Totally correct and absolutely cogent on all points. (Also almost too easy and obvious to need saying—except that seems to be where we find ourselves.)
I am a big fan, but I think this piece is a miss. There is a deep and well-developed jurisprudence over sovereign immunity, and this brief overview doesn't engage with it. The result in Trump v. U.S. is not novel and shouldn't be a surprising result. Sovereign immunity is practically universal, and it is both ancient ("you cannot sue the king in his own court") and current: Barack Obama made use of the doctrine in blocking legal action over drone strikes. "No one should be above the law" is a far too simplistic take on this complicated issue, and it certainly doesn't authorize the president do assassinate political opponents. But I always appreciate your thoughtfulness and analytic detail even when I disagree.
Sovereign immunity may indeed be universal in monarchies and other dictatorships, but the U.S. was specifically supposed to not be a monarchy. The founders were constantly trying to stop abuse of power, and up until this recent decision, no one in America thought that the President would be immune from criminal prosecution.
After the Nixon Watergate scandal, people assumed Nixon was going to be prosecuted; that's why Ford had to pardon him. When Obama took office, people urged him to prosecute Bush for authorizing torture. He declined to do so because he said it would be divisive; neither he nor anyone else that I recall even hinted that he couldn't do it because maybe Bush was immune. When Anwar al-Awlaki's father sued the Obama administration, the case was dismissed for lack of standing (but this is not relevant to criminal prosecution). Obama's justice department wrote up a memo explaining why, in their opinion, these drone strikes did not count as murder. They did not claim that the President was allowed to murder, and I don't recall Obama ever claiming to be immune from prosecution.
Sotomayor's dissent provides lots more evidence that the President was supposed to be accountable to the criminal law. Even the majority opinion does not claim that Presidential immunity is well-established in U.S. law; they say the issue hasn't previously been addressed.
The best I can figure is that the USSC is now taken over by the Republican strain of Trump Derangement Syndrome, a phenomenon where a Republican will do anything to serve Trump.
“ordering the Attorney General to conduct sham investigations to try to intimidate election officials is fine.”
If it isn’t fine, what is the superior alternative? Must the president have his orders vetted by some separate authority before the attorney general follows them? How can this sort of punitive investigation be prevented without in effect putting the Justice dept. under the authority of some other entity?
While it is true that being investigated for spurious reasons is a harm, is it such a serious harm that we need to try to prevent it? If the president initiates pointless investigations of any official that causes inconvenience, won't this just result in a lot of investigations that conclude that nothing is wrong? And won’t that be ammunition for the president's opponents to use against him/her? Investigations against Trump do not seem groundless, yet some are attacking Biden for or these for political purposes.
I am all for reducing the powers of the president. But given the current reasoning behind the president's role, it seems that allowing arbitrary investigations is the least bad option. The existing system assumes that the president uses some judgment to decide what deserves investigation by the justice department. If not the president, then who?
a) Normally the Attorney General just does his job; he doesn't need the President telling him, for every case, whether it should or shouldn't be pursued. That's what we have the AG and all the federal investigators for.
b) The problem in this case isn't that Trump might harm someone by frivolously investigating them. I.e., the problem isn't the harm to the target. The problem is that, allegedly, he was trying to intimidate people into falsifying election results. So he shouldn't be allowed to do that, regardless of whether he uses the powers of his office to do it.
c) The "superior alternative" would be that, if the President uses his powers to commit a crime, he can be prosecuted for it. This does not require creating any new authority or vetting all of the President's orders. Rather, if he commits a crime, then, after the fact, and if a prosecutor has evidence to prove it, he can be prosecuted.
“Normally the Attorney General just does his job;”
I had assumed that the executive has authority over all executive functions, and delegates to the various cabinet members and subordinate bureaucrats.
So would this mean that in no case would the president be justified in ordering an investigation? And therefore we should prohibit presidents from doing this? How about suggesting it? Encouraging it?
“the problem isn't the harm to the target”
If there were no potential harm to the target, how could there be intimidation? An investigation can inconvenience an innocent actor, but is that sufficient to intimidate them?
“if the President uses his powers to commit a crime, he can be prosecuted for it.”
So ordering the AG to investigate someone should amount to a crime (extortion?) if there had been some prior threat similar to “do x or I will order the AG to investigate you,” only not if x consists of some form of “do your duty” or “refrain from doing this illegal thing”.
