“I am your retribution” –Donald Trump
On April 25, 194 days before the November 5 presidential election, the Supreme Court heard Donald Trump’s argument that the “January 6” case being prosecuted by Special Prosecutor Jack Smith was barred by presidential immunity. Although there is no provision in the Constitution granting a former President immunity from prosecution for criminal acts committed while he held office, counsel for Mr. Trump, D. John Sauer, argued that immunity is inferred under Article I of the Constitution, specifically the “vesting clause” which details the duties of the President. (Arg. p. 5, l. 3-5). In support of this contention, Trump’s lawyer cited to the decision of the Supreme Court in Nixon v. Fitzgerald that held the President was immune from civil suit. That decision was intended to prevent the executive from being paralyzed by lawsuits against the President. The lawyer for the special prosecutor, Michael Dreeben, responded that there was no such danger with a criminal prosecution.
Justice Sonia Sotomayor focused on the implications of Sauer’s argument. She asked:
If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?
(p. 9, l. 16-20).
Sauer’s response was shocking, and unnecessarily undermined his argument.
It would depend on the hypothetical. We can see that could well be anofficial act.
(p. 9, l. 21-23).
When Justice Ketanji Jackson asserted that a President who used the trappings of his office to commit a crime would not be acting in his official capacity (p. 14, l. 7-13), Sauer, relying on Fitzgerald responded that such an allegation “could be made in every single case,” and would result in “an intrusive discussion of determination of the presidential personal motives,” which would interfere with the job of the President in governing the nation. (p. 14, l. 16-19; p. 15. l. 4-13).
The flaw in Sauer’s argument is that civil suits and criminal prosecutions do not impose the same burdens upon the presidency. Anyone can file a civil action against a President with or without a basis in law and fact. A sitting President must be impeached and removed from office before they can be prosecuted for a crime and a prosecutor must have probable cause to bring an indictment. So too, a former President cannot be prosecuted for his official acts, and only for his unofficial acts after he leaves office. The question before the Court, articulated by Justice Jackson, is whether a former President be prosecuted for essentially abusing his office for private gain. A rule resolving that conundrum need not be concerned with lawsuits diverting the President from doing his job.
Indeed, this distinction was expressly recognized by the Court in Fitzgerald:
The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President “above the law.” For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends. (Emphasis added).
The Court’s reliance on the absolute immunity afforded prosecutors and judges is telling because it has never been the case that prosecutors and judges have been immune from prosecution when they made use of their offices for private gain.
Justice Neil Gorsuch was also troubled by Sauer’s contention that the President was entitled to absolute immunity for all his actions. Gorsuch asked Sauer whether the D.C. Circuit’s decision in Blassingame v. Trump provided any guidance to the court:
And then the question becomes, as we’ve been exploring heretoday a little bit, about how to segregate private from official conduct that may or maynot enjoy some immunity, and we—I’m sure we’re going to spend a lot of time exploring that.
But the D.C. Circuit in Blassingame, chief judge there joined by the panel expressed some views about how to segregate private conduct for which no man is above the law fromofficial acts.
(p. 18, l. 8-19).
In Blassingame, members of the House of Representatives and Capitol Police Officers sued Donald Trump for conspiracy to violate civil rights laws by preventing them from performing their duties through conduct arising out of the Jan. 6 attack on the Capitol. As in the case before the Supreme Court, Trump claimed that he was absolutely immune for these acts. And, as in the case before the Supreme Court, the main question presented was whether Trump acted in his official capacity as the President of the United States, or in his private capacity as a candidate for President.
After reviewing previous cases on presidential immunity, the Blassingame court summed up the state of the law stating:
[The] President’s actions do not fall beyond the outer perimeter of official responsibility merely because they are unlawful or taken for a forbidden purpose. Rather, the President’s official immunity insulates all of his official actions from civil damages liability, regardless of their legality or his motives.
What the court means by this is that in determining whether the President is entitled to immunity, a court is to look solely at the context in which the President acts. To illustrate the point, consider a presidential statement at a State of the Union address versus a statement made during a campaign rally. Even if the statement calls for an objectively illegal act, the very same statement is immune if made during the former while actionable if made during the latter.
This understanding is reflected in the court’s statement:
[T]he inquiry we have outlined is consistent with his submission that the analysis should turn on “the function being performed and not the politics or policy being advanced or the words being used.” Trump Reply Br. 11. And the inquiry does not consist of “[t]rying to identify speech that would benefit a president politically.” Id. at 4.
While this may be a defensible position in the context of a civil action, it is a dangerous proposition in the context of a criminal case as the one before the Supreme Court. It would justify Sauer’s position that a President who orders the assassination of a political rival “may well be an official act” if made at a cabinet meeting but not at dinner at Mar-a-Lago.
