Category: Impeachment

Note: since my last post the world has lost another lion of congressional oversight, Mort Rosenberg, who for 35 years was every House and Senate committee’s “go to” expert at the Congressional Research Service for advice and assistance on congressional investigations, executive privilege, vacancies, and many other issues. Mort is mentioned in this post as he has been in many others over the years. He will be greatly missed.

Today concludes the series of posts I began on April 8 on “Immunity, Impeachment and Juristocracy.” The prior posts are as follows:

Part I: Unoriginalist Sin (Apr. 8, 2025)

Part II: Nixon v. Fitzgerald (Apr. 9, 2025)

Part III: “Core” Official Conduct (Apr. 13, 2025)

Part IV: Noncore Official Conduct and Evidentiary Use (Apr. 17, 2025)

Part V: Above the Law (Apr. 27, 2025)

Part VI: Chilling Doom (Apr. 30, 2025)

The upshot of these posts is that Congress cannot rely on other branches or institutions to police, punish or deter executive branch crime or wrongdoing. This is most obviously true of the president, but it also applies to subordinate executive branch officers. Therefore, Congress must assume this responsibility itself.

Historically, congressional investigation of executive branch wrongdoing has generally been an outgrowth of ordinary congressional oversight. Only rarely do such investigations turn into (or begin as) formal impeachment inquiries and even more rarely does the House actually impeach an officer of the executive branch. And, of course, the Senate has never convicted a president or other executive branch officer. The primary consequences for executive branch wrongdoing have been reputational (amplified through the media), forced resignation, firing, and criminal sanctions. But for the reasons discussed in the prior posts (and illustrated by daily headlines), these consequences are much less likely than they once were and their deterrent effect has dramatically diminished if not evaporated.

Professor Jonathan Shaub has posted this article which grapples with the difficulty of holding the executive accountable in the current legal and political environment. See Jonathan David Shaub, White House Inspection, 103 Wash. U. L. Rev. __ (forthcoming 2026). He argues that Congress is ill-equipped to fill the gap:

Congress as investigator—whether pursuant to legislative oversight authority or impeachment authority—has a number of shortcomings, many, but not all, of which are well-known and noncontroversial. First, and perhaps most obviously, Congress is partisan, and, in our current polarized environment, this partisan character combined with the dominant two-party system hampers both the reality and perception of congressional investigation. Second, Congress lacks the ability to enforce its investigative demands on any realistic timeframe. Third, perhaps less obviously, Congress is a poor choice because it lacks expertise and key institutional incentives—in part because of its politicization—related to the confidentiality of investigative files.

White House Inspection, supra, at *42.

None of these concerns are unfounded, but, as discussed below, I think there are reasonably persuasive responses to each. Whether Congress will prove capable of meeting the challenge of the present moment only time will tell. But in a very real sense there is no alternative. Congress is the only institution with the inarguable constitutional authority and duty to hold the executive accountable. Even Shaub’s proposal (which we will discuss shortly) depends in large part on Congress fulfilling the role the framers entrusted to it. Continue reading “Impeachment, Immunity and Juristocracy (Part VII: What Should Be Done)”

Although Trump is more circumspect than Fitzgerald in acknowledging the policymaking nature of its decision, it is nonetheless based on a series of policy intuitions or judgments, some of which are borrowed from Fitzgerald and some of which are not. One in the former category is the need to ensure that the president is not “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 745). The “hesitation to execute the duties of his office fearlessly and fairly” which “might result” from the specter of potential prosecution “raises ‘unique risks to the effective functioning of government.’” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 751). Moreover, the Court opined, “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” 603 U.S. at __, slip op. at 13.

The Court did concede that a president “might be exposed to fewer criminal proceedings than the range of civil damage suits that might be brought by various plaintiffs.” Id. But the Court was unimpressed by the government’s argument that the criminal justice system provides adequate safeguards for the concerns it raised. For example, it dismissed the argument that a court could guard against inappropriate use of evidence of the president’s official acts through evidentiary rulings and jury instructions, saying that such “prosaic tools . . . are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” 603 U.S. at __, slip op. at 31.