And if there had never been any such threat, would there be a crime? If Trump just decided he didn’t like me, and ordered the AG to investigate me, would that be a crime? I suppose if that was truly his only reason, it would count as an abuse of power. Should I have recourse, other than to take my case to the press and try to embarrass him? (In Trump's case, embarrassment is apparently impossible.)
No, we don't need any new laws or prohibitions, nor do we need any new government offices or procedures. We just need to *not* have a special new law that says "the President gets to violate any of the other laws, as long as he uses the powers of his office to do it". That's it. That's all this post advocates for. If something is *already* illegal, then the President shouldn't get to do it just because he's the President.
Say you underpaid your taxes. Then an IRS agent will investigate and send you a bill for the amount you owe. This isn't because President Biden called up that agent and told him to investigate you. Biden doesn't have to do that, and he has lots of other things to do with his time. Rather, the agent is just doing his job. That's how things normally work. In saying that, I'm not saying that the President isn't allowed to talk to IRS agents in general. I merely think that if the President, in talking to IRS agents, is doing something that is already, independently illegal, then it should remain illegal.
I also didn't say that ordering a sham investigation of someone *doesn't harm* the person. I said that the harm to that person isn't the problem in this case. Rather, the problem in this case is that the President was doing it *in order to steal the election* by getting local election officials to falsify the results. In a democracy, leaders can't be allowed to use the powers of their office to dictate that they be deemed the winner of their own election. If that happens, that's the end of democracy.
I'm not making any claims about any other situations in which the President might want to talk to election officials or executive department officials for completely different, legal purposes.
I understand your conclusion is that the decision is bad and the president should not have such broad immunity. I agree with your conclusion.
I am challenging the part of the argument that says this immunity is bad because it permits the president to order punitive investigations that previously were prohibited. I’m skeptical that such investigations were previously prohibited, or if they were technically prohibited that this had any practical effect.
I don’t think such investigations can easily be detected or responded to, unless the president announced his intent to abuse power. Impeachment was the primary recourse against this and it remains. I’m unaware of any sanctions eliminated by this decision. How does this decision change the situation?
Prior to this decision, was the president vulnerable to being accused by his subordinates, or by state or local officials, for ordering a punitive investigation? Would such accusations take the form of an appeal to congress to impeach, or a request for the appointment of a special prosecutor , or an ordinary justice department investigation and indictment? Impeachment and investigation by congress remain available, and the other possibility seems unlikely to have ever been employed.
It would help if I remembered the events of the Watergate scandal. Was it Congress or the justice department that initiated the special investigation? I think it was congress. If it was the justice department, I am wrong.
It was mentioned that one might sue for malicious prosecution. But we are discussing malicious investigation. Presumably, the investigation would only proceed to a prosecution if the investigators found some evidence of a crime.
The investigation itself can be a burden, even if it doesn’t result in a prosecution. Perhaps it violates some constitutional right to investigate a person on a whim? Would that provide an effective defense for an otherwise guilty defendant - “hey I am obviously guilty, but there was no good reason to begin investigating me “?
If the President orders an investigation of you just because he doesn't like you, that probably isn't a crime. You should be able to sue him for "malicious prosecution", but under current USSC doctrine, you can't.
Am I wrong, or is it the case that nothing in the decision prevents Congress from impeaching the president and convicting him/her for any of the acts done under immunity?
This approach has the flaw that there may not be time to impeach and convict before the president's term ends. Can congress impose penalties other than expulsion from office? Can they convict or penalize a president after his/her term of office has ended? Could congress expel Trump from office during his second term for offenses committed during or previous to his first term?
The decision does not discuss the impeachment power (except to note that impeachment is not a prerequisite for a President to be prosecuted, as Trump's lawyers claimed).
You might think we can assume that Congress therefore retains unlimited power to impeach Trump for anything. But I wouldn't assume that, since the same arguments the SCOTUS used in this case could be deployed, with about equal plausibility, to show that the President must be immune from impeachment for official acts that exercise "core powers", etc. If Trump were to get impeached, and he challenged his impeachment in court, I'm not sure the Supreme Court wouldn't try to overrule Congress.
