In a story published this weekend in the New York Times, Michael Schmidt writes about President Trump's frustrations in April 2018 when Attorney General Jeff Sessions refused to prosecute Hillary Clinton and Jim Comey (presumably because there was no evidentiary basis for such prosecutions). In an Oval Office meeting, Trump "told startled aides" that if Sessions refused to do so, Trump would "prosecute [Clinton and Comey] himself."
Hoping to head off such an unprecedented and indefensible presidential intervention, White House Counsel Don McGahn told Trump he would prepare a memorandum "explaining to you what the law is and how it works, and I’ll give that memo to you and you can decide what you want to do." Schmidt reports that McGahn eventually gave Trump a "polished" version of the memo, but it appears that Schmidt has only seen two earlier drafts of it, excerpts from which the Times has now published.
The memos are interesting for several reasons. What most struck me, however, was just how obsolete those memos might now be, just six years later, because of intervening legal developments--namely, two radical opinions of the Supreme Court, both written by Chief Justice John Roberts. Those opinions, if taken at face value, appear to confirm Donald Trump's view--rejected by McGahn--not only that the President is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions, and not only that the President himself could perform those functions, but also that Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends.
That cannot, of course, be right. And I hope that one day it is formally repudiated. In the meantime, however, the Trump/McGahn episode offers a stark illustration of just how far the Court has strayed from established (and proper) understandings of the nature of the "executive power" the Constitution assigns to the President.
The latter of the two draft McGahn memos excerpted in the Times, dated April 23, 2018, explained that the President’s power over the enforcement of criminal law "is broad but it is not unlimited." The President can, for example, "[r]equire the Attorney General to report on the status of an investigation or prosecution and his reasons for supporting or opposing further action"; "[i]nstruct the Attorney General on how to exercise his statutory authority to oversee an investigation or prosecution"; and "[r]emove the Attorney General from office if the president determines that he is not faithfully executing the laws." Moreover, the memo further explained, the Constitution even allows the President to direct other officials (such as district attorneys in the early decades of constitutional practice) to initiate or to cease prosecutions "in a number of contexts"--in particular, where the President concludes that a prosecution should end because it is not lawful. (Attorney General Wirt for instance, opined in 1827 that the President could order the discontinuance of a “vexatio[us]” suit in the name of the United States if it was “wholly unfounded in law.” 2 Op. Att’y Gen. at 54. Four years later, Wirt’s successor, Roger Taney, likewise advised that the President could exercise his “take care” authority to direct a district attorney to discontinue a condemnation action involving jewels stolen from a foreign dignitary where the suit was manifestly baseless. 2 Op. Att’y Gen. at 483-484, 487-489. And, most famously, when he entered office President Jefferson ordered district attorneys to enter nolle prosequies in pending Sedition Act prosecutions because Jefferson viewed the Act as unconstitutional. See, e.g., Letter from Jefferson to William Duane (May 23, 1801), in 8 The Writings of Thomas Jefferson 54, 55 (P. Ford ed., 1897); see also Letter from Jefferson to Edward Livingston (Nov. 1, 1801), in id. at 57, 58 n.1 (“if [the President] sees a prosecution put into a train which is not lawful, he may order it to be discontinued”).)
The draft McGahn memo, however, also identified at least three other important limits on the President's power with regard to federal criminal law enforcement.
First, it strongly implied that a directive to prosecute a case without any basis in fact--as Trump was threatening to do--would violate the President's constitutional duty to take care that the laws are faithfully executed (and would, in any event, be stymied by the grand jury and/or the trial judge).
Second, the memo explained that the Constitution--including the Article II "Vesting Clause" (“The executive power shall be vested in a President.”)--does not afford the President authority to himself exercise statutory authorities Congress has prescribed for other officials, including the authorities to investigate and prosecute crimes.