The conservative and liberal wings of the Court are united in this one aspect: both are concerned about fashioning a rule that would lead to unintended consequences. Justice Gorsuch fears a rule that would interfere with presidential actions that violate international law (though maybe not domestic law) such as ordering the execution of a terrorist in a foreign land. Justice Sotomayor is equally concerned about insulating from prosecution a President who seeks to exercise dictatorial power assassinating his rivals.
Justice Samuel Alito indicated that he did not believe that there was any danger that a future President could order the assassination of a political rival, stating that under the Uniform Code of Military Justice soldiers are prohibited from obeying an unlawful order such as the one hypothesized by Justice Sotomayor (p. 24, l. 2-11). Sauer agreed. To the extent that the immunity question turns on whether prosecution for criminal conduct is necessary to prevent a president from engaging in a crime, Sauer argued:
[T]here’s a whole series of structural checks other than criminal prosecution that are designed to deter these kind of, you know, outlandish scenarios or extraordinarily obviously illegal things.
(p. 26, l. 9-13).
As will be discussed in greater detail later, this statement may not be true in the future. Various conservative think tanks have developed plans for radically changing selective service rules which would permit a future President to replace persons who today might act as a failsafe to illegal conduct. Indeed, Trump has already announced plans to sweep the executive of people who do not have complete loyalty to him. The America First Policy Institute has already developed a plan to replace current employees with those loyal to Trump.
This seemingly hypothetical scenario actually happened during the waning days of the Trump administration. Trump wanted Attorney General William Barr to announce that the Justice Department had uncovered fraud in voting across the United States. Barr refused and told Trump that there was no evidence to support such a statement. After Barr resigned, Trump tried to convince Acting Attorney General Jeffrey Rosen to “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.” After Rosen refused, Trump attempted to install a more cooperative DOJ official to replace Rosen but backed down after he was told that the entire leadership of the DOJ would resign if Trump made that appointment.
Conservatives may point to this example as proof that the institutional safeguards worked. But if Trump is re-elected he will not allow the deep state to again block presidential will. With DOJ run by Trump loyalists, the brakes on presidential authority will be gone.
If nothing else, we know with absolute certainty that Trump’s future attorney general will not refuse an order to declare that the Department of Justice has found irregularities in an election or a vice president who will refuse an order directing them not to certify an election.
Even in a situation where the military refuses to carry out an unlawful order, the President still has power. It has been reported that some of his followers on Jan. 6 intended to murder Speaker Nancy Pelosi and Vice President Mike Pence. President Trump was even aware that rioters wanted to hang Pence. Despite these threats, and physical attacks on Capitol Police, Trump refused to tell the rioters to leave the Capitol for 187 minutes from the time he gave his speech telling them to go to the Capitol and “fight like hell.” Who needs the military when you have the Proud Boys?
The most important exchange occurred when Justice Amy Barrett got Sauer to concede that a President is not entitled to immunity for private acts. On its face this did not appear to be a concession at all since it is just a corollary to the principle that the President has immunity for his public acts. But then Justice Barrett took Sauer through the indictment and challenged him to tell her which acts alleged against the President were public and which were private. So….
Sauer agreed that if (which he did not concede occurred) President Trump “turned to a private attorney, he was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results,” that conduct would be private (p. 29, l 2-12). So too, if President Trump, “conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge.” (p. 29, l. 14-19). This would also be private: “Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort.” (p. 29-30, l. 20-1).
Sauer argued that it would be necessary to remand the case to the district court for that court in the first instance to determine what was a public versus a private act and that the court would have to scrub the indictment of any reference to a public act (p. 31, l. 5-16). Chief Justice John Roberts asked how a case could go forward if there could not be any reference to public acts, for example in the case of a bribe accepted to appoint a particular person to be an ambassador. Sauer said the case could not go forward (p.32, l. 8-11).
The absurdity of Sauer’s position was further illustrated by his answer to Justice Elena Kagan’s question whether it would be an official act for the President to order the military to stage a coup. He said that it could be and that the President could not be prosecuted unless he was first impeached and removed. (p. 42, l. 8-11; p. 43, l. 4-8). He defended his position by citing to the various safeguards in place to prevent that from happening. (p. 43, l. 13-18). Unfortunately, Justice Kagan did not ask Sauer who would be left to impeach and convict a President in the event of a successful coup.
