Immunity, Impeachment and Juristocracy (Part I: Unoriginalist Sin)

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.