A few preliminary reactions to the oral argument in Trump v. United States

Marty Lederman

I might write further about Thursday's oral argument when I get a bit more free time (end-of-semester obligations and all!), but I thought that in the meantime it might be worth noting a few things in fairly summary fashion while they're still fresh.

As Jack Goldsmith noted the other day, and as I explain further in my amicus brief, there are actually three different sorts of questions before the Court--the "immunity from prosecution" question described in the Question Presented, and another two questions that former President Trump included in his merits brief although he hadn't raised them below, each of which concerns whether Trump was even bound by the prohibitions in the three statutes at issue here, entirely apart from any question of immunity from prosecution.  The Justices asked questions bearing on all three of these issues at oral argument.  I'll address them in turn.  

Spoiler alert:  It appears that what's of most concern to the Justices isn't really any question of immunity from criminal prosecution but instead whether the substantive criminal statutes here might raise serious constitutional questions when applied to applied to certain types of official presidential conduct that aren't present in the Trump case.  I discuss that issue in the third section below. 

The Question Presented, which the Court itself crafted, is “[w]hether and if so to what extent … a former President enjoy[s] presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”  That immunity question, like most immunity questions (think, for example, of cases involving sovereign immunity; qualified immunity; or Nixon v. Fitzgerald immunity), is whether a particular method of enforcement in court is available in a case where the defendant is alleged to have violated a valid law.  Here, then, the question is whether the Constitution precludes the executive branch itself from prosecuting a former President for acting in his official capacity to violate presumptively valid statutory constraints.  In deciding such immunity questions, the Court assumes that the statute in question does validly bind the defendant and that he violated it--just as it did in Fitzgerald, and just as it does in qualified immunity cases.  In all such cases, there's no serious dispute that the defendant is bound by the underlying law; the only question is whether those laws can be enforced in a particular manner.  

The immunity-from-prosecution question is, naturally, the one the parties and virtually all of the amici principally discuss in their briefs.  I address a couple of otherwise-underemphasized aspects of it at pages 8-10 of my amicus brief.

Although several of the Justices expressed concerns at oral argument about the prospects of criminal prosecution of future former Presidents under at least some circumstances, I'll be surprised if the Court holds that the Constitution prohibits such prosecution even in cases where (as alleged here) the President violated a statute that is valid as applied to the President's official conduct.  In sharp contrast with Nixon v. Fitzgerald, conferring immunity-from-prosecution in such a case would contravene the judgments of both political branches, and there's nothing in constitutional text, history or caselaw that requires a repudiation of that joint political-branch assessment.

II.  Application of the Criminal Statutes to Official Presidential Conduct

In Part II of his brief, however, Trump argues that the pertinent statutory prohibitions alleged in the indictment here did not limit his official-capacity conduct in the first instance, wholly apart from any question of criminal prosecution, because federal statutes should be construed not to regulate the President unless Congress has included a "clear statement" of presidential coverage.  Trump hasn't made that argument in the lower courts and it isn't included in the QP, but the Government suggested at oral argument that the Court can address it on this appeal if it wishes to do so.  Justice Kavanaugh appeared to be the Justice who was most interested in this "clear statement" question of statutory interpretation.

It's important to understand the nature of Trump's newly-interjected "clear statement" argument.  He doesn't dispute that the laws he's alleged to have violated, which describe malum in se offenses, prohibit other federal actors from abusing their official authority.  Yet he argues that they must be construed to contain an implied exception for the President alone—indeed, an exception only for the President's official conduct, but not for that officer's private-capacity conduct.  If that were so, then every President would be free—at least insofar as federal statutes are concerned—to conspire to use the formidable powers of the office to defraud the United States, including with respect to its determination of who is lawfully entitled to be President; to attempt to corruptly obstruct, influence and impede official proceedings—even to alter, destroy or conceal documents in order to deny their use in an official proceeding, see 18 U.S.C. § 1512(c)(1); and to conspire to deny individuals’ constitutional rights. 

