An Attack of Judicial Pragmatism
Given the hoopla, the most striking thing about Chief Justice John Roberts’ majority opinion in Trump v. United States is how little it decides: Neither Congress nor an overzealous prosecutor can transform a president’s use of his removal power into a crime, since the Constitution makes the decision to fire an executive-branch officer the “exclusive and preclusive” prerogative of the president. That’s it. Trump is a huge win for President Andrew Johnson, but he’s dead.
Roberts (joined by all five of the conservative justices) sent the rest of Jack Smith’s complex indictment back to the DC Circuit Court of Appeals marked, “Try again (and see me after class).” The 42-page opinion mentions lots of abstract “separation of powers principles,” but the principles are vague, and the Court declines to clearly apply them to any particular set of facts, whether actual (was President Trump entitled to immunity for organizing “alternate” electoral slates?) or hypothetical (would a president be entitled to immunity for ordering SEAL Team 6 to assassinate a rival?). The decision presents, at most, the first draft of a framework for presidential immunity that might someday be used to decide actual cases.
Though it decided so little, Trump was front-page news in every paper. President Biden called a press conference to denounce it, saying, “Any president … will now be free to ignore the law.” Most of this was misleading. Some was untrue. The legal effect of Trump v. United States has been blown far out of proportion.
On the other hand, the legal analysis in Trump v. United States is deeply troubling, because a lot of it does not appear to be grounded in, or even motivated by, the text of the Constitution.
A Bevy of Balancing Tests
Indeed, if the world received John Roberts’ opinion on immunity with alarm, outrage, and no small amount of hysteria, the Chief has only himself to blame. His majority opinion is full of amorphous gray areas into which the skeptical reader may project any number of nightmares. Roberts introduces at least three distinctions into the immunity discussion: “core official acts,” “non-core official acts,” and “unofficial acts.” These distinctions hinge on at least three crucial qualifications: “conclusive and preclusive authority,” “intrusion on the authority and functions of the Executive Branch,” and the “outer perimeter of the President’s constitutional and statutory authority.” If you don’t know how to fix the meaning of those expansive phrases, that’s okay: neither does the Court.
The majority appears to instruct lower courts to determine these qualities through vague balancing tests, but it puts a thumb on the scale: the Court insists that lower courts guard against anything that might “hamstring” the “vigor” and “energy” of the Executive Branch. There is no counterbalancing concern that the President might abuse his office to commit crimes, and there is expansive language that suggests even the smallest intrusion on executive decision-making is enough to immunize the President from a law. As a digestif, the majority rules that immune acts can’t even be used as evidence of motive or intent in investigating other, non-immune presidential crimes. That final move (from which Justice Barrett dissented) seems to make it impossible to convict a president for quid pro quo bribery, one of the things the Founders were most worried about! (Roberts resists this conclusion, but unpersuasively.)
Suppose you didn’t recognize this decision as a high-level first draft, with low-level details (like a sensible measuring stick for “intrusiveness”) to be filled in by future proceedings. Suppose, even, that you simply didn’t trust the conservative justices. You might understandably see this multi-balancing maze as a devastating blow to the rule of law. That’s certainly how conservatives saw it when the progressive justices used to impose similar balancing tests.
Indeed, somewhere in Boston, Justice Stephen Breyer is smiling down on Chief Justice Roberts right now. Breyer adored indefinite balancing tests. The interpretive method on display in Trump is a species of Breyer’s beloved “pragmatism,” not originalism. The majority performs no analysis whatsoever of the original public meaning of the Constitution’s text. Roberts and the Court’s five originalists instead rest their judgment on a series of non-originalist precedents from the 1950s through the 1980s. As Justice Sotomayor argues in a clear, unusually Scalia-esque, dissent, they might even be misconstruing those precedents.
