The Volokh Conspiracy
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What Should a Textualist Think about Trump's Claims of Presidential Immunity?
An interesting amicus brief urges the justices not to rely upon penumbras and emanations in construing the scope of Presidential immunity.
Lots of amicus briefs have been filed for and against former President Trump's claims of immunity from prosecution for his actions on January 6 in Trump v. United States. Among the more interesting briefs filed on behalf of respondents is an amicus brief for Stephen McAllister and Scott Paul (with Erik Jaffe and James Heilpern on brief as counsel) argues that existing precedents on presidential immunity lack a textual basis and that, if the Supreme Court's majority is to be as textualist as it purports to be, it should not extend or build upon this non-textual precedent.
Here is the brief's summary:
Amici agree with Respondent and the panel below regarding the question presented that Presidents, like all other citizens, are not immune from the consequences of violating federal criminal law. Amici take no position here on any potential legal questions antecedent or subsequent to the question presented. And they take no position on whether the facts and the law will ultimately result in conviction, acquittal, or dismissal on other grounds.
Amici write separately to emphasize how Petitioner's claims of immunity lack any basis in the Constitution's text. Indeed, Petitioner's claims flout this Court's repeated and recently enhanced emphasis on looking to the original meaning of such text, as interpreted by history and tradition, rather than relying on penumbras, emanations, reading between the lines, historical practices not incorporated into the text, or, ultimately, the policy preferences and balancing of judges imposed upon such Rorschach-like non-textual approaches.
It has been the decades-long project of conservative jurisprudence to get away from such subjective and malleable approaches to constitutional and statutory interpretation, and this case is not the place to backslide on such jurisprudential principles. Alleged violations of federal criminal law are not discretionary choices left to the President by the Constitution or statute. Even Presidents must be legally accountable for violations of the laws they are sworn to faithfully execute.
The Constitution itself provides no textual basis for Presidential immunity from federal criminal laws. When Petitioner cites actual constitutional provisions, he either invokes the strained implications— penumbras and emanations, perhaps—of clauses that say nothing about immunity, or gets things exactly backwards. When it comes to text, reading is fundamental.
The mere vesting of executive authority says nothing about immunity when such authority is abused or exercised in violation of laws enacted pursuant to Congress' legislative authority. Nothing in the text suggests it is left to the discretion of the President to violate federal or constitutional commands and limitations. And nothing in the text precludes the executive branch from deciding whether to lawfully prosecute previous Presidential violations of the law in the federal courts.
The Impeachment and Impeachment Judgment Clauses likewise provide no immunity to Presidents and do not establish a condition precedent for prosecution. Indeed, the Impeachment Judgment Clause supports exactly the opposite conclusion, serving as a negation of any imagined double jeopardy constraints based on conviction by the Senate. In doing so it confirms that ordinary legal accountability against Presidents is the default legal regime that is not to be displaced regardless of the outcome of impeachment and trial.
Structural concerns and other provisions of the Constitution likewise do not support presidential immunity from federal criminal law. The mere delegation of power does not imply absolute discretion in its exercise, and other so-called structural arguments amount to little more than policy arguments regarding which courts are not the proper arbiters. And, where the Constitution intended immunity for elected officials, it said so explicitly and with built-in limitations, such as in the Speech and Debate Clause, providing specific, but certainly not absolute, immunity to Senators and Representatives. The absence of a comparable provision for Presidents and other executive officers should be more than sufficient to dispose of Petitioner's claimed immunity.
Unable to point to any immunity provision in the Constitution itself, Petitioner relies on older precedent based upon the very methodologies now viewed as illegitimate. While others will discuss the finer points of this Court's past precedent and why it does not apply to this case, Amici here merely note that such precedent lacks any coherent textual basis and, at a minimum, should not be extended further.
Finally, this Court should resist any policy urges to invent immunities for the President and instead hold that the agent of the People charged with faithfully executing the laws is also subject to those self-same laws and will not be given a free pass out of fear for the consequences of applying the Constitution as written. If there is a problem with perceived risk to future Presidents, it is Congress, via legislation, that is best suited to strike that balance and provide any limited immunity it might deem appropriate. While there are legitimate differences of opinion regarding the proper balance between rule of law versus executive timidity, it is decidedly not the role of this Court to strike that balance.
Insofar as the Court insists on drawing lines, however, it should take a narrow view of what presidential conduct is "discretionary" and hold that even otherwise "official" conduct that violates federal criminal law is ultra vires and hence neither discretionary nor immunized from the criminal consequences of such violation. Indeed, the constitutional command that a President "take Care that the Laws be faithfully executed" provides as good a basis as any for holding, at a minimum, that intentional or reckless violations of federal criminal laws are not part of the "faithful[]" execution of the laws and not entitled to immunity. The alternative proposed by Petitioner would lead to absurd results or subjective and policy-driven judicial determinations of what conduct goes too far beyond the "outer bounds" of official action.