Third, and most importantly, the memo emphasized that even if the President has some constitutional authority to direct other officials about whether and how to investigate and prosecute crimes, Congress can enact statutes to limit that directive authority--and Congress has long done just that. "'[T]he scope of the president’s executive power,'" explained the memo, "'is limited by the terms of all valid acts of Congress,'” and "'Congress may prescribe that a particular executive function may be performed only by designated officials in the executive branch and not by the president.'” "In such cases," the memo continued, “'the executive power conferred upon the president the authority to supervise and control that the official in the performance of those duties but the president is not constitutionally entitled to perform those tasks himself.'”
And "[t]hat," said the draft memo, "is the case here," in the context of criminal investigation and prosecution. The memo would have informed Trump (and presumably the final, "polished" version of the memo did so) that Congress may enact statutes to cabin and condition the Executive Branch's exercise of those functions. For example, "Congress can generally impose limits on an investigation—e.g., generally by imposing statutory prerequisites or limitations on investigations obtaining potential evidence or by passing an appropriations rider that prohibits the executive branch from spending funds on certain investigative activities." And, because Congress has, for well over a century, enacted statutes that "vest[] authority for conducting criminal prosecutions in the Attorney General and the Department of Justice," and that afford the AG the final say over such DOJ functions, it follows that "[t]he president may not initiate an investigation or prosecution himself or circumvent the Attorney General by directing another official to do so."
As the internal quotation marks two paragraphs above indicate, several of the key passages from the draft McGahn memo consisted primarily of quotations from another source. The Times excerpts do not include the source citations in the memos, but it's not hard to identify the source of the quotations above--and it's very telling. McGahn and his staff drew those statements bout Congress' power to limit presidential direction from an OLC opinion signed in March 2002 by then-Deputy Assistant Attorney General John C. Yoo. Yoo acknowledged the limits on the President's constitutional powers--and the power of Congress to use its Necessary and Proper Clause authority to regulate the President--at the very same time (shortly after September 11, 2001) that OLC was, in many other memos written or drafted by Yoo, asserting indefensibly broad claims of indefeasible (or "preclusive") presidential authority.
McGahn's message to President Trump thus was loud and clear: If even John Yoo thinks it's obvious that you don't have the powers you want to exercise ...
* * * *
Fast forward to today ... or, perhaps more ominously, to January 20, 2025. Since Don McGahn and his staff drafted that memorandum in 2018, the Supreme Court has issued a pair of opinions that, at a minimum, call into serious question the memo's fundamental constitutional understandings that even the John Yoo OLC had affirmed. In light of those Supreme Court rulings, it's exceedingly unlikely Donald Trump would be confronted with--or persuaded by--similar legal advice about the limits on his ability to control criminal investigations and prosecutions if he once again assumes office.
i. The first intervening case was the Court's 2020 decision in Seila Law LLC v. CFPB. The question presented there was whether Congress could provide "for cause" tenure protection for the Director of the Consumer Financial Protection Bureau. The Trump Administration and some scholars supporting Seila Law as amici argued that because the Executive Vesting Clause in Article II allegedly guarantees the President the authority to personally execute all federal laws, the President must also enjoy the ancillary, indefeasible authority to direct other officials in their execution of such laws because they are merely his agents. Moreover, on this view the Executive Vesting Clause commands an unrestricted removal power because the President must have unconstrained ability to control the officers who assist him in carrying out "his duties."
In an amicus brief, my colleague David Vladeck and I argued that this was a fundamental misunderstanding of the Vesting Clause--one the Court itself had unceremoniously rejected as an “alarming doctrine” way back in 1838, in Kendall v. U.S. ex rel. Stokes. We further explained that early Attorneys General, too, uniformly rejected the “unitary control” premises of the Vesting Clause argument; that no one in the early history of the nation argued that the President has the constitutional authority to personally execute statutory authorities Congress has specifically conferred upon another officer; and that "[t]hat baseline understanding has persisted to the current day."
