Is presidential poisoning of an AG absolutely immune?

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I wrote the following originally as a nonpublic email but subsequently have been asked to make it publicly available. I do so in the spirit that deliberation among scholars about a new Supreme Court opinion as important as the presidential immunity case will lead to better collective enlightenment on the topic, and thus these preliminary views are necessarily tentative and subject to revision upon further reflection, dialogue, and deliberation.

On Rick’s concern about a president poisoning the Attorney General (or the Seal Team Six hypo, which I obliquely address in my post on Presidential Immunity and Partisan Primaries), I think it’s defensible that the Court did not address specific hypothetical cases not before the Court in this case; after all, anything the Court said about those other circumstances would be dicta.

More broadly, I think that we should not hold the Court responsible for the failure of Congress to disqualify Trump from a return to the presidency. The Court has been criticized, both after the oral argument and now after its decision, for deciding this case based on principles that necessarily apply more broadly than just Trump’s own conduct. But I think that criticism is unwarranted. Whatever one thinks appropriate presidential immunity law should be, the Court shouldn’t distort or shape that law just because Trump’s potential reelection is a threat to democracy (as I, among so many others, believe it is). 

It has been a huge mistake, in my view, to try to rely upon criminal prosecution of Trump as the way to derail his reelection. First, the Senate should have convicted Trump, ending the threat of his return to power. After that failed, Congress should have passed a statute to enforce section 3 of the Fourteenth Amendment. (Even though in the Colorado case, I took the position—and still believe—that a congressional statute of this nature wasn’t constitutionally necessary for the Court to reach the merits of the section 3 issue there, it still would have been much better if Congress had explicitly mandated judicial resolution of the section 3 issue.)  Those two avenues would have been the appropriate way to prevent the potential threat to the Republic from Trump’s reelection. 

Whether the criminal prosecution of Trump for his attempt to subvert the 2020 election should move fast or slow should be determined, in my view, entirely by considerations relevant to fair criminal procedure and not at all with respect to electoral politics. With respect to the substantive merits of the prosecution of Trump in the January 6 case, what posture is it in after yesterday’s immunity decision? Based on my reading of the majority opinion, not in the dire posture that I’ve seen some commentators suggest. Much of what’s alleged in the indictment potentially still can go forward, including Trump’s attempt to pressure Pence. (I agree with Barrett that the Court could have declared itself that Trump’s effort to organize alternative electors was unofficial conduct not entitled to any immunity, but that determination is still open on remand, and so again the only “problem” there is a timing one.) 

Without opining on specific hypothetical fact patterns, the Court needed to articulate an immunity doctrine applicable to President Biden as well as President Trump (and all future presidents). It’s not the doctrine that I would have crafted, but it’s not a crazy doctrine. What will matter going forward is how the Court handles the presumption of immunity it’s created for all official acts and how hard or easy it will be to overcome that presumption. It will also matter how the Court distinguishes between official and unofficial conduct. At some point, I may have more to say about Trump’s and the Court’s invocation of the role of President Grant in the 1876 election, as that’s a matter I know something about from my research for Ballot Battles. And, to Rick’s point, it will be necessary for the Court to clarify how to apply its doctrine of absolute immunity for “core” presidential powers—the kind that Justice Robert Jackson’s concurrence in Youngstown put off-limits for any congressional oversight. But I don’t think immunity from the exercise of even a core power absolutely immunizes conduct related to the exercise of the core power that is not itself within the zone of the core, as the example of accepting a bribe in exchange for a presidential pardon shows. I think it’s fairly straightforward to analyze poisoning the AG in the same way: officially dismissing the AG is core, and there can be no punishment for the dismissal itself pursuant to a corrupt motive; poisoning the AG in order to remove him is not core and should easily overcome any presumption of immunity in connection with an official act, even assuming the presumption would be applicable to a presidential directive to a White House staffer to “rid” the president of this “meddlesome” AG by means of poisoning. 

