As I have done in past years, I am publishing the discussion questions for the annual casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for Trump v. United States.
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Discussion
1.
Poor Richard (Nixon). In August 1974,
Richard Nixon resigned from the presidency after the release of a tape
recording of a conversation in the Oval Office. In this conversation, Nixon
directed his chief of staff, H.R. Haldeman, to order the CIA to tell the FBI
not to pursue an investigation of the break-in at the Democratic National
Committee headquarters in the Watergate building. This famous “smoking gun”
tape recording was deemed conclusive proof that Nixon had engaged in
obstruction of justice. It was widely assumed that the “smoking gun” tape
recording of Nixon’s conversations with a close subordinate could and would be
introduced in evidence both at an impeachment trial and a subsequent
prosecution to show Nixon’s corrupt motives. Nixon, believing that impeachment
and removal was a foregone conclusion, resigned.
A
month later, on September 8th, 1974, Gerald Ford pardoned Nixon “for
all crimes he committed or may have committed or taken part in” while
President. Ford’s reasoning was that “Richard Nixon has become liable to
possible indictment and trial for offenses against the United States. … It is
believed that a trial of Richard Nixon, if it became necessary, could not fairly
begin until a year or more has elapsed. In the meantime, the tranquility to
which this nation has been restored by the events of recent weeks could be
irreparably lost by the prospects of bringing to trial a former President of
the United States.”
Nixon’s
decision to resign and Ford’s decision to pardon (which many suspect cost him
the 1976 election) suggests that there was a widespread understanding that a
former President was not immune from criminal indictment, trial, and
punishment, and that the tape recording was admissible as evidence of Nixon’s
motives. Indeed, the central holding of the Nixon tapes case, U.S. v. Nixon, was that the special
prosecutor had a right to obtain this evidence for use in a criminal
prosecution.
As you read the majority opinion in Trump v. United States, would Nixon have been immune from criminal prosecution, although neither he nor anybody else realized it at the time? Moreover, according to the majority opinion, was the famous “smoking gun” tape recording showing Nixon’s motives inadmissible in a criminal prosecution of the former president?
2.
The Constitution’s text and original
meaning. The majority’s basic holding of absolute immunity; its three-part
division between core powers, official actions outside of core powers, and
unofficial actions; and its ban on inquiries into presidential motives, have no
basis in the constitutional text. Quite the contrary, the Impeachment Clause of
Article I, section 3, appears to contemplate that the President will be subject
to criminal prosecution: “Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.” Nor is there evidence that the
founding generation believed that former presidents were subject to immunity
for crimes committed during their presidency. The evidence suggests only that
some framers believed that presidents could not be indicted while still in
office, which is the position of the Justice Department today. Instead, Chief
Justice Roberts’ opinion relies primarily on the 1982 5-4 decision in Nixon v.
Fitzgerald, 457 U.S. 731 (1982), a Burger Court decision that also was not
based on the original meaning of the text and that did not reach the question
of criminal immunity.
Two
years previously, in Dobbs v. Jackson Women’s Health Organization, Justice
Alito excoriated the decision in Roe v. Wade for being “egregiously wrong and
deeply damaging.” He explained: “The weaknesses in Roe's reasoning are well-known. Without any grounding in the
constitutional text, history, or precedent, it imposed on the entire country a detailed
set of rules much like those that one might expect to find in a statute or
regulation.” Why do you think that the Justices who joined Dobbs, and especially the originalist Justices, saw matters
differently here, and joined the decision in Trump v. United States?
3.
Arguments from tradition. Another
possible justification for the result in Trump v. United States might be
tradition, which can gloss or clarify the constitutional text. However, before
the Watergate Scandal, there were no criminal prosecutions of former
presidents, and, as noted before, from the founding to at least the time of the
Watergate Scandal, the assumption was that a former president was subject to
criminal prosecution after he left office. Should the Court have treated the Watergate
Scandal and the Nixon pardon as evidencing a tradition dating back to the
founding that presidents were not immune from criminal prosecution?
4.
