Jack Goldsmith on Why SCOTUS Should Review the D.C. Circuit's Decision on Presidential Immunity

The case raises an issue of high importance and the opinion may contain some loose reasoning.

I have a generally favorable view of the U.S. Court of Appeals decision in United States v. Trump, concluding that Donald Trump does not have absolute immunity from prosecution for his actions seeking to overturn the 2020 presidential election results.

The 57-page opinion is careful and thorough, and was produced on a short timeline. The panel released the opinion a scant 28 days from oral argument and was unanimous. It also reached the correct result (a point on which my co-blogger Keith Whittington agrees).

Harvard law professor Jack Goldsmith agrees that the court reached the correct conclusion, but believes the case nonetheless merits Supreme Court review. He makes the case over at the Lawfare blog. His essay begins:

I agree with the D.C. Circuit's conclusion in United States v. Trump that former president Trump is not immune from prosecution for criminal acts committed in office. Nonetheless, I think the Supreme Court should review the case. The main reason to grant certiorari is simply that, as Supreme Court Rule 10 states, "a United States court of appeals has decided an important question of federal law"—a former president's immunity from prosecution—"that has not been, but should be, settled by [the Supreme] Court." An additional but less obvious reason why the D.C. Circuit decision is important is that it contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents.

We will see whether the Supreme Court agrees.

Comments

[gVOR08]

Last night a number of legal talking heads expressed the opinion the Supremes won't take this up, discretion/valor. However they expressed some uncertainty as this Court has seemed particularly immodest, wanting to reserve the last word on all important questions to themselves. Goldsmith's first argument is a more respectful phrasing of this argument.

[Dr. Ed 2]

I don't see how they can't because of the Pandora's Box this opens.

[ChrisC]

Exactly. As the WSJ editorial page puts it, "But now that would mean giving three lower-court judges the final say with a ruling that would seem to permit a victorious Mr. Trump to appoint an Attorney General who would try to prosecute Mr. Biden."

[David Nieporent]

Yes, and?

[ObviouslyNotSpam]

Exactly, that's what "no immunity from criminal prosecution" means.

But we know already that Trump's gang will corruptly abuse the powers of office--not only have they already tried to steal an election, they're busy telling us now that is what they plan to do if Trump is elected.

They don't need this appeals court ruling to do what they're already going to do. They're going to abuse whatever power is given to them. Yes, this power included.

But we can't make them any less corrupt by pretending that the Constitution says something that it doesn't.

[Dr. Ed 2]

Even if they are trigger happy, we could avoid removing all the safeties on all the guns...

[Dr. Ed 2]

"An additional but less obvious reason why the D.C. Circuit decision is important is that it contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents."

Remember that Trump was still a sitting President when he committed these purported crimes, including even taking the documents to Florida.

And I still maintain that Sovereign Immunity applies to the President as well -- that he can't be criminally prosecuted and the only punishment available is impeachment with disqualification.

The consequences of anything else are troubling -- and that's why we have an election to select the President, who should be of good character.

[gVOR08]

Heard a new argument last night that might be compelling for the justices. It's common to argue that if the prez has absolute immunity Biden can just shoot Trump dead. Last night someone pointed out that it would also mean Biden could murder conservative justices.

[David Nieporent]

Why on earth would anyone care what you "maintain"? You're not a lawyer, and don't know anything about the words you’re using. The president is not the government, and the constitution expressly says that officers who are impeached can be prosecuted, so claiming that "the only punishment available is impeachment" is gibberish.

Remember that Trump was still a sitting President when he committed these purported crimes, including even taking the documents to Florida.

Wow, a two-for! As I've noted, the Second Law of Dr. Ed is "Whenever he prefaces a statement with 'remember that' or 'people forget that,' it's either something that absolutely every single person already remembers or something Dr. Ed made up." In this case, both!

The entire point of this appeal is that he was president when he committed these crimes! That's the premise of his claim for presidential immunity!

But of course not for the Florida documents case, in which he is only charged with criminal activity that happened after he left office.

[Dr. Ed 2]

WHERE does the constitution say that????

[Tim]

Article 1 section 3.

"but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

I think you must not have read Trump's own argument? His lawyers are the ones who pointed to that. They tried to make it mean that such prosecution can *only* happen after an impeachment conviction. But they're the ones who talked about it can at *least* happen then.

[Tim]

Trump hasn’t been charged with taking the documents to florida. They left that out, I think pretty carefully.

I suppose there’s a chance I’m misremembering something, but when the Mar-A-Lago case was charged, I remember that a good amount of the commentary was devoted to:

They only charged Trump for what he did after the current administration asked for the documents back, and Trump allegedly lied and hid things and resisted over a period of time.

( I’m not trying to argue the merits of that. Just that it was all charges for after he was no longer president and what he did then.)

[Rev. O.T. Medal]

Professor Adler, if the Supreme Court should grant cert for the prurposes of tightening up some reasoning and affirming the DC holding, do you have any thoughts on whether the Court has an obligation to expedite matters to ensure that Trump cannot run out the clock on the underlying case and -- if so -- how the Supreme Court should proceed?