Alas (but unsurprisingly), the Court, in an opinion written by Chief Justice Roberts, uncritically adopted the "unitary" understanding of the Vesting Clause. According to Roberts, "the 'executive Power'—all of it—is 'vested in a President” (emphasis added), and Congress is empowered to create "subordinate officers" merely in order to "assist[]" the President in executing the law, "[b]ecause no single person could fulfill that responsibility alone." From this premise--namely, that statutory officers are merely "agents" of the President "who wield executive power in his stead"--the Court concluded that Congress must lack authority to limit the President's power to remove such surrogates (a conclusion that has some intuitive appeal if one views those officers as merely presidential surrogates). Though the opinion in Seila Law does not say expressly that the President himself retains the unregulable authority to personally "execute" an officer's statutory functions, that certainly appeared to be the way the Chief Justice understood the Vesting Clause--indeed, it was, in effect, the central predicate of his analysis. From all that appears, the Chief Justice was not impressed by longstanding contrary practice and understandings, articulated by, inter alia, Attorneys General Wirt and Taney, that "Congress may prescribe that a particular executive function may be performed only by a designated official within the Executive Branch, and not by the President" because "the President is not constitutionally entitled to perform those tasks himself." The Court did not so much as mention that well-established view, let alone bother to try to refute it.
ii. The other shoe dropped this past July, when the Court issued its decision in Trump v. United States. As I'll explain at greater length elsewhere, the most extraordinary and troubling thing about that opinion was not the Court's already infamous holding that the President enjoys some sort of immunity (either absolute or "presumptive"--the Court hasn't yet decided) from criminal trial and sanction when he violates a valid law while acting in his official capacity, but, rather, Part III-B-1 of the opinion, in which the Court held not only that the President has "exclusive authority over the investigative and prosecutorial functions of the Justice Department," but also (apparently) that that authority is "preclusive" and that Congress therefore may not regulate it by statute!
Chief Justice Roberts' reasoning in that part of the Trump opinion is not altogether clear, but it's not hard to see the close correspondence between it and his analysis in Seila Law: "Investigative and prosecutorial decisionmaking," he wrote in Trump, "is 'the special province of the Executive Branch'" (quoting Heckler v. Chaney), and the Executive Vesting Clause "vests the entirety of the executive power in the President" (or so insists the Chief Justice). It follows (apparently) that "the Attorney General, as head of the Justice Department, acts as the President’s 'chief law enforcement officer'” (quoting Mitchell v. Forsyth; emphasis added), and therefore the President has the power to direct the Attorney General about how to exercise such functions. (The Chief Justice's modification of the quotation from Mitchell is telling. In Mitchell, the Court referred to the Attorney General as "the Nation's chief law enforcement officer." As Chief Justice Roberts would have it, however, the AG is now "the President's chief law enforcement officer.")
That analysis alone, and the Court's conclusion that "the President has exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials," is remarkable in and of itself: It's a stark repudiation of the historical view--reflected in the 2002 John Yoo OLC opinion and in the 2018 McGahn memo to Trump--that the Constitution does not give the President himself the exclusive authority to execute statutory authorities and that Congress, by assigning control of such functions to the Attorney General, has precluded the President from directing the AG about how to exercise the investigative and prosecutorial functions (except perhaps where necessary to prevent an unlawful prosecution, as in the early historical examples).
What makes Part III-B-1 of Trump v. United States even more alarming, however, is the Court's further holding that Congress may not regulate the way in which the President controls DOJ's investigative and prosecutorial functions, i.e., the Chief Justice's apparent leap from "the President has this power" to "Congress may not limit it," and the Court's further holding that Congress may not even prohibit the President from directing DOJ officials to abuse the power of their offices for improper ends.
The Chief Justice offered no explanation for that holding in Part III-B-1 itself, but it appears to be based upon this mangling of Justice Jackson's Youngstown concurrence earlier in the Trump opinion:
[T]he President’s authority to act necessarily "stem[s] either from an act of Congress or from the Constitution itself.” Youngstown, 343 U. S., at 585. In the latter case, the President’s authority is sometimes “conclusive and preclusive.” Id., at 638 (Jackson, J., concurring). When the President exercises such authority, he may act even when the measures he takes are “incompatible with the expressed or implied will of Congress.” Id., at 637. The exclusive constitutional authority of the President “disabl[es] the Congress from acting upon the subject.”