Sauer seeks a rule that would immunize a President from any conduct that a President engages in, in the course of his official duties. He concedes that purely private acts can be prosecuted. So a President could be prosecuted if while in office he takes pot shots at pedestrians while walking down Fifth Avenue. But how could a coup ever be part of a President’s official duties? If the President ordered the Joint Chiefs of Staff to arrest all members of Congress and the Supreme Court, no one would seriously contend that such action would be in the national interest. To make that argument is no different than declaring the President a King. Such a suggestion is repugnant to the principles our nation was founded on. But while the former scenario is farfetched, given what Trump is charged with, the latter is an all too real possibility.
Some have condemned Justices Alito (p. 103, l. 6-8), Gorsuch (p. 135, l. 19-19; p. 138, l. 18-22), and Kavanaugh (p. 142, l. 9-14) as being more concerned about the impact their ruling would have on future cases, than the case before the Court. Justice Kavanaugh wanted to know what would prevent successive administrations from prosecuting their opponents from the previous administration. (p. 145, l. 1-4). These critics believe that the future is unknowable, while what happened on Jan. 6 is known and that prosecuting Trump for his participation in an attempted coup is critical to maintain the rule of law in our nation.
But the concerns expressed by these conservative Justices should not be so easily dismissed. Since the 1950s, Presidents have ordered (or condoned) operations by the CIA and the FBI that may have been unlawful under domestic or international law. Justice Thomas specifically mentioned Operation Mongoose, which was a clandestine effort by the CIA to topple the Castro Regime (p. 70, l. 9-14). Justice Kavanaugh brought up President Obama’s drone strikes (p. 150, l. 1-2).
Dreeben said that such concerns were unwarranted because of the principle of statutory construction that, “[I]f there is a serious constitutional question, courts will strive to construe the statute so that it does not apply to the president.” (p. 71, l. 11-14). Moreover, where the President has sought the advice of the Attorney General, it would be a due process problem for the President to be prosecuted. (p. 71, l. 15-20). Dreeben also argued that the President would be able to rely upon the public authority defense, as the Office of Legal Counsel concluded when it considered the authority of the President to kill a terrorist overseas. (p. 72; 150, l. 3-15).
Would the public authority defense have insulated President Reagan from prosecution for violating the Boland amendment if, as some argue, he permitted money the government received from Iran in the Arms for Hostages Affair to be used to support the Contras in the Iran-Contra Affair? Possibly not, since it is difficult to reconcile the principle of public authority with a statute enacted by Congress to expressly prohibit the administration from doing what it did. But the limited form of immunity suggested by Justice Barrett and the three liberal justices would have prevented Reagan from being prosecuted. Even if illegal, these operations were done for the benefit of the United States and did not threaten our democracy or involve financial gain to the President. Moreover, the fact that there may be hard cases does not mean that the Court cannot fashion a rule that is workable. As Justice Barrett demonstrated, it is not that difficult to identify conduct that is strictly personal. Consequently, it will not be difficult separating conduct that uses the office of the President for reasons unrelated to the national interest.
The best proof that this rule can work is illustrated by Sauer’s assertion that the President might be immune from prosecution for ordering the military to stage a coup. Plainly the President’s actions furthering his own political interests can be separated from conduct as President. Authorizing a drone strike on an American terrorist, something that would be considered state murder if done in the United States, cannot be separated from the office. Indeed, the President may be immune from prosecution for the killing of an American terrorist on U.S. soil. But not, as President Richard Nixon did, ordering the IRS to examine the tax returns of people on his enemies list. Or again, as Nixon did, authorize wiretaps, solely to obtain purely political or personal information including information about a Supreme Court Justice.
The conservatives’ concerns about limiting immunity come down fundamentally to intent. How do we separate an official decision from a personal decision without delving into the subjective intent of the President? After all many decisions a President makes may be made with the intent of enhancing his chances for reelection. But determining an accused’s intent is what jurors do every day. Moreover, they make that determination based on objective evidence. There is an old saying in our profession, “Even a dog knows the difference between being stumbled over and being kicked.”
Justice Barrett demonstrated that it is not difficult to separate an official act done in the national interest from the use of the instrumentalities of the office of President for reasons unrelated to the national interest. They did so with reference to what Donald Trump did in the very case before the court.
The examples cited by the conservatives where Presidents had been accused of violating the law can all be justified as being arguably in the national interest. Examples I have cited, President Nixon’s abuse of his office to command the FBI and the IRS to engage in unlawful activity are easily distinguishable.
Fundamentally, some of the Justices seem willing to accept the proposition that because some decisions made by former Presidents have been characterized as illegal, limiting immunity would negatively impact Presidents making hard choices in the future. But in none of the incidents discussed would it have been difficult for a jury to determine whether the President used the instrumentalities of his office for the good of the nation.
Justice Barrett’s opinion will reflect her belief in the resilience of the presidency to function without the need for absolute immunity and the ability of the justice system to operate effectively to determine whether a President’s conduct was or was not made for the public good.