Arguments from structure. The
strongest arguments for presidential immunity would be structural arguments
based on the separation of powers. Chief Justice Roberts argued that presidents
would be afraid to make difficult decisions in the public interest if they were
subject to later criminal prosecution once they left office. But absolute
immunity is not necessary to protect against this possibility. Instead, the
Court might have simply argued that federal criminal statutes should be
interpreted subject to a public-authority exception, or an
advice-of-the-Attorney-General defense. And in order to spare the President the
expense and difficulty of a full trial, the Court could have held that
Presidents had a right of interlocutory appeal to resolve these questions
before trial.
Chief
Justice Roberts offers another consideration near the end of his opinion: We live
in highly polarized times when people are quick to assume that their political
opponents are acting dishonestly and even criminally. If the Court did not
create an immunity for former presidents, there might be a cycle of revenge in
which each successive administration attempted to put former presidents from
the opposition party in jail. “The enfeebling of the
Presidency and our Government that would result from such a cycle of factional
strife is exactly what the Framers intended to avoid.” The Supreme
Court’s conservative majority might have thought that the multiple prosecutions
of former President Trump both in federal and in state courts were precisely
such examples of political revenge. Or they might have worried that Trump will
take revenge on President Biden, as he has repeatedly suggested he will do.
The
argument in response would look something like this: Presidents like Trump are
the exception rather than the rule in American constitutional history. No
previous president has threatened the democratic system in the way that Trump
has, and if he is being prosecuted, it is because he actually is a serious
threat to the constitutional system. Moreover, even in the highly polarized
environment of the Bush II, Obama, and (first) Trump administrations, there was
no attempt to criminally prosecute former presidents for their official
actions. Thus, the Supreme Court’s fear of a cycle of vengeance might be based
on a sample of one. Moreover, the Court’s grant of immunity may produce a
different cycle: a cycle of increasingly corrupt presidents who disregard the
law knowing that they will never be held to account. That possibility becomes
especially worrisome because the Trump Presidency proved that the impeachment
process is a paper tiger. In a highly polarized political environment, it is
almost impossible to remove a president as long as his or her party has
thirty-four defenders in the Senate.
5.
What is an official act? The case of
bribery. The doctrinal structure of the Trump opinion is unwieldy and raises
a series of puzzling questions. The best way into them is the case of a
President who accepts a bribe. See Akhil Reed Amar, Something Has Gone Deeply
Wrong at the Supreme Court, The Atlantic, July 2, 2024.
Suppose
that the President takes a bribe to pardon a political contributor who has
committed some crime. Accepting such a bribe is clearly an impeachable offense.
Article II, section 4 lists bribery as one of the grounds for Impeachment. At
the Senate trial, the Senators can surely consider any evidence of the
President’s corrupt motives. That includes evidence of discussions with the
political contributor as well as discussions with the President’s close
advisors. (That is why Nixon assumed that he would be convicted at an
impeachment trial for obstruction of justice—the tapes showed evidence of his
corrupt motives).
Moreover,
Article I, section 3 says that upon conviction for bribery in an impeachment
trial, “the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.” That would seem
to suggest that a president who accepted bribes could be prosecuted under
federal bribery statutes. As Justice Barrett remarks, the
federal bribery statute forbids any public official to seek or accept a thing
of value “for or because of any official act.” 18 U. S. C. §
201(c).
Nevertheless,
in Trump, Chief Justice Roberts tells
us that the pardon power is one of the core executive functions. Therefore the
President’s pardon should be a core official act and should be absolutely
immune from prosecution for bribery. Nevertheless, in one of the footnotes to
the opinion, Roberts assumes a federal prosecution for bribery would be
possible. How is that consistent with the logic of the opinion, given that the
federal bribery statute only applies when the President engages in an “official
act”?
One
theory, offered by Justice Barrett, is that “[t]he
Constitution … does not authorize a President to seek or accept bribes, so the
Government may prosecute him if he does so.” That is, the government may not
prosecute a former president for giving a pardon, which is a core executive
function, but it may prosecute him or her for accepting money in exchange for a pardon.
