The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Narrowest Ground for Deciding Trump v. United States

Holding that Jack Smith lacks defendant's standing lets the Supreme Court avoid the fraught question of presidential immunity for criminal actions


I argued in a blog post on Sunday, April 21st that Special Counsel Jack Smith lacked defendant standing to defend the U.S. government's victory in the D.C. Circuit, in the case of Trump v. United States. I pointed out that all nine justices, themselves, must ask the lawyers who argue both sides of Trump v. United States whether Jack Smith has standing to defend the D.C. Circuit opinion given that his appointment as Special Counsel was unconstitutional.  Jack Smith lacks standing to defend the D.C. Circuit's decision in Trump v. United States every bit as much as I lack standing to defend that decision.  Jack Smith is a private citizen in the eye of the law.

I want to argue in this post that disposing of Trump v. United States on jurisdictional grounds is a far better way of deciding Trump v. United States than would be wading into the constitutional morass of trying to decide on the merits, which actions that a President takes while he is in office he can be prosecuted for, and which he cannot be prosecuted for. This is a very fraught question of U.S. constitutional law that is best left unanswered, unless the facts of a live case or controversy imperiously demand that the Supreme Court decide it.

Many will believe that the answer to the presidential immunity question depends on whether the president is "corruptly" exerting the power of the office of the President of the United States or whether he is engaged in "non-presidential activities". If President Biden corruptly accepts bribes, paid to his son Hunter, in exchange for altering U.S. policy in Ukraine or towards China, many will believe that is an act that he could be prosecuted for. When President Barack Obama ordered the killing of a known terrorist by a Predator Drone Strike, which accidently led to the death of a U.S. citizen who was physically near that terrorist, President Obama could not be prosecuted for that act because the death of the American citizen was an unintended consequence of President Obama's legitimate exercise of his executive power as Commander in Chief. If President Biden were to walk out of the White House and shoot some random person walking down Pennsylvania Avenue many will believe that would be a crime that he could be prosecuted for.

The problem that the three hypotheticals just addressed show is what a slippery test would come to exist for anything other than a grant of blanket immunity to sitting presidents for all of the actions that they take while serving as President. Yet, I strongly doubt that the Supreme Court will be willing to give presidents blanket immunity for any crimes that occur during their terms in office.

I would urge the Supreme Court, instead, to duck the very hard problem of presidential immunity from criminal prosecutions, which could draw the Court into an endless game of second-guessing presidential decisions. This can be easily done by issuing a much narrower, and quite correct opinion that Jack Smith lacks defendant's standing in Trump v. United States. The blame for the Jack Smith screw-up lies squarely with Merrick Garland because President Biden's Attorney General broke the law by incompetently, and for political reasons, appointing private citizen Jack Smith to be Special Counsel to prosecute former President Donald Trump instead of designating one of the 92 Senate confirmed U.S. Attorneys to be a Special Counsel, with nationwide jurisdiction, to investigate the allegations against former President Donald Trump.

The reason why prosecutorial power should be confined to Senate confirmed U.S. Attorneys was well stated by Attorney General Robert Jackson in a speech entitled "The Federal Prosecutor". In that speech, Attorney General Jackson said:

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."