Writing "For the Ages," Judicial Estoppel, and Trump v. United States

Mark Tushnet

So, we’re supposed to think that the Supreme Court’s decision in Trump v. United States will be one “for the ages,” as Justice Gorsuch pompously said. That self-inflated statement reflects a view of precedent that’s at best naïve, and probably worse: silly. Should another case involving a claim of presidential immunity from criminal liability come up in the future, the first question (about precedent) that justices in the future will ask themselves is, “Is there a principled way to distinguish this case from Trump?” If the justices are minimally good at doing law, the answer will inevitably be, “Yes.” The second question, then, will be, “Should I rely on that distinction?” That’s a decision the future justice will have to decide for herself (or, in the event the case comes up soon, that Justice Gorsuch would have to decide for himself). Nothing in the Trump decision can possibly help answer that question. So, “the ages” means—“until the next time we have to face the question.” 

That understanding of precedent—for me, the only sensible one—means that judges shouldn’t (to repeat myself) pompously inflate their sense of how important they are. And, notably, there’s a quite deflationary way out of the Trump case that—probably because they all have a pompously self-inflated sense of their importance—none of the justices seemed interested in exploring. 

There’s a relatively obscure and rarely invoked doctrine known as judicial estoppel (or, sometimes, estoppel by prior position). The Court put it this way: When a party “assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The Trump case seems to me a good candidate for invoking the doctrine, and doing so would have almost no implications for how presidents (as potential defendants and potential chief law enforcement officers) could behave in the future (subject to my opening comment about precedent). 

In his second impeachment trial, through his lawyers Trump asserted that one ground for acquittal was that he was subject to potential criminal liability after he left office. And, although we can’t know why everyone who voted to acquit him did so, at least one Senator explained his vote by invoking Trump’s potential criminal liability. Those look like facts that could plausibly trigger the doctrine of judicial estoppel. (It’s irrelevant that the lawyer who represented Trump at the impeachment trial and made this argument on his behalf is different from the one who represented him in the Supreme Court. It’s the party, not the lawyer, who matters.) 

Of course invoking the doctrine wouldn’t be as simple as repeating the quote I’ve given. You’d have to explain why an impeachment trial is sufficiently similar to a criminal trial or other judicial proceeding to trigger the doctrine and you might want to worry a bit about whether the doctrine would apply when the initial proceeding was before an administrative agency. And you’d probably have to explain why the current charges against Trump are sufficiently similar to those in the impeachment trial to trigger the doctrine. Neither explanation would, I think, take more than a paragraph (impeachment trials are formally quite a bit like trials in the ordinary courts, and my guess is that you can probably find a case or two invoking judicial estoppel in connection with administrative proceedings; the charged actions are sufficiently similar that Trump’s incentives to assert defenses are equivalently strong). A little trickier, as I’ve noted, would be showing that Trump “succeeded in maintaining the position” that he was subject to subsequent prosecution. There’s enough precedent to support the proposition that statements by individual members of a multimember body can be attributed to the body itself (most recently, in Masterpiece Cakeshop). And, the problem is going to come up so rarely that worrying about pinning down every possible variation is—again given a sensible view of precedent—not worth the time. 

A couple of mopping up details: I assume that judicial estoppel isn’t fairly encompassed within the question presented—but respondents are entitled to rely on any available argument to support the judgment under review (the “fairly encompassed” rule applies to petitioners/appellants). And there’s a paper rattling around by Margaret Lemos and Deborah Widiss pointing out that many members of the current Supreme Court have criticized the government for changing its position, sometimes but not always because of a change in administrations. Lemos and Widiss explain that there are sometimes good institutional reasons for such changed positions—but, notably, the institutional reasons aren’t available when an individual litigant changes his or her position. 

So, to go back to the beginning: Why hasn’t anyone paid attention to the availability of the judicial estoppel argument? I’m not saying that the argument’s a slam-dunk—just that it could be invoked in ways that wouldn’t open up the larger issues that the justices seemed preoccupied with at the oral argument. 

But, I suppose, that’s precisely the point. They—and, unfortunately, maybe we—think that they’re supposed to opine on deep questions about government structure given any chance to do so. You don’t have to be as skeptical as I am about the contributions the Supreme Court makes to good governance to think that that belief is misplaced in Trump v. United States.