I benefited from last week's Trump v. United States debate, a thoughtful commentary on the presidential immunity case (in addition to posts on this blog, see posts by Jack Goldsmith, Marty Lederman, etc.) please).
Additionally, I wanted to share with you the following additional thoughts from George Mason Professor Robert Ryder, an expert on both constitutional law and criminal law. I thought this would be interesting to my readers.
Sources of presidential privilege
On Thursday, the Supreme Court heard arguments in the following cases: trump vs usa, concerning whether the president has criminal “immunity” for official acts while in office. Some of the arguments seemed complicated. For example, Trump's lawyers argued that prosecutors can prosecute private acts but not official acts. Therefore, if the president accepted a bribe to appoint an ambassador, prosecutors could prosecute for the bribe (which the president declared a private act), but the appointment would not be classified as an official act. In his view, official acts can only be subject to criminal charges if there is first impeachment and conviction, followed by prosecution under criminal law that explicitly refers to the president.
The court struggled with these arguments and many others. I believe that this struggle has arisen primarily because the term “immunity” is not appropriate in cases where the president may not be prosecuted. In this post, I would like to state what I think are the exceptions to when presidents can be prosecuted in the same way as private citizens. This post includes the caveat that this is not my usual field of study, and I am not very confident that what I have said here is complete and correct. But at least I think it's a better starting point than the umbrella term “immunity.”
- Immunity from personal jurisdiction. Of his four “exceptions” that I described in this blog post, this is the only true “immunity.” The president cannot be prosecuted while in office. The Office of the General Counsel has long advocated this position.
The sources of this immunity are historical and structural. Historically, immunity from personal jurisdiction can be seen as a remnant of the sovereign immunity held by the Crown. In England, the maxim “The king can do no wrong'' reflected the incompatibility between royal sovereignty and obedience to legal process. As a result, Britain recognized the Crown as having complete immunity from all crimes and torts (although wronged subjects could recover in torts from lower judges who did not have such immunity). or may be restored by petitioning the Crown for voluntary relief). Because the king held office for life, it was impossible for him to obtain jurisdiction over the incumbent.
Portions of this disclaimer are incompatible with our nation's government structure. Our Framers envisioned a republican form of government with a chief executive under the rule of law. The Constitution's impeachment clause provides that the president may be impeached and removed from office, and that the person removed from office “shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law.” This suggests that Additionally, our president's term is his four years, so most presidents end up returning to their private lives.
Nevertheless, royal-like sovereign immunity from criminal prosecution against the president While in office It is compatible with, and perhaps even necessary, a Republican government. This brings me to my structural argument. The president is the chief executive officer and therefore he is responsible for the enforcement of the law. Allowing federal prosecutors to prosecute him would effectively authorize an executive officer with greater enforcement powers than the president. And allowing state prosecutors to bring criminal charges against the president would allow local officials (outside the oversight of federal executive authorities) to harass the president of the United States, raising issues with the Supremacy Clause. . It would therefore be plausible to recognize that the President retains the traditional immunity from criminal jurisdiction that the Crown had prior to separation from the United Kingdom. However, this immunity is merely an immunity from personal jurisdiction and does not survive the expiration of the president's term.
- Substantive criminal law that violates the separation of powers. There are certain laws that Congress cannot effectively enact because they are prohibited by the Constitution. Congress cannot make it a crime for the president to appoint ambassadors or command the military because the Constitution explicitly grants these powers to the president.
In general, I consider this to be a thin category. Even though Congress cannot abolish or usurp the constitutionally granted executive powers of the president, it may still regulate them under necessary and proper provisions. This clause, in addition to giving Congress incidental powers to carry out the enumerated powers, also empowers Congress.[t]o Enact all laws necessary and appropriate for enforcement. . . “All other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.'' Thus, the power to make subsidiary laws extends to the executive branch. Under this authority, Congress can prescribe the forms of pardons and appointments and prohibit the president from accepting bribes in exchange for these executive actions, but Congress cannot appoint specific individuals to the president or , cannot direct him to be punished for exercising his pardon power. This immunity likely reflects the scope of inherent and exclusive presidential power, the third category with which Justice Jackson concurred. Steel seizure case.
