At present, there are at least three prominent investigations in which a prosecutor is investigating his or her political opponent.

First, District Attorney Fani Willis, of Fulton County Georgia was investigating republican State Senator Burt Jones. After the 2020 election, Jones had signed an electoral certificate stating that Trump won the Peach state. Jones is now running for state Lieutenant Governor. Willis, a Democrat, hosted a fundraiser for Jones' Democratic opponent in the LG race. Due to this conflict of interest, a superior court judge disqualified Willis from questioning Jones. The judge said that decision to host the fundraiser was "a 'What are you thinking?' moment with 'horrible' optics." Yet Willis apparently saw nothing wrong with fundraising for the opponent of the person she was investigating.

Second, in Michigan, Matthew DePerno is the presumptive Republican nominee for Attorney General. There are allegations that after the 2020 election, DePerno told election clerks that he needed to inspect election equipment. Now, Nessell, who will likely face DePerno in the general election this fall, has begun an investigation against DePerno. According to the New York Times, the Attorney General's office "requested that a special prosecutor be appointed to continue the investigation and pursue potential criminal charges." You can read the petition here.

The statute does not explain if the Attorney General retains any supervisory authority over the special prosecuting attorney. But if the federal special counsel regulations are any indication, these investigations tend to take on a life of their own. Even Robert Mueller became Inspector Javert.

Speaking of special counsels, let's talk about the third prosecutor who is investigating his political opponent. Of course, I speak about the raid on Mar-A-Lago. According to early reports, the investigation concerns Trump's handling of classified documents.  I have no doubt that Garland weighed this decision at some length before he signed off on the search. Will this search lead to an indictment? Who knows. But the optics here are stark: the chief law enforcement officer of the Biden administration is searching the home of the front-runner for the 2024 republican ticket.

Several commentators have suggested that Trump should announce his candidacy early--before the midterms--to pre-empt any indictments. The thinking goes that DOJ would not prosecute President Biden's opponent in the run-up to the election. I think this thinking is flawed. The fact that Garland signed off on this search, even as Trump is signaling he will run, suggests that the election would not halt a criminal investigation. There is no statute that would bar a prosecution of Trump, even as he goes through the nomination process. The most likely outcome is that Garland would appoint a special counsel to investigate, and even prosecute Trump, as Biden runs for re-election. If you thought the Mueller investigation was unwieldy, this special counsel prosecution would be far, far more unconstrained.

We are veering into uncharted territories if the incumbent president is prosecuting the former president who is running for re-election. And even if Trump is convicted, he still would not be disqualified.

According to reports, the FBI searched Mar-A-Lago as part of an investigation about the handling of classified documents. Will this be the action that finally stops Trump? Several progressive commentators gleefully pointed to 18 U.S.C. § 2071. It provides:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term "office" does not include the office held by any person as a retired officer of the Armed Forces of the United States.

If Trump is convicted of violating this statute, can he be disqualified from the presidency? No. And my colleague Seth Barrett Tillman wrote about this precise issue in 2015. At the time, conservative commentators, including former Attorney General Michael Mukasey, argued that Hillary Clinton could be disqualified from the presidency due to the storage of classified materials on her private email server. Seth explained that Mukasey's argument does not work.

Under Powell v. McCormack and U.S. Term Limits v. Thornton, Congress and the states cannot "add to the express textual qualifications for House and Senate seats in Article I." And that reasoning, Seth concluded, would seem to apply to the qualifications for the presidency in Article II. Several courts in the Seventh Circuit, and elsewhere, reached that same conclusion.

On this blog, Mukasey later admitted that Tillman was correct, and he was wrong:

[O]n reflection . . . Professor Tillman's [analysis] is spot on, and mine was mistaken. . . . The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that's all it is.

Tonight, Charlie Savage of the New York Times recounted this history in an article  on the Trump search.

Some Republicans were briefly entranced with whether the law could keep Mrs. Clinton out of the White House, including Michael Mukasey, a former attorney general in the administration of George W. Bush. So was at least one conservative think tank.

But in considering that situation, several legal scholars — including Seth B. Tillman of Maynouth University in Ireland and Eugene Volokh of the University of California, Los Angeles — noted that the Constitution sets eligibility criteria for who can be president, and argued that Supreme Court rulings suggest Congress cannot alter it. The Constitution allows Congress to disqualify people from holding office in impeachment proceedings, but grants no such power for ordinary criminal law.

Mr. Volokh later reported on his blog that Mr. Mukasey — who is also a former federal judge — wrote that "upon reflection," Mr. Mukasey had been mistaken and Mr. Tillman's analysis was "spot on." (Mrs. Clinton was never charged with any crime related to her use of the server.)

Once again, Tillman rebuts an argument that conservatives favored as a way to get Clinton, that liberals now favor as a way to get Trump. There is nothing new under the sun.

Back in 2015, Seth did not have to make the argument that the Presidency is not an "office under the United States" for purposes of Section 2071. But Seth and I did consider another statute, 18 U.S.C. § 2383, which also disqualifies a person from "holding any office under the United States." In an article published shortly after the inauguration, we addressed what happens if the Biden administration prosecutes and convicts Trump of insurrection. That article is suddenly relevant to our present moment.

This is the fifth and last in in a series of posts summarizing an article titled Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law, which is forthcoming in the BYU Law Review. The current draft is available on SSRN.

These posts, and the article on which they are based, criticize the doctrine of remand without vacatur. This last post discusses some implications of those criticisms for the debate about universal relief against the government – remedies in suits against the government that provide relief to everyone affected by agency action, not just the parties.