Note the astonishing leaps Roberts makes there.
First, he cites Justice Jackson as authority for the proposition that a presidential constitutional authority is "sometimes" preclusive (in the sense of being immune from statutory regulation). What Jackson actually wrote in the passage Roberts quotes, however, is that a "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system" (emphasis added). And one thing's for certain about the Court's opinion in Trump: It did not "scrutinize" Trump's claim of "preclusive" power with any caution at all, even though that claim was being made by a former President and was disclaimed by the sitting Executive.
Chief Justice Roberts' repurposing of the Jackson concurrence in the Steel Seizure Case was obviously deliberate, because the Chief Justice is well aware of the proper reading of that opinion. Dissenting in Zivotofsky v. Kerry (2015), Roberts opened his opinion (which Justice Alito joined) by insisting that the Court has always "stressed that the President’s power reaches 'its lowest ebb' when he contravenes the express will of Congress, 'for what is at stake is the equilibrium established by our constitutional system'" (quoting Jackson), and in that earlier decision Roberts added (again quoting Jackson) that "[a]ssertions of exclusive and preclusive power leave the Executive 'in the least favorable of possible constitutional postures,' and such claims have been 'scrutinized [by the Court] with caution' throughout this Court’s history" (emphasis added). Roberts' opinion in Trump acknowledges none of this.
That said, Justice Jackson did not deny that there might be some such rare "preclusive" presidential powers that Congress may not limit, and the Court has identified a small handful of them, including the removal power at issue in Seila Law and the "recognition" power to determine the U.S. position on which nation is sovereign over a particular land, which the Court recognized (over the Chief Justice's impassioned dissent) in Zivotofsky itself. In Trump, however, Chief Justice Roberts appears to reason that if the Constitution affords the President an "exclusive" power--i.e., one that no other branch can exercise--then Congress is disabled from enacting statutes to regulate that power. Exclusive = preclusive. Therefore, if (as the Court dubiously held in Part III-B-1) criminal investigation and prosecution are functions the Constitution "exclusively" assigns to the President, it appears to follow in Roberts' view that Congress may not use its Necessary and Proper Clause authority to limit or to condition that power.
I hope my first-year ConLaw students will be able to identify the non sequitur there. Almost all powers the Constitution assigns to the President are "exclusive" in the sense that no other branch may exercise them. (There are, of course, discrete counterexamples, such as the joint role of the President and the Senate in appointing principal officers.) Yet it does not follow that Congress may not use one of its constitutional powers--in particular, its authority "To make all Laws which shall be necessary and proper for carrying into Execution ... all ... Powers vested by this Constitution ... in any Department or Officer [of the United States]"--to limit or condition what the President could otherwise do. To be sure, there may be some constitutional authorities that Congress cannot limit (e.g., Congress cannot instruct the President on when to sign or veto a bill). But when it comes to statutory functions, of course Congress can regulate the President's supervisory authority, as both John Yoo and Don McGahn acknowledged. Likewise, because the functions themselves are the product of statutes, it's well-established that congressional enactments can impose limits on how statutory officers--and the President--may exercise such authorities.
And Congress regularly does so ... including with respect to the conduct of criminal investigations and prosecutions, just as it is does with respect to virtually all other statutory duties it assigns to Executive Branch officers. Congress sometimes imposes such limits specifically upon Executive Branch officers. Other limits appear in generally applicable laws. So, for example, statutes provide that DOJ officials, like anyone else, may not corruptly alter, destroy or conceal documents to prevent them from being used in an official proceeding; may not suborn others to commit perjury; and may not bribe or threaten witnesses.