This sudden attack of pragmatism might be because, as Justice Sotomayor further observes, an originalist decision on immunity would likely have come out the other way. The evidence about how the original Constitution addressed presidential immunity is scant and open to interpretation, but all the evidence points in the same direction: against broad criminal immunity. The most important evidence is the Constitution’s silence. The Founders knew how to write an immunity clause! State constitutions at the time sometimes gave their governors immunity, and the Constitution does give legislators some immunity in the Speech and Debate Clause. Yet the Constitution says nothing about presidential immunity.
It may well be the case, as Robert Delahunty and John Yoo recently argued, that “binding down the president with Congress’s written laws could … deprive presidents of … the unity, energy, and independence needed to take immediate action.” They conclude that, by reinforcing the checks and balances of our separation of powers, the “greater consequence” of Trump v. United States “is to protect the liberty of us all.” From the majority’s language, it seems probable that they were motivated by similar ideas.
Personally, I’m skeptical. The idea that, in 2024 America, the greatest threat to the Constitution’s separation of powers comes from some kind of “imperial Congress” would be like Taiwan declaring that its number-one security priority is stopping the military ambitions of Albania. However, even if Delahunty, Yoo, and the conservative justices are right (they usually are), the Constitution doesn’t say that! They are free to campaign for a constitutional amendment creating presidential criminal immunity. They are not free to create it from whole cloth.
Some Textual Basis
As Justice Amy Barrett argues in a brief concurrence, however, the Court is not inventing this doctrine from whole cloth. The Constitution’s text demands some level of presidential immunity. Barrett argues that the textual core of the immunity doctrine is not the majority’s pragmatic concern for the “vigor” of the executive, but rather the brute fact that the Constitution invests the president with certain powers. Take the veto, for example. Article I, Section 7 empowers the president to veto legislation for any reason. Now suppose Congress passed a law that said, “Anyone who vetoes legislation shall be guilty of a felony.” If this law were given effect, it would turn the president’s constitutional veto into a dead letter—“surplusage,” in legal argot. In fact, large portions of the Constitution would be rendered impotent, because this law would mean that Congress can destroy or amend any of the president’s powers at will. As the old legal axiom verba aliquid operari debent tells us, words ought to accomplish something. Any interpretation of the Constitution that reassigns all (or any) exclusively presidential powers to the pleasure of Congress is presumptively wrong.
Now extend this principle. Can Congress criminalize the president’s veto of one specific bill? No; that would re-assign part of the president’s veto power to Congress. Can Congress charge the president with “obstruction of the will of Congress,” a so-called “generally applicable” crime they’ve come up with that just so happens to make some presidential vetoes illegal? No; that would re-assign part of the president’s veto power to Congress. Can Congress outlaw vetoing bills for “corrupt” reasons? “Woke” reasons? “MAGA” reasons? No, no, no. In 1929’s Pocket Veto Case, the Court explained that power “conferred on the president cannot be narrowed or cut down by Congress … directly or indirectly.” Since Congress cannot amend the Constitution by itself, any law that purports to alter powers that the Constitution assigned to the president is unconstitutional when applied to a president. The president is thus “immune” to all such laws, whether they are “generally applicable” or specifically targeted at the presidency. The president has many such powers. Whenever someone charges a president with any crime, the crime needs to be analyzed to make sure that its conduct does not fall within the zone the Constitution assigns exclusively to the President.
The Supreme Court’s majority opinion failed to adhere closely to our highest law, the Constitution, but its failure can only be understood within the entire, sordid context in which it had to rule.
This logic seems inescapable, and renders the court’s only concrete holding (Congress cannot criminalize the president’s use of his own officer-removal power) clearly correct. It should have been the core of the majority opinion. Instead, it was given sharply abbreviated treatment in an overlooked concurrence that controlled nothing, while Chief Roberts went wide, vague, and atextual.