First, the ab initio invalidity of unlawful regulations shows that one leading argument in favor of universal relief against regulations is unsound. According to that argument, universal relief against unlawful regulations comes within the generally accepted principle that benefits to non-parties are permissible when they are indivisible from relief to parties. Relief is indivisible when vindicating the rights of parties inevitably entails benefiting non-parties. For example, an injunction against making excessive noise may provide benefits to neighbors who are not plaintiffs that cannot be separated from relief to plaintiffs.

Vacatur of unlawful regulations, the argument goes, is necessary to relieve the parties from their obligations under the regulation, and vacatur provides benefits to non-parties that are indivisible from the benefits to parties. Vacating a regulation renders it wholly inoperative, the way rescission by the agency would. A regulation that has been made wholly inoperative no longer binds anyone, party or not. Giving the parties relief by eliminating the rule's binding force inevitably and permissibly benefits everyone subject to the rule.

Because unlawful regulations are void ab initio, however, the reviewing court does not need to bring about invalidity in order to give the plaintiff a remedy. Rather, party-specific relief, like injunctions against enforcement against the plaintiff, or a declaration that the plaintiff has no duty to comply, are enough. Those party-specific remedies reflect the conclusion that the regulation was void when adopted, a situation the courts recognize but do not bring about. Vacatur is not needed to relieve the parties from a regulation that is already invalid. Injunctions against enforcement and declaratory judgments, as opposed to vacatur of a rule as such, are divisible relief. A court can enjoin proceedings against A without enjoining proceedings against B. A court can also declare A's legal relations with the government without declaring B's.

Second, recognizing ab initio invalidity reveals serious questions concerning the supposed remedy of vacatur, which operates on regulations as such and not only on parties. Ab initio invalidity might seem to rule out vacatur. How can a court invalidate an already-invalid regulation?  Despite that difficulty, invalidation of an invalid regulation is in a sense possible. Whether that effect can be brought about by a court, however, is not clear.

Strange as it may seem, an invalid regulation can be invalidated. That odd possibility arises because regulations, like statutes, have more than one necessary condition for validity. To be binding, a statute must have been adopted pursuant to the Constitution's law-making process, its content must be consistent with the Constitution, and it must not have been repealed. Repeal deprives a statute of a necessary condition for validity that is independent of substantive constitutionality. For that reason, when Congress repeals a statutory provision that is wholly unconstitutional, a meaningful legal event takes place. In similar fashion, a duly-promulgated regulation that is wholly invalid because not authorized by statute, for example, can in a meaningful sense be repealed. Congress can pass new legislation that refers to the regulation and eliminates its legal force, and the agency can rescind it. A regulation, like a statute, can be deprived of one necessary condition for validity even if it already lacks another.

Both legislative and executive power can operate on rules as such, whereas the core operation of judicial power is on parties to lawsuits. Whether judicial power can operate on regulations the way legislative and executive power can is not clear. Courts cannot repeal statutes, so maybe they cannot rescind rules. A court can order an agency to rescind a rule, but an injunction directing rescission is an order to a party, not an act of law-making. Whether Congress has authorized the federal courts to deprive regulations of legal force is also not clear. In describing proceedings in which judicial review takes place, section 703 of the APA mentions suits for injunctions and declaratory judgments, which operate on parties. Section 703 does not list proceedings for vacatur. That provision does mention special statutory review proceedings; whether any of them contemplates that a reviewing court will directly change the content of the law depends on the meaning of those provisions.

The analogy between court-court and court-agency review obscures the question whether courts can change the content of regulatory law and the question whether Congress has empowered them to do so. Agencies and courts exercise different kinds of power, whereas appellate courts exercise judicial power just as lower courts do. An appellate court can displace the legal effects of a lower-court order by vacating it, because lower courts and appellate courts work together in deciding cases through the exercise of judicial power.

Agencies are not courts. The regulations agencies produce are more like statutes than like lower-court judgments, in that unlawful agency regulations are in general invalid, just as unconstitutional statutory rules are invalid. Courts should not tell regulated parties that they are obliged to comply with unlawful regulations while agencies seek to repair the regulations' flaws. The analogy between agencies and lower courts on which remand without vacatur rests is no more than an analogy, and often is misleading.

From Thaler v. Vidal, decided today by the Federal Circuit (Judge Tony Leonard Stark, joined by Chief Judge Kimberly Moore and Judge Richard Taranto):

This case presents the question of who, or what, can be an inventor. Specifically, we are asked to decide if an artificial intelligence (AI) software system can be listed as the inventor on a patent application. At first, it might seem that resolving this issue would involve an abstract inquiry into the nature of invention or the rights, if any, of AI systems. In fact, however, we do not need to ponder these metaphysical matters. Instead, our task begins—and ends—with consideration of the applicable definition in the relevant statute.

The United States Patent and Trademark Office (PTO) undertook the same analysis and concluded that the Patent Act defines "inventor" as limited to natural persons; that is, human beings. Accordingly, the PTO denied Stephen Thaler's patent applications, which failed to list any human as an inventor. Thaler challenged that conclusion in the U.S. District Court for the Eastern District of Virginia, which agreed with the PTO and granted it summary judgment. We, too, conclude that the Patent Act requires an "inventor" to be a natural person and, therefore, affirm.

Thanks to Spencer Gibbs for the pointer.

An interesting line from Blackstone's letters:

"Precedents are Laws interpreted by Usage; & if there has been no Interpretation, we must resort to the Law itself."

"Letter 18. To Randle Wilbraham, 9 January 1753 [draft]," in The Letters of Sir William Blackstone 1744–1780, at 26 (W. R. Prest ed. 2006) (Selden Society Supplementary Series vol. 14).