Presidential Bribery and the Clear Statement Rule in Trump v. United States: Revisiting Issues From The First Trump Impeachment and the Mueller Investigation

Questions from Chief Justice Roberts and Justices Kavanaugh and Gorsuch revisit unresolved issues from 2017-2020.

Today the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency. 

First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, countered that a criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President. 

Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. § 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct. 

Third, however, the mere fact that a former President could be prosecuted for bribery does not resolve the allegations leading up to the first Trump impeachment: what exactly is bribery in the context of the presidency? At the time, Seth Barrett Tillman and I acknowledged the easy case: the President receiving a "suitcase full of money" in exchange for performing some official act would amount to bribery. But the theory of the first impeachment was different. Then-Speaker Nancy Pelosi argued that Trump "violated his oath by threatening to withhold military aid and a White House meeting in exchange for an investigation into his political rival."

Fourth, to address these allegations, Seth and I offered a theory for bribery in the context of public officials like the President. This theory explains why motives (including mixed motives) are entirely irrelevant to establishing any traditional or common law sense of "bribery," including "bribery" as used in the Constitution or in the U.S. Code. It is very difficult to disentangle "public" motivations from "personal" motivations. We wrote:

We start from a simple premise: Most people run for office, and seek to remain in office, based on a belief that they—and not others—are in the best position to promote the public welfare, however defined. When government officials act, they almost always act with mixed motives: They act in part to promote the public good and in part to remain in office, or perhaps to seek higher office. Often, the two concepts overlap: What's good for the country is good for the official and his or her chances at reelection. All politicians understand this dynamic, even—or perhaps especially—Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote.

Our position can be summarized in a single sentence: Where one public official act is traded for another public official act, there has not been any illegal conduct. (In my view, of all the things that Seth and I wrote, this is probably one of the most important.) Though these writings were limited to the context of impeachment, I think they would apply more broadly to any federal bribery prosecution of any current or former federal official, including (if not especially) the President.

Fifth, motivations do not play an important role in this analysis. With the president, "personal and public motivations are inextricably intertwined." Why? As we explained, politicians never lose sight of the next election. Merely acting with an eye towards retaining office is not an improper purpose. We wrote:

We consider Trump to stand in a position similar to the log-rolling members of Congress. In our view, he acted to promote the public interest, as he understood it, with the full recognition that his actions also increased the probability that he may prevail at the next election. In those circumstances, Trump's request does not amount to bribery. Poor political discretion, perhaps. But we see no way on these facts to disentangle a motivation to promote American interests abroad from a competing motivation to assist his reelection campaign.

I later expanded on this theme in a New York Times guest essay published before the impeachment trial started. I explained that "receiving a 'political benefit' does not transform an otherwise legal action (like requesting an investigation) into an abuse of power." I wrote that many Presidents acted based on "dueling motives." President Lincoln, for example, allowed soldiers to return home to vote, even though this action may have put the military campaign at risk, or, at the very least, shifted risk of life and limb onto others remaining on the field of battle. I observed, "Lincoln's personal interests should not impugn his public motive: win the war and secure the nation." 

None of these five points were ever addressed by the federal courts, since Trump was never indicted by Mueller. But all five of these points came up during oral argument today in Trump v. United States. I had a sense of déjà vu.

The Clear Statement Rule

The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.

Kavanaugh asked John Sauer, Trump's counsel, if "a clear statement in the statute covering the president" is required "if the president's official acts are going to be criminalized." Kavanaugh later observed that "a clear statement in the statute referencing the president" was needed "so that the president is on notice and can conduct himself or herself accordingly." Another rationale for the clear statement rule, Kavanaugh explained, is "to make sure Congress has thought about" what it would mean to subject the President to criminal liability. 

In a colloquy with Michael Dreeben, counsel for Jack Smith, Kavanaugh observed that the OLC opinions "articulate a clear statement rule as to this Court's cases for covering official acts." Kavanaugh stressed that "none of the statutes" in the indictment "have a clear statement covering the president, therefore, meaning that the president can't be charged for any official acts" under these statutes. Michael Dreeben rejected this argument. He said, "I definitely don't think that the Office of Legal Counsel opinions stand for this broad proposition that unless the president is specifically named," he can't be charged with violating that statute." Marty Lederman articulated this position after the Mueller investigation concluded. Lederman wrote, "there is no such established canon, or 'clear statement rule,' notwithstanding its appearance in a handful of OLC opinions in the Clinton Administration." 

Kavanaugh interrupted Dreeben, and suggested there is always a "serious constitutional question whether a statute can be applied to the president's official acts." Kavanaugh asked, "So wouldn't you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?" Dreeben countered that there was not "a serious constitutional question" in all statutes "across the board." Kavanaugh did not agree with that proposition. He turned to obstruction and conspiracy charges, which "can be used against a lot of presidential activities historically with a creative prosecutor who wants to go after a president." (That prosecutor's name is Jack Smith.)

I can see Justice Kavanaugh writing a concurrence explaining that the clear statement rule should apply across the board, relying on Franklin v. Massachusetts. I don't know that the Court has ever made this point clearly, but I thought that Justice Kavanaugh got the better of the colloquy with Dreeben. In any event, the discussion of the clear statement rule presumes that the President does not have absolute immunity. This rule of construction only kicks in if the President can be prosecuted.