The Wages of Sin
Even for its harshest critics, Trump v. United States makes the “imperial presidency” only marginally more unaccountable than it already is. Suppose, for example, that President Frank Underwood ordered SEAL Team 6 to assassinate rival Dwayne Camacho. If Trump v. US’s balancing tests are all interpreted maximally, and the commander-in-chief power is held to include the authority to identify citizens of the United States as military targets without a Congressional declaration of war, a court might indeed hold the president immune to prosecution for the murder. However, as Andy Grewal of the University of Iowa writes in a smart paper defending presidential immunity, this is a crazy thing to worry about. If the president has reached the point of assassinating political rivals, concern about the possibility of being criminally charged after leaving office is not going to deter him … not least because such a president could also assassinate all the judges who might convict. If he fears trial anyway, he can simply pardon SEAL Team 6 and resign the day before his term ends, with the understanding that his vice president will pardon him, too.
In short, it is already impossible under our present system to hold an assassin president accountable. “One may as well ask,” Grewal observes, “who constitutionally succeeds to the presidency after an extinction-level asteroid strike.” The pundits who nevertheless incited hysteria over the “SEAL Team 6” hypothetical placed politics in front of the rule of law.
They weren’t the only ones. No one in this episode of presidential history comes out smelling of roses. One can reasonably draw an inference that the Roberts majority (Barrett excepted) felt it more important to shut down the ongoing “lawfare” against Trump than to stick close to the original meaning of the Constitution’s text. Insofar as the justices did so, the rule of law suffered. (Nor is this the first time this Court has done that this year.) Yet if we interpret the Roberts opinion as a partisan exercise, surely the same applies to the DC Circuit decision the Supreme Court was reviewing. That court held (implausibly) that Congress could freely curtail presidential powers by passing “generally applicable” legislation, a supposed rule of law that it’s hard to see the DC Circuit applying to anyone but Trump. (Nobody talks about bringing fraud charges against Barack Obama for his unconstitutional war or his lawless employer-mandate suspension.)
The DC Circuit, in its turn, seemed awfully accommodating toward prosecutor Jack Smith. Smith tried to transform fraud statutes into a kind of stealth-bomber insurrection charge. He tried to rush the prosecution for these complex, untested charges (against a former president, no less), even after the Department of Justice had left the matter to languish for nearly two years … only to revive it once Trump returned as a political rival to President Biden. Are these the actions of a prosecution motivated by reverence for the rule of law?
None of that would have mattered, however, if the US Senate—which is primarily responsible for holding presidents accountable when they abuse their powers—had convicted Trump in his second impeachment trial. Instead of defending the rule of law, however, the impeachment failed along partisan lines.
At last, we reach President Trump himself, who attempted to remain in office beyond the end of his term. One could hardly call that reverence for the rule of law. Everything else followed from this. Failing to redress Trump’s actions on January 6 would set a corrosive precedent for the rule of law in future elections. On the other hand, by the time Jack Smith got hired, there was no reliable way to redress Trump’s role without cutting legal corners, which also undermines the rule of law. Facing only bad legal choices, more than one legal actor took the option that helped their political team. The Supreme Court’s majority opinion failed to adhere closely to our highest law, the Constitution, but its failure can only be understood within the entire, sordid context in which it had to rule.
A fine essay by Richard Samuelson, recently in these pages, asked, “Can the Republic Survive Corrupt Presidents?” What his analysis missed is the way a single act of corruption can poison the whole system. This single prosecution and the actions that prompted it have swept the Department of Justice, the DC Circuit, the Supreme Court, news media, and Congress into a swirl of decisions where enforcing American law was a distant second priority. Every single one of them behaved badly, and half the country knows it. (The other half makes excuses for the institutions on “their side.”) All these institutions, crucial to checking the president, are now diminished.
“The wages of sin is death,” says the Bible. Trump v. United States is not the end of the Republic. Indeed, deciding so little, it hardly matters. Yet a series of crucial legal institutions on all “sides” sinned against the law for the sake of some urgent-seeming political needs. Eventually, that is the kind of sin that kills republics.
This article first appeared in Law & Liberty on July 23, 2024