Totally correct and absolutely cogent on all points. (Also almost too easy and obvious to need saying—except that seems to be where we find ourselves.)
I am a big fan, but I think this piece is a miss. There is a deep and well-developed jurisprudence over sovereign immunity, and this brief overview doesn't engage with it. The result in Trump v. U.S. is not novel and shouldn't be a surprising result. Sovereign immunity is practically universal, and it is both ancient ("you cannot sue the king in his own court") and current: Barack Obama made use of the doctrine in blocking legal action over drone strikes. "No one should be above the law" is a far too simplistic take on this complicated issue, and it certainly doesn't authorize the president do assassinate political opponents. But I always appreciate your thoughtfulness and analytic detail even when I disagree.
Sovereign immunity may indeed be universal in monarchies and other dictatorships, but the U.S. was specifically supposed to not be a monarchy. The founders were constantly trying to stop abuse of power, and up until this recent decision, no one in America thought that the President would be immune from criminal prosecution.
After the Nixon Watergate scandal, people assumed Nixon was going to be prosecuted; that's why Ford had to pardon him. When Obama took office, people urged him to prosecute Bush for authorizing torture. He declined to do so because he said it would be divisive; neither he nor anyone else that I recall even hinted that he couldn't do it because maybe Bush was immune. When Anwar al-Awlaki's father sued the Obama administration, the case was dismissed for lack of standing (but this is not relevant to criminal prosecution). Obama's justice department wrote up a memo explaining why, in their opinion, these drone strikes did not count as murder. They did not claim that the President was allowed to murder, and I don't recall Obama ever claiming to be immune from prosecution.
Sotomayor's dissent provides lots more evidence that the President was supposed to be accountable to the criminal law. Even the majority opinion does not claim that Presidential immunity is well-established in U.S. law; they say the issue hasn't previously been addressed.
I'm remembering your article on how most jury decisions should be trusted. Do you have ideas on why the supreme court came to this decision?
The best I can figure is that the USSC is now taken over by the Republican strain of Trump Derangement Syndrome, a phenomenon where a Republican will do anything to serve Trump.
“ordering the Attorney General to conduct sham investigations to try to intimidate election officials is fine.”
If it isn’t fine, what is the superior alternative? Must the president have his orders vetted by some separate authority before the attorney general follows them? How can this sort of punitive investigation be prevented without in effect putting the Justice dept. under the authority of some other entity?
While it is true that being investigated for spurious reasons is a harm, is it such a serious harm that we need to try to prevent it? If the president initiates pointless investigations of any official that causes inconvenience, won't this just result in a lot of investigations that conclude that nothing is wrong? And won’t that be ammunition for the president's opponents to use against him/her? Investigations against Trump do not seem groundless, yet some are attacking Biden for or these for political purposes.
I am all for reducing the powers of the president. But given the current reasoning behind the president's role, it seems that allowing arbitrary investigations is the least bad option. The existing system assumes that the president uses some judgment to decide what deserves investigation by the justice department. If not the president, then who?
Some notes:
a) Normally the Attorney General just does his job; he doesn't need the President telling him, for every case, whether it should or shouldn't be pursued. That's what we have the AG and all the federal investigators for.
b) The problem in this case isn't that Trump might harm someone by frivolously investigating them. I.e., the problem isn't the harm to the target. The problem is that, allegedly, he was trying to intimidate people into falsifying election results. So he shouldn't be allowed to do that, regardless of whether he uses the powers of his office to do it.
c) The "superior alternative" would be that, if the President uses his powers to commit a crime, he can be prosecuted for it. This does not require creating any new authority or vetting all of the President's orders. Rather, if he commits a crime, then, after the fact, and if a prosecutor has evidence to prove it, he can be prosecuted.
“Normally the Attorney General just does his job;”
I had assumed that the executive has authority over all executive functions, and delegates to the various cabinet members and subordinate bureaucrats.
So would this mean that in no case would the president be justified in ordering an investigation? And therefore we should prohibit presidents from doing this? How about suggesting it? Encouraging it?
“the problem isn't the harm to the target”
If there were no potential harm to the target, how could there be intimidation? An investigation can inconvenience an innocent actor, but is that sufficient to intimidate them?
“if the President uses his powers to commit a crime, he can be prosecuted for it.”