And what are these “peculiar constitutional concerns”? For one thing, the Court worries that “the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance in office.” Id. This concern, though, seems mismatched to the distinction the Court draws among unofficial/core official/noncore official acts. If the Court fears that the jury will be prejudiced against a former president, it is hard to see why it would matter whether the president is charged with committing an official crime or a purely personal one.

The Court also appears to have a general skepticism of the criminal justice system. The “prosaic tools” of that system “may suffice to protect the constitutional rights of individual criminal defendants,” it says, but are insufficient to protect “the institution of the Presidency.” Id. Similarly, it later rejects “the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place,” noting that these are just the assurances “available to every criminal defendant.” Id. at 37. The clear import of these statements is that while the safeguards of the criminal justice system may (or may not) be good enough for ordinary private citizens, they fall short when applied to something the Court really cares about. Continue reading “Immunity, Impeachment and Juristocracy (Part VI: Chilling Doom)”

Today we will consider the implications of Trump v. United States for the overall legal accountability of the executive. At the outset we should acknowledge that the future effect of this decision, as it will be interpreted and applied by the courts and the executive branch, cannot be predicted with certainty. Indeed, the decision itself comes with the caveat that it is too early “to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution.” Trump, 603 U.S. at __, slip op. at 15. Still, we can identify sufficiently dire consequences that are certain, likely, or plausible to require taking the matter with the utmost seriousness.

We might begin with the question whether Trump places the president “above the law.” The Court indignantly rejects this accusation:

Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.

Trump, 603 U.S. at __, slip op. at 40. Justice Thomas puts the point more succinctly, explaining “there has been much discussion about ensuring that a President ‘is not above the law’ . . . [but] the President’s immunity for his official acts is the law.” 603 U.S. at __, slip op. at 8 (Thomas, J., concurring) (emphasis in original).

These responses miss the point. In monarchies it may be the law that the king “can do no wrong.” But that is precisely what it means to say that the king is above the law. Similarly, if the majority’s reading of the Constitution means, as Professor Vermeule puts it, that the president “can do no legal wrong,” then it has effectively placed the president above the law, whether one agrees with its reading or not.

Continue reading “Immunity, Impeachment and Juristocracy (Part V: Above the Law)”

As we discussed in the last post, the Trump Court found that the president was entitled to what it called “absolute immunity” from criminal prosecution for his “core” official acts. Although this result resembles the absolute civil immunity granted by Fitzgerald for the president’s acts within the outer perimeter of his official responsibilities, we saw that it is not based on either the precedential authority of Fitzgerald or the reasoning of that case.

However, with respect to the president’s noncore official acts, Trump follows the balancing approach of Fitzgerald, though it reaches a possibly different result. The Court concludes that the president is entitled to at least presumptive immunity for his noncore official acts, but it leaves open the possibility that he might be granted absolute immunity for these acts. On the one hand, it explains that “[t]he danger [of criminal prosecution] is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __ (quoting Fitzgerald, 457 U.S. at 745). On the other hand, the Court acknowledges that there is a greater public interest in enforcement of criminal law, and in ensuring the president’s compliance with such law, than in private lawsuits. See 603 U.S. at __ (“The President, charged with enforcing federal criminal laws, is not above them.”). The Court therefore suggests, but does not decide, that the president’s noncore official acts should receive only presumptive, rather than absolute, immunity from criminal prosecution.

The Court’s view that Fitzgerald’s balancing test may require a different outcome in criminal cases is plausible enough, particularly given that the test amounts to little more than aggregating each justice’s subjective assessment of the competing policy interests. However, the Court’s explanation as to why it does not decide the question is, as they say, vacuum argumentum. (Ok, nobody says this, but it is ChatGPT’s Latin approximation of “bullshit”). The Court points to the need for further factual development in the lower courts, but this relates solely to the need to categorize the acts charged by the indictment as official or unofficial. This does not explain why the Court was unable to decide the legal question of how much protection should be extended to noncore official acts.

We do not need to wait 40 years for the internal correspondence of the Trump Court to understand what is going on here. Just as the Fitzgerald Court was able to cobble together a majority by sidestepping what would happen if Congress imposed civil liability on the president, so the Trump Court punted on the issue of immunity for noncore official acts, presumably because some justices in the majority wanted absolute immunity and some only presumptive immunity. As Professor Whittington observes, the decision “bears all the hallmarks of an uneasy negotiation and compromise among the Justices in the majority.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 284 (2024). The only difference is that the Trump Court failed to decide an issue presented by the case before it.

