The Supreme Court’s Irresponsible Murkiness Over Whether the President Could Remove His Attorney General by Poisoning Him in the New Trump Immunity Case

Stickyauthoritarian threats in US

Under the Supreme Court’s ruling in yesterday’s Trump v. United States case, does an official act clearly within the power of the president to undertake become an “unofficial act” not subject to immunity if the President uses what would be otherwise illegal means to carry it out? As Justice Jackson wrote in her dissent: “While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.” Id. at n.5 (Jackson, J. dissenting). Surprisingly, the Court does not directly answer this question. Nor does the majority respond to this part of Justice Sotomayor’s dissent: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

The majority inexplicably does not respond to these points directly, leaving a huge hole in our understanding and a pathway to presidential abuse. The majority divided potential immunity claims into three buckets. For what the Court considered “core” presidential functions, including speaking with officials at the United States Department of Justice, absolute immunity is appropriate. For cases involving the use of presidential power up to the “outer perimeter” of presidential power, there is a presumption of absolute immunity. Under this presumption, “the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” There is no immunity for unofficial acts.

The Court was not clear on whether using what would appear to be illegal means to commit an act that is clearly within the power of the President could count as unofficial and be prosecuted. It was only clear that in prosecuting an unofficial act, one could not rely on proof through official acts. It seems to me that a prohibition on using murder to remove a government official from office and criminal prosecution for that action would “pose no dangers of intrusion on the authority and functions of the executive branch.” But the Court should have been clear on this. And it would be odd to call that an “unofficial act.” Better to say it’s an official act committed by otherwise unlawful means that gets no immunity. That principle would cover the poisoning, Seal Team Six, and bribe for pardon cases.

This lack of clarity seems irresponsible and dangerous.

UPDATE: Some point me to footnote 3 of the majority’s opinion, which at least implicitly suggests (without saying how this could work) that the President could be prosecuted in a pardons for bribery scheme:

Justice BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at –––– (opinion concurring in part); cf. post, at –––– – –––– (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U.S.C. § 201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U.S., at 745, 756, 102 S.Ct. 2690 (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 40 L.Ed. 780 (1896)); see supra, at ––––. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U.S. 786, 805, 140 S.Ct. 2412, 207 L.Ed.2d 907 (2020)

It’s a pretty thin reed to make the argument when the Court in stating its rules does not explicitly say that of course the President cannot poison his attorney general to remove him from office.

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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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“Ruling Further Slows Trump Election Case but Opens Door to Airing of Evidence”

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NYT:

The Supreme Court’s decision on Monday about executive immunity makes it all but certain that former President Donald J. Trump will not stand trial on charges of seeking to overturn the last election before voters decide whether to send him back to the White House in the next one.

But the ruling also opened the door for prosecutors to detail much of their evidence against Mr. Trump in front of a federal judge — and the public — at an expansive fact-finding hearing, perhaps before Election Day.

It remains unclear when the hearing, which was ordered as part of the court’s decision, might take place or how long it would last.

But it will address the big question that the justices kicked back to the trial court, which is how much of Mr. Trump’s indictment can survive the ruling that former presidents enjoy immunity for official actions they take in office. And it will be held in Federal District Court in Washington in front of the judge, Tanya S. Chutkan, who was handling the case before it was frozen more than six months ago as a series of courts considered his immunity claims.

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“Supreme Court’s Trump immunity ruling poses risk for democracy, experts say”

authoritarian threats in US, election subversion risk, Supreme Court

WaPo:

In its immunity decision Monday, the Supreme Court emphasized the long-cherished ideal that no one in America is above the law, not even the president.

The court’s dissenters and a chorus of critics said the majority had undercut that notion, elevating the president to a king who can easily avoid prosecution. They warned of future presidents unbound from the rule of law who could freely engage in criminal activity. And they pointed to the prospect of a second term for Donald Trump — the man whose indictment on charges related to his efforts to overturn the 2020 election prompted the Supreme Court to weigh in — as a moment when their worst fears could be realized.

“If a future president sitting in the Oval Office were to want to commit crimes, up to and including subverting an election or remaining in power against the will of the American people, this opinion, in my mind, could provide a road map for that,” said David Becker, the executive director of the Center for Election Innovation and Research.