I devote Part II of my brief to this issue.  The upshot is that there's no such clear-statement canon of statutory construction.  I'd be surprised if any of the Justices conclude otherwise.  I won't belabor the arguments here, but they include:

i.  The holdings of the principal cases Trump cites for the "clear statement" rule, especially Franklin v. Massachusetts, are far more limited, and more statute-specific, than Trump suggests.  Moreover, at least three important precedents--United States v. Burr (per Chief Justice Marshall, sitting as Circuit Justice); the Nixon tapes case; and Nixon v. Fitzgerald itself--demonstrate that there's no such canon, let alone that applies to malum in se criminal statutes.

ii.  The OLC opinions Trump relies upon are far more equivocal and complicated than Trump implies.  They certainly don't conclude that the President isn't covered by malum in se statutes such as those at issue here.  In truth, they're best understood to stand for this far-more-modest proposition, which appears in the 1995 OLC opinion on which Trump places the most weight:  “[A] statute that does not by its express terms apply to the President may not be applied to the President if doing so would raise a serious question under the separation of powers.”  At most, that's a variation on the familiar "constitutional avoidance" canon--a canon that, as I explain at pages 26-27 of my brief, doesn't apply here--that applies to preclude certain applications of a statute.

iii.  Congress has demonstrated that when it wishes to exempt the President, or certain presidentially approved actions, from a broadly applicable prohibitory statute, it knows how to do so.  See the examples I cite at pages 22-23 of my brief.

iv.  Most importantly, Trump's proposed “clear statement” rule would have radical ramifications across the U.S. Code, particularly as applied to many other federal statutes that broadly prohibit conduct “intended to prevent injury and wrong” (Nardone).  

For starters, it would mean that in the historical instance closest to the official-conduct allegations in the Trump indictment--President Nixon’s plot with his Chief of Staff H.R. Haldeman, captured on the infamous “smoking gun” recording of June 23, 1973, to implore the CIA Deputy Director to make false claims to the FBI in order to derail its Watergate investigation--Nixon acted lawfully in directing Haldeman to do something for which Haldeman himself was duly convicted under one of the statutes at issue in the Trump case, 18 U.S.C. § 371.  No one at the time--or since--has suggested that Nixon's official-capacity conduct in that instance wasn't a criminal violation, because of course it was.

In addition, as I write in my brief, if Trump were right that Presidents aren't bound by criminal statutes that don't refer to the President--i.e., almost the entire criminal code--then a President would not be prohibited by statute from perjuring himself under oath about official matters; from corruptly altering, destroying or concealing documents to prevent them from being used in an official proceeding; from suborning others to commit perjury; from bribing witnesses or public officials; from threatening witnesses; from polling members of the armed forces about their confidential electoral votes; from attempting to intimidate, threaten, command, or coerce other federal employees to vote (or not to vote) for particular candidates or to engage in (or refrain from) other political activities, including making campaign contributions; from committing war crimes, genocide, or torture; from stockpiling or selling biological weapons; from using child soldiers; or from commanding other officials, who concededly are subject to such laws, to violate them.  Nor would the treason statute apply to a President who, to take Justice Kagan's vivid hypo, sells nuclear secrets to an enemy nation.  As Justice Jackson noted at the end of the argument, the list "goes on and on and on ...." 

There's no imaginable reason Congress would have wished to exclude the President from the constraints of such laws, even—or especially—when the President does so by misusing Article II authority to supervise the executive branch. 

v.  The language of the statutes can't bear such a construction.  Recall that Trump concedes not only that the statutes in question apply to all other officials' abuse of office, but also that they apply to a President’s personal-capacity conduct.  There's simply no way to construe any terms of these statutes to exempt only the President's official-capacity conduct.

vi.  Finally, as one of Justice Barrett's questions emphasized (Tr. 55-56), under Trump's construction of the statutes he couldn't even be tried for violating them after the Senate convicted him of the same conduct, because the statutes simply didn't constrain his conduct in the first place.  That's not only absurd, but also in serious tension with Trump's own argument in this case that a prosecution may occur after a Senate conviction for the same conduct.