So ordering the AG to investigate someone should amount to a crime (extortion?) if there had been some prior threat similar to “do x or I will order the AG to investigate you,” only not if x consists of some form of “do your duty” or “refrain from doing this illegal thing”.
And if there had never been any such threat, would there be a crime? If Trump just decided he didn’t like me, and ordered the AG to investigate me, would that be a crime? I suppose if that was truly his only reason, it would count as an abuse of power. Should I have recourse, other than to take my case to the press and try to embarrass him? (In Trump's case, embarrassment is apparently impossible.)
No, we don't need any new laws or prohibitions, nor do we need any new government offices or procedures. We just need to *not* have a special new law that says "the President gets to violate any of the other laws, as long as he uses the powers of his office to do it". That's it. That's all this post advocates for. If something is *already* illegal, then the President shouldn't get to do it just because he's the President.
Say you underpaid your taxes. Then an IRS agent will investigate and send you a bill for the amount you owe. This isn't because President Biden called up that agent and told him to investigate you. Biden doesn't have to do that, and he has lots of other things to do with his time. Rather, the agent is just doing his job. That's how things normally work. In saying that, I'm not saying that the President isn't allowed to talk to IRS agents in general. I merely think that if the President, in talking to IRS agents, is doing something that is already, independently illegal, then it should remain illegal.
I also didn't say that ordering a sham investigation of someone *doesn't harm* the person. I said that the harm to that person isn't the problem in this case. Rather, the problem in this case is that the President was doing it *in order to steal the election* by getting local election officials to falsify the results. In a democracy, leaders can't be allowed to use the powers of their office to dictate that they be deemed the winner of their own election. If that happens, that's the end of democracy.
I'm not making any claims about any other situations in which the President might want to talk to election officials or executive department officials for completely different, legal purposes.
I understand your conclusion is that the decision is bad and the president should not have such broad immunity. I agree with your conclusion.
I am challenging the part of the argument that says this immunity is bad because it permits the president to order punitive investigations that previously were prohibited. I’m skeptical that such investigations were previously prohibited, or if they were technically prohibited that this had any practical effect.
I don’t think such investigations can easily be detected or responded to, unless the president announced his intent to abuse power. Impeachment was the primary recourse against this and it remains. I’m unaware of any sanctions eliminated by this decision. How does this decision change the situation?
Prior to this decision, was the president vulnerable to being accused by his subordinates, or by state or local officials, for ordering a punitive investigation? Would such accusations take the form of an appeal to congress to impeach, or a request for the appointment of a special prosecutor , or an ordinary justice department investigation and indictment? Impeachment and investigation by congress remain available, and the other possibility seems unlikely to have ever been employed.
It would help if I remembered the events of the Watergate scandal. Was it Congress or the justice department that initiated the special investigation? I think it was congress. If it was the justice department, I am wrong.
It was mentioned that one might sue for malicious prosecution. But we are discussing malicious investigation. Presumably, the investigation would only proceed to a prosecution if the investigators found some evidence of a crime.
The investigation itself can be a burden, even if it doesn’t result in a prosecution. Perhaps it violates some constitutional right to investigate a person on a whim? Would that provide an effective defense for an otherwise guilty defendant - “hey I am obviously guilty, but there was no good reason to begin investigating me “?
If the President orders an investigation of you just because he doesn't like you, that probably isn't a crime. You should be able to sue him for "malicious prosecution", but under current USSC doctrine, you can't.
Am I wrong, or is it the case that nothing in the decision prevents Congress from impeaching the president and convicting him/her for any of the acts done under immunity?
This approach has the flaw that there may not be time to impeach and convict before the president's term ends. Can congress impose penalties other than expulsion from office? Can they convict or penalize a president after his/her term of office has ended? Could congress expel Trump from office during his second term for offenses committed during or previous to his first term?
The decision does not discuss the impeachment power (except to note that impeachment is not a prerequisite for a President to be prosecuted, as Trump's lawyers claimed).
You might think we can assume that Congress therefore retains unlimited power to impeach Trump for anything. But I wouldn't assume that, since the same arguments the SCOTUS used in this case could be deployed, with about equal plausibility, to show that the President must be immune from impeachment for official acts that exercise "core powers", etc. If Trump were to get impeached, and he challenged his impeachment in court, I'm not sure the Supreme Court wouldn't try to overrule Congress.