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“Cash Crunch Squeezes Kennedy Amid Costly Fight for Ballot Spots”

ballot access, campaign finance

NYT:

Robert F. Kennedy Jr.’s independent presidential campaign is spending heavily, amassing steep debts and resorting to layoffs as it becomes almost singularly focused on the costly effort of placing his name on state ballots.

The troubles, laid bare in federal filings and interviews with nine people with knowledge of the campaign’s activities, have left little money for events and other traditional campaign priorities, leading to a growing sense of alarm among some staff members and longtime supporters. Fund-raising has slowed, and the campaign has become reliant on Mr. Kennedy’s wealthy running mate, Nicole Shanahan, who last month put $2.5 million more into their campaign.

As the campaign struggles, allies of Mr. Kennedy have been quietly raising money into a new organization to support legal challenges to ballot access, according to records and interviews, effectively creating a separate financing operation.

‘The ballot litigation group — called the Ballot Freedom Fund and set up in May in Delaware by a lawyer with ties to Mr. Kennedy’s campaign — could ease the financial pressure on the campaign, which otherwise would have to foot legal bills itself. The group, a tax-exempt political organization, can raise unlimited amounts of money but is not allowed to coordinate with the campaign….’The ballot litigation group — called the Ballot Freedom Fund and set up in May in Delaware by a lawyer with ties to Mr. Kennedy’s campaign — could ease the financial pressure on the campaign, which otherwise would have to foot legal bills itself. The group, a tax-exempt political organization, can raise unlimited amounts of money but is not allowed to coordinate with the campaign….’The creation of the Ballot Freedom Fund is the latest example of a growing trend of federal campaigns offloading expenses to outside organizations — groups that can take checks of unlimited size but are legally barred from direct coordination with a campaign.

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Utah Supreme Court blocks federal candidate age limit initiative from ballot

voter initiatives

North Dakota voters recently approved an initiative that would bar congressional candidates over the age of 81 from serving in office (even if it’s unconstitutional under U.S. Term Limits, Inc. v. Thornton). A similar effort was attempted in Utah, but it won’t appear on the ballot. Here’s the Utah Supreme Court’s unanimous decision in Phillips v. Henderson:

Ian Daniel Phillips and a group of Utah voters (collectively, the Sponsors) wish to initiate state legislation that would place an age limit on Utah candidates for federal office. The Lieutenant Governor rejected the Sponsors’ initiative application after concluding that, under U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the proposed law was “patently unconstitutional” or “could not become law if passed,” see UTAH CODE § 20A-7-202(5). In Thornton, the United States Supreme Court held that the federal Constitution forbids states from enacting laws imposing qualifications on candidates for federal congressional office. 514 U.S. at 800.

After their initiative application was rejected, the Sponsors sued the Lieutenant Governor. The Sponsors sought a declaration that the initiative is not patently unconstitutional and could become law if enacted because Thornton either did not apply or should be overruled. The district court rejected both arguments, ruling that the Sponsors were not entitled to relief, because the proposed initiative is “squarely foreclosed by” Thornton, a decision that the court had no authority to overrule. Accordingly, the district court dismissed the Sponsors’ complaint for failure to state a claim upon which relief can be granted.

On appeal, the Sponsors maintain that Thornton should be overruled because its prohibition on state-created qualifications for federal officeholders violates the Tenth Amendment of the United States Constitution. But because the Sponsors recognize that this court lacks authority to overturn Thornton, they ask us to affirm the district court’s decision, thereby paving the way for them to petition the United States Supreme Court for review.

The Lieutenant Governor also urges us to affirm, but she questions whether appellants who seek an affirmance have standing on appeal. We hold that appellants who concede that they cannot prevail at a particular stage on appeal have appellate standing so long as they had traditional standing in the district court, were a party or privy to that action, and were aggrieved by the district court’s judgment. The Sponsors meet each of these requirements and therefore have appellate standing. And because controlling federal law precludes the Sponsors’ requested relief, we affirm the district court’s ruling on the merits.

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My New Slate Piece on Today’s NetChoice Social Media Cases: “The First Amendment Just Dodged an Enormous Bullet at the Supreme Court”

First Amendment theory, social media and social protests, Supreme Court
I have written this piece for Slate. It begins: At Supreme Court oral argument in the Texas social media case back in February, Justice Samuel Alito asked the question: “Let’s say YouTube were a newspaper, how much would it weigh?”… Continue reading