While leaving open the question of what level of protection would be extended to noncore official acts, the Trump Court “suggested an extremely broad understanding of what falls within the outer perimeter of the President’s office” for purposes of the immunity analysis. Whittington, 2023-24 Cato Sup. Ct. Rev. at 299. Justice Sotomayor’s dissent similarly noted that “[i]f the majority’s sweeping conception of ‘official acts’ has any real limits, the majority is unwilling to reveal them in today’s decision.” Trump, 603 U.S. at __, slip op. at 28 (Sotomayor, J., dissenting).

In contrast to Fitzgerald, which involved a relatively run of the mill complaint by a government whistleblower that he was dismissed in retaliation for congressional testimony that was embarrassing to the Air Force, Trump concerned an effort by the president to remain in office by overturning the results of the 2020 election. Setting aside the question whether Trump genuinely believed that the elections was “stolen” by his opponent, it is difficult to see how this effort could be characterized as anything other than an attempt to advance Trump’s personal and political interests. The Court nonetheless found that many of Trump’s acts could be characterized as official simply on the ground that “the President’s duty to ‘take Care that the Laws be faithfully executed’ plainly encompasses enforcement of federal election laws passed by Congress.”  Trump, 603 U.S. at __, slip op. at 26.  Thus, for example, it suggested that his speech on the Ellipse, in which he encouraged protestors to march to the Capitol to demand that Congress refuse to certify the electoral votes of his opponent, might be official because “the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election.” Trump, 603 U.S. at __, slip op. at 26-27.

Having thus “blurred the distinction between the President’s legal and political functions,” as Whittington rather mildly puts it, the Court remanded the case with little guidance to the lower courts as to how to untangle the mess that it had made.

The majority did not stop there, however. It also held that prosecutors are forbidden from even introducing evidence of official conduct for which the president cannot be prosecuted. This too goes well beyond the holding of Fitzgerald. Imagine, for example, that Fitzgerald had sued Nixon for defaming him during a press interview after Nixon had left office. Nothing in either the reasoning or holding of the Fitzgerald decision suggests that he would be prohibited from introducing evidence of Nixon’s official conduct to show that Nixon was knowingly lying when he claimed that Fitzgerald was fired for incompetence.

The Trump decision means that even if a (former) president is charged with a clearly “unofficial” crime, prosecution may be more complicated than it otherwise would. In the New York state prosecution of Trump for campaign finance-related crimes, for example, his lawyers argued after the Supreme Court’s decision that the prosecution should not have been allowed to introduce evidence of Trump’s conversations with a White House communications official regarding the criminal activity, even though the crime itself largely occurred before Trump became president and could not plausibly be construed as official in nature.

Collectively, the rulings and language of the Trump opinion have enormous implications for Congress and the extent to which the president and the executive branch remain accountable to the law. We will turn to those in our next post.

 

 

 

Despite Delahunty and Yoo’s claim that Trump “[c]losely follow[ed] Fitzgerald,” the two decisions are quite different in several ways. To begin with, Trump divides the president’s official conduct into “core” and “non-core” conduct. Today we will consider the Court’s ruling as to core official conduct. Although (spoiler alert) the Court finds that the president is absolutely immune from criminal liability for this conduct, its conclusion does not rest on Fitzgerald or the reasoning of that precedent.

The president’s core constitutional powers, according to the Court, are those within his “conclusive and preclusive” constitutional authority. They include both powers expressly provided in the Constitution, such as the power to grant pardons, and those that have been found to be implied, such as the power to remove executive officers appointed by the president and to decide whether to recognize foreign governments.

These core constitutional powers are not limited to formal acts. The Court explains that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” Therefore, President Trump’s discussions with the Justice Department in connection with alleged fraud in the 2020 election, even if proved to be a mere sham to provide cover for his efforts to overturn the results of the election and remain in office, were exercises of his core constitutional powers.

