting president enjoyed total and unreviewable control over executive branch information. It was later employed in the 1980s to support a broad interpretation of the doctrine of executive privilege recognized in United States v. Nixon, 418 U.S. 683 (1974). And executive branch lawyers repurposed it again following Raines v. Byrd, 521 U.S. 811 (1997) to argue against congressional standing to enforce subpoenas. For OLC and its ilk, this list truly is a floor wax and a dessert topping.

Continue reading “OLC’s Attack on the Presidential Records Act is Not Worth a Fig Leaf”

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Can State Legislatures Compensate for the Absence of Congressional Oversight?

The Washington Post had an article this weekend that discusses the paucity of oversight hearings in the current Congress, noting that “administration officials testified more often before many committees during the first year of President Joe Biden’s term than they have this year.” The article mentions several areas where Democrats contend that more oversight is needed, including Robert F. Kennedy Jr.’s vaccine policies, the administration’s boat strike campaign and saber rattling toward Venezuela, the failure of DHS secretary Noem to appear before the Senate Judiciary Committee to answer questions about immigration raids and other matters, and the absence of appearances by various financial regulators, including acting director of the CFPB Russell Vought and director of the FHFA Bill Pulte, before the Senate Banking Committee.

The efforts of the Senate Health, Education, Labor and Pensions (HELP) Committee to get Kennedy to testify is a particularly interesting case. In September the committee held a hearing where former CDC director Susan Monarez, who was fired less than a month after being confirmed by the Senate, testified that she was terminated because she refused to comply with Kennedy’s demands that she commit to approving changes to the vaccine schedule regardless of scientific evidence. Her testimony and that of another former HHS staffer contradicted Kennedy’s prior testimony before the committee about the circumstances of her termination and the changes to vaccine policy. Chairman Cassidy, who clearly had serious concerns both about Monarez’s termination and the vaccine policy, noted that the committee had sent a request to HHS for records relating to the subject of Monarez’s testimony, and he invited Kennedy to come before the committee to provide his side of the story. Kennedy has yet to appear before the committee, nor to my knowledge has HHS produced the required records.

On December 9, the committee minority sent a letter to Cassidy demanding that Kennedy be called to testify, and pointing out that, despite his promise to appear before the committee on a quarterly basis if needed, Kennedy had not been before the committee in seven months. However, it appears that Cassidy, who is up for reelection and facing a primary challenge in 2026, is unwilling to press the issue at this time.

The combination of an extraordinarily aggressive and norm-breaking executive and a Congress so passive that Steve Bannon calls it “the Duma” should be a concern to all Americans. Fortunately, our system of separated powers provides other means to scrutinize and check the activities of the federal government.

Among these mechanisms are the oversight and investigatory authorities of the fifty state legislatures. The power of state legislatures to conduct oversight and investigations has long been recognized. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (“Investigations, whether by standing or special committees, are an established part of representative government.”). As I note in this explainer posted on the Levin Center’s website, state legislatures may gather information and hold hearings regarding federal government activities that affect their states. The exercise of compulsory process, particularly that directed to federal officers and agencies, presents more delicate issues, but legislatures that approach these matters in a thoughtful and deliberate way can successfully navigate them.

As Woodrow Wilson observed 140 years ago, “the only really self-governing people is that people which discusses and interrogates its administration.” If Congress is unwilling or unable to perform that duty, it creates an enormous vacuum that enterprising state legislators should be ready to fill.

 

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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.

 

 

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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.

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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)”

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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)”

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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)”

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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.

 

 

 

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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)”