[Alkali]

At some point it becomes a failure of basic courtesy toward the lower courts and prosecutors. If the Supreme Court was going to take this up in any event, why didn't they take it directly as Jack Smith urged? And does the case really have to go on hold while the Supreme Court justices write a dozen conflicting monographs on constitutional theory?

[Rev. Arthur L. Kirkland]

The Court should balance the partisan advantage to be derived from running interference for Trump and Republicans against the partisan risk associated with Court enlargement arranged by better Americans. The more shelter and assistance these right-wingers provide to Trump and his mob of bigoted misfits, the more likely enlargement becomes.

The important point: Better Americans can't lose, regardless of what the justices (and other Republicans) do. The culture war has been settled. The good guys have won.

[Dr. Ed 2]

YOU ARE LOSING!

[Rev. Arthur L. Kirkland]

We have been shoving progress down conservatives' ineffectual, bigoted, superstitious, whining throats for so long as any of us has been alive, and we are not done.

Now try to be nicer, because there is no law obligating a culture war's winners to be magnanimous toward a culture war's deplorable losers. You could ask UCLA's law dean about that one.

[Don Nico]

If Trump files for cert, rather than a stay, then he might get four votes and he cannot play games with the schedule. That will be set by the Court. He might even get four votes.
If he files for a stay and that is granted then he can wait up to 90 days before filing for cert. That would be bad. He is much less likely to get 5 votes from this Court.

[not guilty]

Trump can file a cert petition within 90 days whether the stay application is granted or denied. If the COA mandate is not stayed, jurisdiction reverts to Judge Chutkan, but that does not preclude Trump filing a cert petition.

[Don Nico]

I understand that not granting a stay does not preclude filing for Cert.
But as you say, the jurisdiction reverts to Chutkan, and she can decide to let the trial begin and proceed until Trump files for cert. That certainly does take away some of Trump's playing for delay in any trial.
If the stay is not granted then his team is pushed to apply for cert as soon as possible. Again limiting Trump' play for delay.
My impression is that Trump will have to apply for cert as soon as possible. The walls are closing in on him. (or so I hope.)

[M L]

That was interesting. From the link, this "clear statement rule" was stated thusly by Jack Smith in his brief:

"Congress should not be assumed to have altered the constitutional allocation of powers between branches without clear assurance that it intended the result. "

My question is, even if Congress did clearly intend to do such a thing, can they? I would think not. Not as it's put here.

[M L]

Goldsmith's main point is here:

In saying that Trump’s acts “allegedly violated generally applicable criminal laws” and thus “were not properly within the scope of his lawful discretion,” the court gets matters exactly backwards from the perspective of the plain statement rule. That rule holds that the generally applicable laws at issue here do not apply to the president if the statute “possibly conflicts” (as Dellinger put it) with the president’s constitutional prerogatives. By contending the opposite—that the president was not exercising lawful discretion because he allegedly violated generally applicable laws—the D.C. Circuit’s reasoning is in conflict with the plain statement rule.

This doesn't seem like merely "tightening up" the reasoning, it seems like different reasoning entirely, one that would necessitate a different analysis specific to the statutes in question and could easily lead to a different conclusion.

[JJJSSS]

It's actually worse than that. The decision does deal with this, and notes that certification of electoral votes is not a power granted by the constitution to the President (pages 37-40).

[M L]

Simply stated, the statutes at issue say for example, it is a federal crime to corruptly influence a proceeding. Could such a law, if it applied to the president, ever "arguably limit the President's constitutional role" ? It sure seems possible that it could. If so then it seems like the clear statement rule from the OLC memo would dictate that this statute does not apply to the President. Here's the rule:

Office of Legal Counsel (OLC) head Walter Dellinger described the presidential clear statement rule as follows: “[G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.” Dellinger added: “[S]tatutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives”

It seems like this is saying that if a statute on its face could arguably limit a President's constitutional role in any conceivable circumstance, then that statute should not be construed as applying to the President in any circumstance.

Alternatively, do these statements merely indicate that a statute does not apply to a President only when its application to a particular set of facts limits a President's constitutional role, but the same statute otherwise applies to Presidents? From reading Goldsmith's post, this does not seem correct.

[Moderation4ever]

I think it is important that there is a trial before the November election. I think it important that people have the opportunity to hear the case against the former President and to know what a jury thinks of the case. The principle of Presidential immunity is also important and a ruling from SCOTUS would provide a final decision. Ideally, I like to see SCOTUS allow the case to proceed and indicate a willingness to accept an appeal of a guilty verdict.

[mydisplayname]

"An additional but less obvious reason why the D.C. Circuit decision is important is that it contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents."

I agree completely.

[Lee Moore]

Indeed. Trump Lawfare cases should not set any precedents affecting the rest of the legal system.

[Seaboltm]

Perhaps charge Obama with two counts of capital murder? Certainly that use of presidential power stretched the bounds? Let a jury decide.

[myself]

Isn't it a rule of thumb that the SCOTUS should play a minimalist role, only handing down precedents when a lower court has potentially erred or there's conflicting decisions in lower courts?

Trump's not immune from these charges, that seems sufficient. Maybe the lower court decision is less than perfect, but will a SCOTUS decision really be so much better as to be worth creating a much stronger precedent?