The Court held that all exercises of a president’s core constitutional powers were beyond Congress’s power to regulate or criminalize. Although it terms this as the president enjoying “absolute immunity” from criminal liability for his core official acts, this is a somewhat misleading shorthand (as Justice Barrett’s partial concurrence suggests). The Court’s holding is not really that the president is immune from prosecution for crimes committed in the course of exercising his core constitutional powers, but that Congress lacks the power to criminalize those acts in the first place, even as part of a statute of general applicability. Echoing Barrett, Professor Whittington explains that “the question is not whether Presidents are immune from criminal prosecution as such, but instead whether particular criminal law provisions are constitutionally infirm as they might be applied to presidential actions.” Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 301 (2024) (emphasis in original). A straightforward and relatively uncontroversial application of this principle is that Congress could not make it a crime to issue a pardon or to exercise the president’s constitutional power of removal.

The application of this principle to criminal statutes of general applicability is a good deal more controversial, but Whittington is correct that it was not invented out of whole cloth for purposes of the Trump case. He points to Bill Barr’s 2018 memorandum, which argued that Trump’s 2017 firing of FBI Director James Comey could not be prosecuted as obstruction of justice. (Barr in turn relied on prior Department of Justice opinions that found that interpreting certain broadly worded criminal statutes to the president would raise significant constitutional concerns).

Comparing Barr’s careful and narrow argument to the radical and slipshod opinion of the Trump Court is instructive. Barr does not make any claim that presidents enjoy criminal immunity for their official acts. He cites Fitzgerald’s civil immunity as an example of the law’s “array of protections designed to prevent, or strictly limit, review of the Executive’s discretionary powers,” but he does not suggest there is or should be any criminal immunity. Instead, he did what one would logically do under the Barrett/Whittington approach; he examined whether the statute in question, 18 U.S.C. §1512, the federal obstruction statute (also one of the two statutes charged in Trump), would be unconstitutional if applied to Trump’s firing of Comey. Much of Barr’s argument was focused on the proper construction of §1512, but he invokes the doctrine of constitutional avoidance to support his view that the statute should not be read to reach the Comey firing. Specifically, he argues that “defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.” Barr Memorandum (Introduction) (emphasis added). The terms “facially-lawful” and “solely” are integral to Barr’s argument, and he repeats them several times in the memo. Continue reading “Immunity, Impeachment and Juristocracy (Part III: “Core” Official Conduct)”

If Trump v. United States has no foundation in the original meaning of the Constitution (as discussed in my last post), what is the rationale of the decision? Delahunty and Yoo make three main points in support of the majority’s ruling: (1) the holding is consistent with (if not compelled by) the Court’s reasoning in Nixon v. Fitzgerald, 457 U.S. 731 (1982); (2) the holding is consistent with separation of powers principles; and (3) the holding is supported by public policy considerations, specifically the need to end the (allegedly) abusive prosecutions of the former president (and to prevent similar actions in the future). To a significant extent, these justifications amount to different ways of saying the same thing. Today we will look at the Fitzgerald decision and whether the separation of powers/policy rationales of that case provide support for Trump.

Fitzgerald held, in a 5-4 decision, that current and former presidents enjoy absolute immunity from civil damage suits for actions taken within the “outer perimeter” of their official duties. The majority opinion by Justice Powell identified a variety of sources of law that were relevant to the issue before it. First, it noted that its prior immunity decisions “have been guided by the Constitution, federal statutes, and history.” 457 U.S. at 747. Second, “at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law.” Id. Third, the Court “necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government.” Id. at 747-48.

The Court then suggest that the immunity analysis may be somewhat different for the president:

In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of the common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.

457 U.S. at 748.

This is a rather word salady way of saying two things. First, the Court thinks that the president should be treated differently in the immunity analysis than other executive officials, such as cabinet officers and governors. Specifically, while the Court’s precedents called for evaluating immunity based on the particular function being performed by the official who is sued for damages, Fitzgerald found that the unique nature of the presidency required extending immunity to all conduct within the “outer perimeter” of this official responsibility. Id. at 756; see also id. at 750 (“The President’s unique status under the Constitution distinguishes him from other executive officials.”).

The second point is that the grounding of the president’s immunity in separation of powers arguably placed it beyond Congress’s power to regulate. If the Constitution mandates absolute immunity for the president, Congress would be prohibited from imposing damages liability for any conduct within the outer perimeter of his duties. However, the Fitzgerald Court declined to decide whether the president would enjoy immunity in the event Congress enacted a statute which expressly authorized civil damages against the president. See Fitzgerald, 457 U.S. at 748-49 n.27 (“our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress”).