But exactly how the doctrine should apply to future hypothetical cases should be left to those cases if they ever should arise actually (which of course we all hope that they won’t).

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The Electoral Count Reform Act and related provisions in Trump v. United States

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While serving as mere background and description in places, the majority opinion offers some statements that, I imagine, lower courts might find useful in the event future disputes arise relating to presidential elections. From the opinion:

. . . Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. . . .

. . . When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14. . . .

(It’s worth noting this framing of the Vice President’s role is consistent with the federal district court in favor of Mike Pence last year. And it does call to mind these remarks from then-Vice Presidential candidate Joe Biden in 2008, “Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that. . . . The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us.”)

Indeed, the Constitution commits to the States the power to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2; see Burroughs v. United States, 290 U. S. 534, 544 (1934). “Article II, §1’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” Chiafalo v. Washington, 591 U. S. 578, 588–589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, §1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, §1, cl. 2.

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Must-read Adam Liptak: “In a Volatile Term, a Fractured Supreme Court Remade America” (Gift Link)

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Must-read Adam Liptak NYT analysis of the just-completed Supreme Court term:

Former President Donald J. Trump had a very good year at the Supreme Court. On Monday, the court ruled that he is substantially immune from prosecution on charges that he tried to subvert the 2020 election. On Friday, the court cast doubt on two of the four charges against him in what remains of that prosecution. And in March, the justices allowed him to seek another term despite a constitutional provision barring insurrectionists from holding office.

Administrative agencies had a horrible term. In three 6-to-3 rulings along ideological lines, the court’s conservative supermajority erased a foundational precedent that had required courts to defer to agency expertise, dramatically lengthened the time available to challenge agencies’ actions and torpedoed the administrative tribunals in which the Securities and Exchange Commission brings enforcement actions.

The court itself had a volatile term, taking on a stunning array of major disputes and assuming a commanding role in shaping American society and democracy. If the justices felt chastened by the backlash over their 2022 abortion decision, the persistent questions about their ethical standards and the drop in their public approval, there were only glimmers of restraint, notably in ducking two abortion cases in an election year.

The court was divided 6 to 3 along partisan lines not only in Monday’s decision on Mr. Trump’s immunity and the three cases on agency power, but also in a run of major cases on homelessness, voting rights, guns and public corruption.

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“Giuliani Disbarred From the Practice of Law in New York”

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NYT:

Rudolph W. Giuliani — the former mayor of New York, top federal prosecutor and a longtime ally of former President Donald J. Trump — has been disbarred from the practice of law effective immediately, a New York State appellate court ruled on Tuesday.

The ruling continued the downfall of a disgraced lawyer who once portrayed himself as a crusader for law and order, challenged mob bosses and Wall Street operators and, after the Sept. 11 terror attacks, became, for many, a national hero.

Mr. Giuliani, 80, has filed for bankruptcy, faces indictment in Arizona and Georgia in election cases and owes $148 million to two Georgia election workers stemming from a judgment in a defamation lawsuit.

The 31-page order disbarring Mr. Giuliani from practicing law in New York focused on his work as the personal lawyer for Mr. Trump and his 2020 presidential campaign. It said Mr. Giuliani was being disciplined for lies he told in numerous forums that were “designed to create distrust of the elective system of our country in the minds of the citizens and to destroy their confidence in the legitimacy of our government.”

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In New Supreme Court Social Media Case, Echoes of Citizens United on “AntiDistortion” and the Foreign Campaign Spending Ban, with Implications for Shutting Down Tik-Tok

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I want to pick up a point first flagged yesterday by Eugene Volokh from yesterday’s decision in Moody v. NetChoice that could have relevance to new legislation, currently being challenged in court, that could ban Tik-Tok as being foreign owned. Some lines in Justice Barrett’s concurrence makes it more likely the Court would uphold a Tik-Tok ban, if the issue makes it to the Supreme Court.