For all of these reasons, I'd also be surprised if any Justices conclude that the statutes cited in the indictment don't regulate a President's abuse of office.

III.  The Constitutionality of the Statutes as Applied to Certain Categories of Official Presidential Conduct

Trump also suggests in Part II of his brief--for the first time in the litigation--that even if the cited statutes do generally regulate the President's official-capacity conduct, they're unconstitutional as applied to at least some subset of that conduct, including with respect to his own official-capacity actions alleged in the indictment.

The parties didn't brief this question in much detail.  But I devoted the final three pages of my brief to it.  And it appears to be the crux of the concerns expressed by several Justices on Thursday, particularly in light of the open-ended nature of some of the statutes Trump is alleged to have violated--conspiring to “defraud the United States,” 18 U.S.C. § 371, and conspiring and attempting to "corruptly obstruct[], influence[], or impede[] any official proceeding,” id. §§ 1512(c)(2).  (If you want to get a good sense of how the current Court is inclined to narrowly construe such statutes, just listen to the oral arguments last week in Snyder and Fischer.)

There don't appear to be any Justices inclined to say that the statutes raise serious constitutional questions as applied to the official-capacity conduct alleged in the Trump indictment itself.  Yet the Justices clearly are considering whether the Court should decide, or at least signal, that certain other applications of the statutes to a former President would at a minimum raise serious constitutional questions.  Two different sorts of cases are of particular concern, if the oral argument is any guide.  

The first is a hypothetical case in which DOJ charges a former President with having violated the statutes in the exercise of certain "core" Article II functions that Congress (arguably) cannot regulate by statute.  These might include, for example, the power to veto and sign legislation; the pardon power; the power to appoint principal officers subject to the Senate’s advice and consent; and the power to recognize a foreign government.  The Chief Justice offered the additional example (page 6 of the transcript) of a President appointing someone to an ambassadorial post in exchange for a bribe.  

The Trump indictment’s allegations of official-capacity conduct (a very small percentage of the indictment) do not raise any such issues.  (Trump alleges that the exercise of his removal and appointment authorities is charged in the indictment, but that's not right:  As Michael Dreeben explained (Tr. 125-127), the indictment alleges only that Trump threatened to remove the Acting Attorney General and Deputy Attorney General as a way of coercing them to violate the law.)  In my brief, I urge the Court not to opine unnecessarily about such novel and difficult questions (and, in particular, not to opine on which Article II functions are categorically indefeasible by statute) unless and until they're presented in the context of a concrete application of a statute to prosecute a former President for, e.g., vetoing or signing legislation, issuing a pardon, appointing or removing a principal officer, etc.—something DOJ is unlikely to even contemplate absent truly extraordinary, unforeseeable circumstances.  It ought to be sufficient for the Court in this case simply to flag that such a hypothetical prosecution would raise novel and potentially serious constitutional questions.

The second category of cases that are of evident concern to some Justices involve instances in which a former President might be accused of having lied to Congress.  Justice Kavanaugh, in particular, worried (Tr. 147) that "it's very easy to characterize presidential actions as false or misleading under vague statutes."  In his reply brief, for example, Trump argues that "President Bush’s alleged provision of false information to Congress to induce war in Iraq plainly constitutes 'defrauding the United States' under 18 U.S.C. § 371 and 'obstruction of an official proceeding' under 18 U.S.C. § 1512(c)(2)."  (See also pages 83 and 98 of the transcript, where Justices Kavanaugh and Alito express concerns about the possible breadth of section 371.)