This position was criticized by both the dissenters and Chief Justice Burger in his concurrence; they agreed that it was inconsistent for the majority to both claim that the president had absolute immunity based on separation of powers, on the one hand, and to leave open whether this immunity could be abrogated by affirmative congressional action, on the other. See Fitzgerald, 457 U.S. at 792 “We are never told . . . how or why congressional action could make a difference.”) (White J., dissenting); id. at 798 (Blackmun, J., dissenting); id. at 758, 763 n.7 (Burger, C.J., concurring).

The internal correspondence of the Fitzgerald Court shows that almost all of the justices, in fact, believed that this was a contradiction, though they were sharply divided on which way it should be resolved. The four dissenting justices, of course, believed the Constitution provide no immunity, while at least two other justices in the majority privately agreed with Burger that the constitutional immunity would apply even in the face of a statute to the contrary. Powell also indicated he would agree with Burger should the issue be presented, though he fluctuated somewhat on how definite this position was. Only Justice Stevens was firmly in the undecided camp, and he evidently refused to join the majority opinion unless it clearly spelled out that affirmative congressional action would present a different case.

Personally, I can see where Stevens was coming from. Although the Fitzgerald Court states that “[w]e consider [the president’s immunity from civil damages] a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” 457 U.S. at 749, these buzzwords mean very little. The fact that the Court “considers” immunity to be a “functionally mandated incident of the President’s unique office” just means that it believes subjecting the president to civil damages is a bad idea that would interfere with his ability to do his job. That it is “rooted in the separation of powers” is little more than another way to refer to the president’s “unique office,” or, as the Court phrases it later, “the special nature of the President’s constitutional office and functions.” See 457 U.S. at 756. The claim that immunity is “supported by our history” appears to be mostly meaningless filler.

Indeed, Powell’s early drafts used the phrase “justified by considerations of public policy” instead of “supported by our history.” He changed this wording, and made several other edits, in response to comments from his colleagues that the draft was too forthright in acknowledging that the decision was essentially an exercise of judicial policymaking. One particularly amusing memo from Stevens expresses concern about the frequent references to public policy and descriptions of “the Executive’s immunity as something that is granted by the Court rather than provided by law.” He explained that “[i]n a realistic sense, perhaps your opinion is entirely correct in referring to grants of immunity by judges, but I feel much more comfortable when I am able to say that we are merely applying the law as we understand it to exist independently of the composition of the Court.” Powell dutifully made the cosmetic changes, but the dissent still pointed out the reality. See 457 U.S. at 769 (noting that “the judgment in this case has few, if any, indicia of a judicial decision; it is almost wholly a policy choice, a choice that is without substantial support and that in all events is ambiguous in its reach and import”) (White, J., dissenting).

Given that, in a “realistic sense,” the opinion was more of a policy choice than a judicial decision, it is understandable that Stevens insisted on reserving the question of what would happen if Congress acted to impose liability on the president. Congress is rather better suited than the Court to make a policy judgment about whether the president should be subject to civil liability. Even if one accepts that the Constitution requires the courts to balance the public interest supporting and opposing immunity, the fact of congressional action would seem to be a factor that should be considered in weighing the competing interests (a point Powell made to his skeptical colleagues in an internal memo).

It is also worth noting that the Fitzgerald Court’s rhetoric about the president’s “unique office” should be taken with a grain of salt. In a case several years earlier, Butz v. Economou, 438 U.S. 478 (1978), the Court had held by a 5-4 majority that cabinet officers and other federal officials were generally entitled only to qualified immunity in civil damage suits. The dissent, however, contended that absolute immunity should apply. Three of the four dissenters in Butz joined the majority in Fitzgerald, while four members of the Butz majority dissented in Fitzgerald. Powell was the only justice who switched sides, and thus perhaps the only one who thought the president’s unique office was determinative of the level of immunity. (Justice O’Connor, who joined the majority opinion in Fitzgerald, had not been on the Court when Butz was decided). The decision to provide absolute immunity to the president but not to cabinet officers is thus one not necessarily dictated by the reasoning of either Butz or Fitzgerald. Cf. Fitzgerald, 457 U.S. at 784 (pointing out that the majority’s concerns about the chilling effect of civil lawsuits would apply to all officers, not just the president) (White, J., dissenting). Continue reading “Immunity, Impeachment and the Juristocracy (Part II: Nixon v. Fitzgerald)”