Justice Kavanaugh also said that Morrison v. Olson was "one of the Court's biggest mistakes" and was a "terrible decision for the presidency and for the country." Kavanaugh praised Justice Scalia's Morrison dissent, as well as Justice Robert H. Jackson's famous speech about prosecutors. Kavanaugh described this case as Morrison v. Olson "redux." Then-judge Kavanaugh criticized Morrison before his elevation, though he did not make this point in Seila Law or Arthrex. Perhaps Kavanaugh's concurrence in Trump will take on Morrison directly.

The President and bribery 

During oral argument, Chief Justice Roberts asked a string of questions about the president and bribery. What makes this topic so complicated is that even if the quid is a briefcase full of cash, the quo will likely be an official act supported by Article II. You can't have one without the other.

Chief Justice Roberts offered a hypothetical in which a President promises to appoint someone as an ambassador in exchange for a $1 million bribe. The same hypothetical could apply to other categories. Dreeben suggested a few other examples: the pardon power, the veto power, the foreign recognition power (an exclusive power under Zivotofsky), and (perhaps) the commander in chief power (to the extent it is not shared with Congress). Sauer replied to the Chief Justice that accepting the bribe would be private conduct, and not an official act, while the "substantive appointment would be essentially an unrestrictable [Article II] power . . .  that Congress couldn't directly regulate." Roberts did not seem persuaded by this distinction. He asked where the "boundary" is between the official and private acts. Roberts explained that "if you expunge the official part from the indictment"--that is, the appointment--you're left with a "one-legged stool, right." You can't have the quo without the quid. Later Dreeben told Justice Kagan that "In a bribery case, the public official cannot extract the bribe without the official power to offer as the quid or the" quo. Dreeben stated, "bribery is the kind of hybrid that illustrates the abuse of public office for private gain that we think is paradigmatic of the kinds of things that should be not held to be immune."

But there's that concept of "private gain" again. Justice Jackson likewise stated, "one could say that when the president is using the trappings of his office to achieve a personal gain, then he's actually not acting officially." A suitcase of cash is clearly private gain. But how do you draw the line between a "personal gain" and a "public gain"? Seth and I discussed this line in the context of then-Governor Rod Blagojevich's attempt to barter a Senate vacancy:

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich's receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that "a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment." He added that "[g]overnance would hardly be possible without" political log-rolling, "which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly."

Dreeben stated, "Many of the acts that are charged in this indictment or that would violate federal criminal law similarly involve the misuse of official power for private gain." The issue is not so clear-cut as Dreeben suggests. For sure, Jack Smith would say that Trump's actions were for "private gain." But if this case were ever to go to trial, Trump would argue that the actions he took were in the national interest (ensuring fair elections) and also for his private gain (re-election). When you are the President, it is difficult to disentangle the two concepts. The conception of "private gain" by Dreeben would go a long way towards criminalizing regular politics. Many of the Court's recent cases, like McDonnell and Kelly cut in the exact opposite direction.

All The President's Motives

One of the most stimulating exchanges of the day was between Justice Gorsuch and Michael Dreeben. The colloquy began with Justice Gorsuch asking how to assess the President's motives. He offered an example of a President who uses his "war powers" to "enhance his election, his personal interests." Gorsuch inquired, "Is that a relevant consideration when we're looking at core powers?" This is precisely the scenario I discussed in the New York Times. Lincoln used his war powers to help his re-election. Relatedly, Justice Kavanaugh brought up President Lyndon B. Johnson's "false" statements about the Vietnam War and President Gerald Ford's pardon of former-President Nixon. Did Ford think about being investigated for obstructing the Nixon investigation? Kavanaugh also brought up President Obama's "drone strikes." Could Obama be charged with murder?

Dreeben resisted the probe into motivation, and acknowledged "concern[s] about saying an electoral motive to be reelected as such is covered." (I think "covered" would mean "immune.") Gorsuch responded, "every first-term President, everything he does can be seen through the prism, by critics at least, of his personal interest in re-election." Truth.

Gorusch said it would be a bad rule to dig into "personal motivations," at least with regard to "core powers" like the pardon power or the veto power. Gorsuch also asked if the removal power is a "core power." (Remember Andrew Johnson was impeached, in part, for firing Secretary of War Edwin Stanton in violation of the Tenure of Office Act.) Dreeben said that motivations "maybe" comes into play with regard to core powers. He said, "The Department has not had to take a position on exactly how these core powers would be resolved under an as-applied constitutional analysis." The colloquy continued, but I don't think Justice Gorsuch got a clear answer out of Dreeben. At one point, Dreeben said, "I think that you're raising a very difficult question." Gorsuch replied, "That's the idea, testing the limits of both sides' arguments." Dreeben attempted to run away. "I'm going to say something that I don't normally say, which is that's really not involved in this case. (Laughter.) We don't have bad political motive in that sense." But such an analysis is involved in examining Trump's motives for his statements on at the Ellipse. That answer was not going to work. Gorsuch replied that the Court is "writing a rule for the ages."

Later Justice Barrett returned to Justice Gorsuch's motives questions. She asked if the President would lose immunity if he granted a pardon or removed a cabinet officer with a "bad motive." 

During the Trump years, I wrote at length about the challenges of trying to assess the President's motives--especially in the context of the exercise of constitutional authority. DOJ has every interest in resisting such a probe, so it is unsurprising that Dreeben bobbed and weaved.

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These are my tentative thoughts on the oral argument this morning. I hope to write more in due course.