For what it's worth, I think it's virtually inconceivable DOJ would ever prosecute a former President in such cases, at least absent extremely compelling evidence that the President deliberately perjured himself (or ordered someone else to do so) by conveying information to Congress that the President knew was false (a hypothetical case that wouldn't raise any constitutional concerns).  But to the extent a majority of the Court is concerned about the prospect of such prosecutions, it can say so in its opinion.  Such concerns, however, shouldn't require any elaborate inquiry in this case, because the allegations against Trump don't raise any such constitutional questions.  As I explain in my brief, the only parts of the indictment that plainly implicate any question of official presidential conduct--the paragraphs involving Trump's attempted “direction” of top DOJ officials to falsely allege that there was evidence of election irregularities that would warrant corrective action by state officials to challenge elector certifications--don't come anywhere close to a situation that implicates a serious constitutional question, for two reasons:

First, those portions of the indictment allege an effort by Trump to induce DOJ officials to engage in conduct that unquestionably would itself have been an abuse of their authorities (and probably unlawful)--akin to what Nixon did with Haldeman and the CIA--and the Constitution clearly doesn't empower the President to direct other executive branch officials to knowingly violate their oaths and the law in that way.

Second, and of particular importance, the alleged object of Trump's attempt to exploit DOJ was something that would itself have been fraudulent and unlawful and in the service of an entirely personal end—namely, the counting of illegitimate electoral votes and the (knowingly) false certification of Trump as President-elect.  The point here is not that Trump was merely motivated by a desire to be re-elected--something that, as Justice Gorsuch emphasized (Tr. 132, 136), characterizes many presidential actions that are perfectly lawful.  Rather, what makes this the easy case from a constitutional perspective is that the the conspiracy was specifically designed to secure re-"election" by fraudulently manipulating the very mechanisms of electoral decision-making themselves.  If the allegations in the indictment are true, Trump and his co-conspirators endeavored to have other Government actors (i.e., the President of the Senate and the two Houses of Congress sitting in Joint Session on January 6, 2021) formally determine that Trump had received more than 269 electoral votes and to declare that Trump therefore “shall be the President,” Amend. XII, even though Trump knew such a declaration would be improper. 

At least where, as here, the allegations of official-capacity misconduct partake of both of these characteristics, there's nothing at all constitutionally problematic about efforts to enforce the charged statutes, once the President leaves office, in order to punish and deter such an abuse of the President’s authority.  That is to say, “there is no serious doubt about the constitutionality of [the statutes] as applied to the facts of this case.”  Salinas v. United States, 522 U.S. 52, 60 (1997).  The Court could simply say as much, even if its opinion were also to establish some guidelines about how courts should consider as-applied Article II questions in other, future presidential prosecutions where serious constitutional questions are raised.

* * * *

Finally, a quick thought on the official-capacity/personal-capacity distinction that consumed a good portion of the oral argument:

If, as I suggest above, the Court does not hold that a former President has immunity from prosecution for any unlawful official-capacity conduct, and if the Court further holds, as it should, that the statutes here regulate such official conduct and are constitutional as applied to the factual allegations in this case, then there'll be no need for any court to resolve which of the actions described in the indictment Trump took in his official capacity rather than in his personal capacity (including in his capacity as candidate for office).

But if, for some reason, that distinction remains relevant in this case, it's noteworthy that Trump's counsel conceded, for the first time in the litigation, and in answers to questions from Justices Barrett and Kagan (see, e.g., Tr. 29-30, 36), that at least some of the alleged acts would be personal-capacity conduct.  And all the parties likewise agree that the handful of paragraphs in the indictment about Trump's effort to misuse the Department of Justice describe official-capacity conduct.  Furthermore, Michael Dreeben indicated that DOJ agrees with me that most or all of the rest of the indictment describes personal-capacity conduct, except that DOJ "has not yet come to grips" on how best to characterize Trump's communications with Vice President Pence with respect to the latter's role as President of the Senate (Tr. 128).

Accordingly, in the unlikely event the personal-v.-official-capacity question remains relevant to any outstanding issues, adjudication of that distinction can likely be focused upon the Trump-Pence communications.