Today I will start a series of posts on the Supreme Court’s decision on presidential criminal immunity, Trump v. United States, 603 U.S. __, 144 S.Ct. 2312 (2024), and its implications for the legal accountability of the executive. While I am harshly critical of that decision, my main purpose is not to show that it is wrong, but rather that it (along with related developments) dramatically increases the need for systemic congressional oversight of executive (not just presidential) wrongdoing. Moreover, because the decision also threatens Congress’s authority to conduct ordinary legislative oversight, the exercise of the oversight power in the House should be integrated to the extent possible with the impeachment power. Finally, because the courts may refuse to assist or actively thwart congressional investigations, Congress should seek to minimize judicial involvement in any aspect of its inquiries.

Today’s post will address the Trump decision from the perspective of original meaning. Again, my point is not so much that the decision is wrong (though it definitely is), but that its reasoning is untethered to any standard other than the personal opinions of at least five justices, which at the present time happen to be extremely pro-executive power. As Robert Delahunty and John Yoo wrote recently, the Court’s decision in Trump is “one of the most resounding defenses of executive power in its history.” While they mean that as a compliment, not everyone will view it as self-evidently laudatory.

Regarding the legal merits of the decision, Professor Jack Goldsmith commented shortly after the decision came down:

Many people seem to have a strong opinion about whether the Court’s recognition of fairly broad presidential immunity was “right” or “wrong.” But the standard sources of constitutional law do not permit a definitive answer to that question.

I respectfully disagree. I do think the “standard sources of constitutional law” permit a definitive answer to the question. Specifically, the most standard of all sources of constitutional law, namely the text of the Constitution, dictates the answer to the question.

To see why, let’s take a look at the “defense” of Trump offered by Delahunty and Yoo. I put the word “defense” in quotes because their argument clarifies the nature of the Court’s decision in a way that the majority, I think, might find less than congenial.

It is not surprising that Delahunty and Yoo would be supportive of the Trump decision. First, they are legal conservatives who would ordinarily be expected to agree with and defend the Court’s conservative majority. Second, they are veterans of the Office of Legal Counsel with expansive views of executive power. Third, as the piece itself makes clear, they are harshly critical of the supposed “lawfare” against Donald Trump.

Despite their strong predisposition to agree with the outcome of the Trump case, Delahunty and Yoo are clear about its lack of foundation in the original meaning of the Constitution. (To be sure, many other scholars have noted the non-originalist nature of the decision, but few of them are as enthusiastic about the result as Delahunty and Yoo). They acknowledge that “the Court rejected the strong originalist evidence against presidential immunity” and observe that “Chief Justice Roberts’ reasoning ran contrary to the textual and historical evidence at hand, which Justice Sotomayor’s dissent briefly surveyed.”

The authors go on to discuss Alexander Hamilton’s commentary in the Federalist Papers to buttress their point. They cite Federalist No. 69, in which Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” They further cite Hamilton’s explanation in Federalist No. 65 that impeachment and conviction does not “terminate the chastisement of the offender,” who rather “will still be liable to prosecution and punishment in the ordinary course of law.”

What is interesting is that Delahunty and Yoo cease their analysis of the original meaning there, as if Hamilton’s statements standing alone refute the Trump Court’s position. They simply state “[i]t is difficult, if not impossible, to find evidence from the founding period that overcomes Hamilton’s clear statements, which he made to defend the proposed Constitution during the fight over ratification.” They then move on from the “originalist” portion of their argument. The implication is that Hamilton’s “clear statements” refute the Court’s conclusion, unless one can find other evidence to “overcome” them.