I need to give a bit of wonky background to set the stage (and I’m writing about this more extensively in a larger piece that will post in a few weeks).

The Supreme Court has long rejected the idea in the campaign finance context that one could limit the speech of some to enhance the relative voice of others. The Court made such a statement first in the 1976 case, Buckley v. Valeo, and it played a major role in the Supreme Court’s 2010 Citizens United case. The idea of equalizing campaign spending to prevent distortion of the political marketplace became known as the “antidistortion” rationale, and it figured heavily in the 1990 Austin v. Michigan Chamber of Commerce case upholding a requirement that corporations use PACs for their political spending and not their general treasury funds. Citizens United emphatically rejected this antidistortion rationale, overturning Austin. It held corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for office.

In part of his dissent in Citizens United, Justice Stevens raised the issue of spending by foreign individuals, governments, and entities. Federal law bars such spending, but Stevens suggested Citizens United raised the question whether such a ban by foreign corporations violated the First Amendment too. Justice Kennedy’s majority opinion in Citizens United explicitly said it was not reaching the issue.

Just a year later, a three judge court, in an opinion in Bluman v. FEC by then-judge Brett Kavanaugh upheld the foreign spending ban, saying it was justified by the government’s compelling interest in “democratic self-government.” The Supreme Court summarily affirmed, without any opinion and with no dissents. I’ve long criticized the Supreme Court for not explaining how the corporate ban could be forbidden but the foreign spending ban is just fine.

Fast forward to yesterday’s Moody decision. There was this particularly notable line from Justice Kagan’s majority opinion (who as solicitor general argued Citizens United on behalf of the government, but did not endorse the antidistortion rationale), citing Buckley, affirming the rejection of the antidistortion rationale:

But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction.” Sorrell v. IMS Health Inc., 564 U.S. 552, 578–579, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess “enviable vehicle[s]” for expression. Hurley, 515 U.S. at 577, 115 S.Ct. 2338. In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana. That is why we have said in so many contexts that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.” Buckley v. Valeo, 424 U.S. 1, 48–49, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). That unadorned interest is not “unrelated to the suppression of free expression,” and the government may not pursue it consistent with the First Amendment.

Justice Amy Coney Barrett joined the majority opinion that opined on how a state ban on content moderation applied to social media platforms likely violated the First Amendment. But she added some caveats and issues for future cases, including this observation, citing Citizens United:

There can be other complexities too. For example, the corporate structure and ownership of some platforms may be relevant to the constitutional analysis. A speaker’s right to “decide ‘what not to say’ ” is “enjoyed by business corporations generally.” Hurley, 515 U.S. at 573–574, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986)). Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves. See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 365, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010); cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706–707, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). But foreign persons and corporations located abroad do not. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 591 U.S. 430, 433–436, 140 S.Ct. 2082, 207 L.Ed.2d 654 (2020). So a social-media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform’s corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.

So we see here the same parallel move as in Citizens United. Reject the antidistortion rationale applied to corporations, but note that the rules might be different for foreign corporations, and limits on certain foreign corporations may not violate the First Amendment as they would for domestic corporations.

Surely this will play a role in the Tik-Tok litigation.

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Presidential Immunity and Partisan Primaries

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New Common Ground Democracy essay on yesterday’s SCOTUS decision, with this subtitle: “The effort to prosecute Trump criminally is a consequence of the Senate’s failure to convict him in the impeachment case, and why did the Senate fail in this? The fear of being primaried.”

It begins: “You might think that the Supreme Court’s presidential immunity decision has little or nothing to do with the need to eliminate partisan primaries in congressional elections, but in fact they are very much related.”

The essay relies heavily on the important point about incentives that Kevin Kosar made in last week’s webinar. This incentives point is yet another key reason why in this “hair on fire” moment there is even greater need to eliminate partisan primaries.

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