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.
His point is that if one treats a facially-lawful exercise of executive authority, such as removing an officer or exercising prosecutorial discretion and other types of discretionary decision-making, as potential obstruction simply because they could “influence” a proceeding, then all such actions become potential crimes simply based on an alleged improper motive. See Barr Memorandum (II)(B)(2) (“The prospect of criminal prosecution based solely on the President’s state of mind, coupled with the indefinite standards of ‘improper motive’ and ‘obstruction,’ would cast a pall over a wide range of Executive decision-making, chill the exercise of discretion, and expose to intrusive and free-ranging examination the President’s (or his subordinate’s) subjective state of mind in exercising that discretion.”).
Consider how Barr’s reasoning would apply to that piece of the indictment which, according to the Trump Court, implicated the president’s “core” official power. These were the allegations related to Trump’s interactions with the Justice Department, which the Court summarized as follows:
As part of this conspiracy, Trump and his co-conspirators allegedly attempted to leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent electors. According to the indictment, Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.
Trump, 603 U.S. at ___, slip op. at 19 (citations omitted).
These allegations are not remotely analogous to the situation contemplated by Barr. It was not alleged, for example, that Trump violated the obstruction act simply by firing the Acting Attorney General with the (corrupt) expectation that this would influence the federal investigation of election fraud. Instead, it was alleged that Trump directed the Acting Attorney General (on pain of removal) to create the impression (not the reality) of a federal investigation of election fraud for purposes of corruptly influencing an entirely different proceeding, the congressional electoral vote count. That proceeding was one in which the president has no official role, but Trump personally was an interested party. Whatever else one can say about these allegations, there is no chance they could be confused with garden variety executive decision-making, which was Barr’s primary concern.
Nor is this a case where the president is accused of obstruction based solely on his alleged improper motive for a facially-lawful exercise of executive power. Rather Trump is alleged to have threatened the exercise of executive power to pressure states to assist him as part of a broader conspiracy to obstruct the electoral vote count.
Threatening the use of executive power for a corrupt purpose is not a “facially-lawful” act as Barr uses the term. We can see this because he explains that the acts of obstruction charged in the Nixon impeachment were not protected acts, but rather inherently “bad acts” which were obstructive by their nature. These included Nixon’s discussion of dangling clemency before the Watergate co-conspirators, thereby leading them to expect favored treatment in exchange for their silence or false testimony. See Comm. on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, H. Rep. 93-1305, 75-82 (1974). Thus, while Nixon’s actual issuance of pardons presumably would have been facially-lawful acts in Barr’s view, his promise of possible future pardons as an incentive for obstructive conduct was not. This is consistent with Barr’s insistence that he is not seeking to protect executive officials from prosecution for inherently wrongful acts (such as falsifying evidence, suborning perjury, or inducing a witness to remain silent) which by their nature sabotage a proceeding’s “truth-finding function.” Nor is he contending that official acts are beyond the reach of the criminal law in any sense; he is merely arguing that one particular interpretation of the obstruction statute would unconstitutionally infringe on executive power.
To be sure, one can imagine an extension of Barr’s argument being made to defend Trump in the January 6 prosecution. It would go something like this. While the indictment describes a conspiracy to corruptly influence the outcome of the electoral vote count and inherently wrongful actions taken in support of the conspiracy, these were not (at least primarily) the type of evidence-falsifying actions covered by the obstruction statute. Instead, they were designed to bring political pressure on decisionmakers (state officials, members of Congress, and the vice president) to violate their oaths in order to keep Trump in power. As such, they were more like attempts to change the outcome of court cases by ginning up public outrage toward particular decisions or judges (another subject Trump knows well). Such behavior is not covered by the obstruction statute and, to the extent the law is ambiguous, the doctrine of constitutional avoidance requires a narrow reading.
I don’t think the constitutional part of that hypothetical argument is particularly persuasive, but it is not frivolous. Moreover, accepting that argument would not conflict with the Constitution’s plain meaning as described in my first post.
This, however, is not the path the Trump Court went down. It did not perform the analysis seemingly called for by the Barrett/Whittington/Barr approach, which would be to ask whether the application of the particular statutes under which Trump was charged to the facts alleged in the indictment would impermissibly burden the exercise of executive power. Instead, it simply declared that at least “core” presidential acts were categorically exempt from congressional regulation, including the operation of any federal criminal law. This means that whatever acts fall within this category (a question that remains murky) cannot be prosecuted even if they would otherwise violate a federal criminal law, including (apparently) laws against treason, bribery or murder. This places the president above the law, violates the plain meaning of the Constitution, and is borderline insane.
The Court does not reach this result by following Fitzgerald’s approach of balancing the constitutional interests of the presidency with the public/congressional interest in ensuring compliance with the law. Instead, it seems to have taken various pro-executive power statements from past precedents and decided with little analysis that within the scope of his “conclusive and exclusive” authority the president cannot be required to comply with the law at all. As Professor Goldsmith explained on the Lawfare podcast, the Court “describes the president’s power in robust terms like I’ve never seen any other opinion do.” The Court, he explains, “basically brought together every pro-president executive opinion and kind of strung them together and expanded them in a few ways along several margins.”
The result is an opinion that goes well beyond the narrow theory advanced by Barr. Unlike Barr, it seems the Trump Court would consider Nixon’s discussions of granting clemency to Watergate co-conspirators as absolutely protected. It would also seem that a president could induce someone to commit a crime by promising them a pardon in advance (not completely a hypothetical situation) and suffer no legal consequences. And evidently a president can use his “conclusive and exclusive” authority over the Department of Justice to direct its officials to commit crimes (or what would be crimes if committed by anyone else). We might as well rename DOJ “Bendini, Lambert & Locke” (that’s the name of the mob front law firm in “The Firm,” for those too lazy to google).
There is good news, though. We can shutter OLC because there will be no more need for the fig leaf.
In my next post I will discuss the other holdings of the Trump case.