But nothing in the Trump Court’s opinion ostensibly disagrees with Hamilton’s statements. The Court does not dispute that criminal prosecution may follow impeachment and conviction, which after all is explicitly set forth in the Impeachment Judgment Clause of the Constitution itself. See U.S. Const., art. I, § 3, cl.7 (“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 did the Court claim that the president is categorically excluded from the Impeachment Judgment Clause. It therefore acknowledges that in some cases Hamilton is correct that a former president would “be liable to prosecution and punishment in the ordinary course of law.”

What Chief Justice Roberts claims is that while the Impeachment Judgment Clause shows that a former president may be prosecuted, it “does not indicate whether . . . [he may] be prosecuted for his official conduct in particular.” Trump v. United States, 603 U.S. ___, slip op. at 38 (emphasis in original). Similarly, he cursorily dismisses other founding era evidence, including Federalist No. 69, on they ground they fail to “indicate whether [the president] may be prosecuted for his official conduct.” Id., slip op. at 39. Thus, the chief justice might say, a former president can be prosecuted for murdering his wife or robbing a bank, just not for official misconduct.

Delahunty and Yoo fail to respond to this argument, which is hard to explain. Perhaps they felt it was so self-evidently disingenuous that responding would undercut the remainder of the article, which praises the decision for various non-originalist reasons. Whatever the reason, they do not point out the obvious flaw in Roberts’s position, which is that impeachment is directed first and foremost at official misconduct. Hamilton’s audience was not concerned with the possibility that a president might murder his wife or rob a bank. They were worried about a president who might abuse his office for treasonous or corrupt purposes.

Although the impeachment provisions of the Constitution apply to a wide range of civil officers, they were drafted primarily with the president in mind. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 106 (1973) (“in the impeachment debate the Convention was almost exclusively concerned with the President”). Moreover, the prosecution of presidential criminality was expressly discussed at the Philadelphia Convention. Edmund Randolph, for example, objected to giving the president the pardon power in cases of treason, arguing that “[t]he President may himself be guilty” and “[t]he Traytors may be his own instruments.” James Wilson responded: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he himself be a party to the guilt he can be impeached and prosecuted.” 2 The Records of the Federal Convention of 1787 626 (Max Farrand ed., 1903).

Delahunty and Yoo point out that under Trump “the President enjoys no immunity for private, unofficial acts.” But as they surely know, impeachment is not concerned primarily with such acts. The Impeachment Judgment Clause relates to prosecutions for conduct constituting “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. const., art. II, § 4. This phrase is aimed principally, if not exclusively, at official misconduct, particularly criminal conduct intimately tied to public office. The Randolph/Wilson colloquy, for example, is about a president who pardons traitors who had been acting as “his own instruments.” This envisions a president who is organizing a treasonous conspiracy under the authority of his office, not one committing treason as a private individual.

Historically there has been great controversy over whether ordinary criminal conduct (such as murder, rape or robbery) is even a proper subject of impeachment. The constitutional treatise writer William Rawle maintained that “[i]n general those offenses which may be committed equally by a private person as a public officer, are not the subjects of impeachment.” William Rawle, A View of the Constitution 215 (1829). Many others have held similar views. See Berger, Impeachment, at 202 (“It is generally said, though a few voices to the contrary are not wanting, that impeachment is limited to acts performed in an official capacity.”). It would make no sense to hold this view if it were understood the Impeachment Judgment Clause applied only to ordinary crimes. Conversely, if there had been even a minority position that the president was immune from prosecution for official acts, one would expect that this would have been advanced in arguments against the view that impeachment is limited to acts performed in an official capacity. The fact that no one argued for presidential official act immunity is therefore strong evidence of an understanding that no such immunity existed.

When Delahunty and Yoo say that Trump was contrary to the “strong originalist evidence” or the “textual and historical evidence,” therefore, what they are actually saying is that Trump is flatly inconsistent both with what the Constitution says and with what it has been uniformly understood to mean. The relative paucity of statements about the president’s potential criminal liability or immunity for official acts reflects not an “unsettled question,” as some have suggested, but the fact that no one thought this was a question at all. (As will be discussed in my next post, the closest I can find to anyone expressing doubt, publicly or privately, about the president’s accountability to the criminal law prior to 2021 is a single comment by Justice Rehnquist which, in context, underscores how marginal the idea was).

If Trump cannot be justified on originalist grounds, what “defense” can be offered of the decision? In my next post I will look at the non-originalist underpinnings of the opinion.