The
problem with this theory is that it is in some tension with Chief Justice
Roberts’ holding about Trump’s attempts to get the Justice Department to stage
shame investigations of voter fraud to slow down the certification process: “The indictment’s allegations that the requested investigations
were “sham[s]” or proposed for an improper purpose,” Chief Justice Roberts
explains, “do not divest the President of exclusive authority over the
investigative and prosecutorial functions of the Justice Department and its
officials. And the President cannot be prosecuted for conduct within his
exclusive constitutional authority. Trump is therefore absolutely immune from
prosecution for the alleged conduct involving his discussions with Justice
Department officials.” Along the same lines, the allegation that a pardon was
given for an improper purpose would divest the President of exclusive authority
over pardons. Hence the fact that the President offered a pardon for an
improper purpose would seem to be beyond prosecution as well.
Nevertheless, in response to Justice Barrett, Chief Justice
Roberts explains that “the prosecutor may point to the public record to show
the fact that the President performed the official act. And the prosecutor may
admit evidence of what the President allegedly demanded, received, accepted, or
agreed to receive or accept in return for being influenced in the performance
of the act.” However, the prosecutor may not “admit testimony or private
records of the President or his advisers probing the official act itself. Allowing
that sort of evidence would invite the jury to inspect the President’s
motivations for his official actions and to second-guess their propriety.” The
difficulty is how one can prove bribery if one cannot admit evidence of a
corrupt motive in performing an official act or “inspect the President’s
motivations” for performing the act.
Equally puzzling is that all of this kind of evidence can be
considered publicly in an impeachment trial. If a President were impeached and
removed for bribery and subsequently prosecuted, the evidence of his motives would
already be available to all. Therefore, if Roberts is worried that “inspection
[of the President’s motives] would be ‘highly intrusive’ and would ‘seriously
cripple’ the President’s exercise of his official duties,” the cow would
already seem to be out of the barn door.
6.
SEAL Team Six. A hypothetical offered
in both the D.C. Circuit and Supreme Court oral argument involved a president
ordering an elite military special missions unit, SEAL Team Six, to assassinate
a political rival. (For purposes of the hypothetical, suppose that the
President asserts that the assassination is necessary for reasons of national
security.) Justice Sotomayor argues that under the majority’s reasoning, the
President would be immune from criminal prosecution. How does Chief Justice
Roberts respond to the argument? During oral argument, Justice Alito argued
that military personnel are required by the Uniform Code of Military Justice
not to obey unlawful orders. It is obvious that this order is unlawful, Alito
argued, and therefore it would be implausible that the military would carry out
such an order. Is this a sufficient reply?
7.
Laundering a Coup. After Trump v.
United States, if a President wants to do something criminal in the future, he
is well-advised to launder it through official acts—especially acts at the core
of his powers—discuss it only with his close advisers, and let them do all the
work. Suppose that you were a president who had recently lost an election, and
sought to act consistently with the new rules set out in Trump v. United
States. How would you stage a coup to remain in power? What presidential powers
would you draw on?
8.
Presumptive versus absolute immunity.
Trump says that while some
presidential acts at the core of executive functions are absolutely immune from
criminal prosecution, other official acts are at least presumptively immune.
The majority argued that “the current stage of the proceedings in this case
does not require us to decide whether this immunity is presumptive or absolute.
… Because we need not decide that question today, we do not decide it.”
According to Roberts, such presumptive immunity can be rebutted by a showing that “applying a criminal prohibition to [an official] … act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” How would one show that criminal prosecution would pose no dangers of intrusion? What if a criminal prosecution would create a small chance of a slight danger of intrusion on executive authority and functions? Is that enough to require immunity? Has Roberts offered a balancing test? If so, what precisely is one supposed to balance?
9. Lincoln, Nixon, and Trump v. United States. Recall the casebook’s discussion of the contrasting views of Abraham Lincoln and Richard Nixon concerning the President’s power to protect national security for the best interests of the nation (pp. 329-30). Nixon argued that "when the President does it, that means that it is not illegal." Lincoln, by contrast, argued that if a President "uses the power justly, the ... people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution." What is the difference between these two formulations? Which of them is most similar to Chief Justice Roberts' reasoning about presidential immunity in Trump v. United States?