Unlike immunity from personal jurisdiction, this is not a true “immunity” from criminal prosecution. The president who offers this defense is simply arguing that the law is constitutionally inapplicable to him. This is a substantial legal defense based on the constitutional separation of powers.
Understanding this way is superior to efforts to separate “private” and “public” actions. The difficulty of the latter approach was reflected when Trump's lawyers were asked how prosecutors could prosecute bribery for appointments. He responded that while bribery is a private act, appointment is a public act, and prosecutors can allege bribery but not appointments. Dividing public and private actions in this way is very hollow. Bribery to obtain public office is, in its entirety, a public act. This is a corrupt public act, but a public act nonetheless. A better approach is to recognize that Congress can regulate the presidency, so long as the regulation does not infringe on executive power. Of course, difficult questions remain in the margins.
- Federal supremacy over state law. His third limitation on presidential prosecution comes from the supremacy clause. If a president acts lawfully under federal law, state governments cannot prosecute former presidents in the performance of their official duties.
This immunity is broader than the Congressional immunity. The President is exempt from acts of Congress only to the extent that he has unique and unique powers. In Hohfeldian terms, if the president wants to go beyond the bounds of federal criminal law, it must be because Congress has an obligation to authorize the president to take certain actions (or, correlatively, the president must (have the right to act as such). In contrast, the president can claim supremacy over state law when acting lawfully within his own discretion. In Hohfeldian terms, if the president has the freedom to administer federal law in a particular way, states cannot criminalize it under the Supremacy Clause.
- Government authorities legalize (“If the president does it, it's not a crime.'') In some cases, government officials, acting under the authority of the law, may do things that private citizens cannot do. Even if private citizens are unable to maintain a pension system where assets are taken to pay for business operations, the president can control Social Security and pay for government spending from a trust fund.Defense of “public authority” brought up at the conference playing cards Oral argument also falls into this category. Government officials (and to a lesser extent civilians) use force to protect the public interest, such as using deadly force during a lawful war effort or to prevent a coercive felony. have the common law authority to do so.
This category does not include immunity at all. This is simply the argument that acting in accordance with governmental authority makes an action legal. For example, Congress has authorized the executive branch to raid the Social Security Trust Fund. In some cases (such as public power defenses), the common law recognizes special affirmative defenses against the exerciser of public power. The president may exercise this common law power unless Congress validly repeals it. So the argument here is one of legality.
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Finally, I would like to conclude by saying a few things about the scope of criminal law. Many of the difficult constitutional issues revealed during oral arguments are the result of the Supreme Court turning a blind eye to the broad and ambiguous criminal law that is the backbone of today's federal criminal law. As Justice Alito pointed out during his argument, fraud traditionally involved obtaining property under false pretenses. Currently, federal criminal law punishes all “fraud” that interferes with government operations. Perhaps, for example, the president (or his subordinate staff) could be charged with a crime for recklessly providing Congress with bad information about another country that caused Congress to authorize the use of force. The result of these unduly broad laws is that they allow federal prosecutors to extend criminal law to ethics rules involving felonies.
In this context, federal criminal law has become too focused on motive rather than conduct. Traditionally, criminal law polices acts that combine scientific and criminal acts, such as intentionally killing someone. In the past, the law was mostly vague about the defendant's motive for committing the act, that is, why the defendant killed the person (e.g., because the defendant didn't like the person, or because the defendant refused to pay a debt). from). Recently, criminal law has increasingly focused on police motives, and the same act can be criminal or legal depending on the actor's motives. So some argue that President Trump's payments to Stormy Daniels are an election crime if he was motivated to win the election, but legal if he wants to save his marriage. Similarly, it would be a crime if the president ordered the FBI not to investigate underage participants in the January 6 riot to protect his political base, but if the president believes that Some may argue that it is legal to issue the same order to Refusing to prosecute some trespassers will help the country heal politically.
This is a dangerous turn in criminal law in general, and the use of these statutes as a weapon against the executive branch will further exacerbate interbranch conflicts. Controlling this problem does not require giving the president “immunities” that have little constitutional basis. The Supreme Court needs to pay more attention to substantive developments in federal criminal law and rein in its excesses. The rule of law requires everyone, not just a privileged few in high political positions, to curb these excesses.