Such DOJ officials also may not misuse their criminal law enforcement authorities in an effort to defraud the United States (see 18 U.S.C. § 371)—which was the principal offense identified in the Trump indictment. According to the indictment, Trump implored Acting Attorney General Rosen and Acting Deputy Attorney General Donahue "to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature.” In particular, on December 27, 2020, Trump proffered multiple false claims of election fraud to Rosen and Donahue despite the fact that those officials (and former AG Barr) had unequivocally and repeatedly told Trump they had no basis in fact. According to the indictment, when Rosen once again informed Trump that the Justice Department could not and would not make false representations of the evidence in order to try to change the outcome of the election, Trump responded: “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”Wes
Presumably Rosen and Donahue would have violated the criminal law had they complied with Trump's direction. Yet, according to the Supreme Court in Trump, Congress may not prohibit the President from ordering them to abuse their authority in that manner, simply because the Constitution gives the Executive Branch the "exclusive" authority to investigate and prosecute crimes.
That holding is inexplicable. As I wrote in my amicus brief in Trump:
There is no dispute that had those officials complied with the President’s directive, they would have acted unlawfully and abused their own authority. The Constitution does not empower the President to direct other executive branch officials to knowingly violate the law in that way. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838); see also United States v. Smith, 27 F. Cas. 1192, 1230 (No. 16,342) (C.C.D.N.Y. 1806) (Patterson, J., presiding) (“The president of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids.”).
(In his dissenting opinion in United States v. Texas in June 2023, Justice Alito highlighted Justice Patterson's well-known quotation in Smith as support for the notion that the Executive Vesting Clause not give the President authority to direct statutory officials to disregard the law. 599 U.S. at 734. One year and eight days later, however, Alito joined an opinion that held the President could do just that.)
It's difficult to imagine that anyone drafting a constitution would ever choose to disable the legislature from making it unlawful for a chief executive to instruct officials to corruptly use the instruments of criminal law enforcement--instruments the legislature has entrusted to them--in order to promulgate falsehoods about election fraud, let alone to do so in order to promote the counting of illegitimate electoral votes and the knowingly false certification of that executive as the winner of an election. Yet at least five Justices of the Supreme Court have now held that our Constitution does just that.
The Court's ruling in Part III-B-1 of Trump, especially in conjunction with its rationale in Seila Law, will make it much more difficult for Executive Branch attorneys to convince a future President of the legal advice that Don McGahn reportedly conveyed to Donald Trump in April 2018. After all, if it was legal for former President Trump to direct the Attorney General to lie to Georgia officials about election fraud in order to help Trump himself manipulate the electoral vote in order to secure re-election--if, as the Court held, such conduct was constitutionally privileged and can't be prohibited by statute--why wouldn't a President be constitutionally entitled to use the tools of the criminal justice system to persecute his enemies, regardless of whether there's any factual basis for doing so?
The absurdity of that conclusion merely demonstrates how aberrant and misguided Part III-B-1 of Trump truly is. To quote Justice Alito from his dissent the previous Term in United States v. Texas, 599 U.S. at 711, nothing in the Court's previous precedents "even remotely supports this grossly inflated conception of 'executive Power,' U. S. Const., Art. II, § 1, which seriously infringes the 'legislative Powers' that the Constitution grants to Congress, Art. I, § 1." See also id. at 714 (noting that even where the Executive enjoys a background "enforcement discretion" with respect to implementation of statutes, Congress has the "power to displace executive discretion").
Going forward, therefore, it's critical that legal actors, including responsible Executive Branch attorneys, work to find principled ways to limit the implications of Part III-B-1 of Trump and to somehow cabin the holding as much as possible. (The Supreme Court itself is unlikely to confront follow-on cases any time soon, so it probably won't be the primary source of error-correction or any cutting back.) I'll have more to say about that in a different forum.
The important point for present purposes is simply that the Court's rulings in Trump and Seila Law will, rightly or not, encourage a ruthless and irresponsible chief executive to abuse the criminal justice system to advance his own illegitimate ends. And memos such as the one Don McGahn drafted in April 2018 to prevent such abuse are, at least for now, virtually rendered obsolete by the Supreme Court's new, ahistorical conception of executive authority.