Robert Leider on Sources of Presidential Immunity

I've benefited from much thoughtful commentary about last week's arguments in Trump v. United States, the presidential immunity case (besides posts at this blog, see e.g. these posts by Jack Goldsmith and by Marty Lederman).

In addition I wanted to pass along these additional thoughts by Professor Robert Leider from George Mason, an expert in both constitutional law and criminal law, which I thought would be of interest to readers:

Sources of Presidential Immunity

            On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office.  Some arguments seemed perplexing.  Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts.  So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act.  Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.

The Court struggled with these arguments, and many others.  In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted.  In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen.  This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct.  But at the very least, I think it is a better starting place than the all-encompassing term "immunity."

1. Immunity from personal jurisdiction.

Of the four "exceptions" I lay out in this blog post, this is the only true "immunity."  Presidents cannot be indicted or prosecuted while they remain in office.  The Office of Legal Counsel has long advocated this position.

The source of this immunity is historical and structural.  Historically, immunity from personal jurisdiction could be viewed as a remaining remnant of sovereign immunity that the Crown possessed.  In Britain, the maxim "the King can do no wrong" reflected that the sovereignty of the King was incompatible with his amenability to legal process.  As a result, the British recognized the Crown to be completely immune from committing all crimes and torts (though aggrieved subjects could recover in tort from subordinate magistrates, who lacked such immunity, or by petitioning the Crown to provide voluntary redress).  Because the Crown served for life, it was impossible to ever get jurisdiction over any incumbent.

Some of this immunity is not compatible with our governmental structure.  Our Framers contemplated a republican government, with a chief executive under the rule of law.  The Constitution's impeachment clauses suggest as much when they provide that the president can be impeached and removed and that those removed "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."  Additionally, because our presidents serve four-year terms, most will eventually return to private life.

Nevertheless, a Crown-like sovereign immunity from criminal prosecution for the president while in office is compatible with republican government, and maybe even necessary.  This brings me to my structural argument.  The president is the chief executive officer, and thus, responsible for the execution of the laws.  To allow a federal prosecutor to prosecute him would be to recognize an executive officer who, in effect, had superior executive power to the president.  And to allow a state prosecutor to bring criminal charges against the president would create Supremacy Clause problems, allowing any local official (outside of federal executive supervision) to harass the President of the United States.  So it would be plausible to recognize that presidents retain the traditional immunity from criminal jurisdiction that the Crown possessed before our separation from Britain.  But this immunity is solely an immunity from personal jurisdiction and does not survive the expiration of the president's service.

2. Substantive criminal laws that violate separation of powers.

There are certain laws that Congress cannot substantively make because the Constitution forbids it.  Congress cannot make it a crime for the president to appoint an ambassador or to command the military because the Constitution explicitly vests these powers in the president.

In general, I view this as a thin category.  Even though Congress may not abrogate or infringe the President's Constitutionally vested executive powers, Congress may still regulate them under the Necessary and Proper Clause.  In addition to granting Congress incidental powers to carry out its enumerated powers, this clause also gives Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."  The power to make incidental laws, thus, extends to the executive branch.  Under this power, I have no doubt that Congress may prescribe the form of pardons and appointments, and it may prohibit the president from accepting bribes in exchange for these executive acts.  But Congress cannot direct the president to appoint a specific person or punish him for using his pardon power.  In general, the breadth of this exemption probably mirrors the scope of inherent and preclusive presidential power—that third category from Justice Jackson's concurrence in the Steel Seizure Cases.

Unlike the immunity from personal jurisdiction, this is not a true "immunity" from criminal prosecution.  A president who raises this defense is simply alleging that the law cannot be constitutionally applied to him.  It is a substantive legal defense based on constitutional separation of powers.

Understanding it this way is better than the effort to separate "private" and "public" acts.  The difficulty of the latter approach was reflected when Trump's lawyer was asked how a prosecutor could charge bribery for an appointment of office.  He answered that the bribe was a private act, while the appointment was a public act, and that a prosecutor could allege the bribe but not the appointment.  Dividing public and private acts this way is too devoid of substance.  A bribe for an appointment to office is a public act in its entirety.  It is a corrupted public act—but it is a public act nonetheless.  A better approach is to recognize that Congress may regulate the presidency, provided the regulations do not intrude upon the executive power.  Of course, hard questions will remain at the margins.

3. Federal Supremacy over State Law.

A third limitation on prosecuting presidents comes from the Supremacy Clause.

State governments cannot prosecute former presidents for the performance of their official duties when the president acts lawfully under federal law. This immunity is broader than its congressional counterpart.  A president is exempt from congressional enactments only to the extent that he has inherent preclusive power.  In Hohfeldian terms, if a president wants to be beyond the scope of federal criminal law, it must be because Congress has a duty to allow the president to act in certain ways (or, correlatively, the president has a claim against Congress that he may act in that way).  In contrast, a president can plead supremacy over state law if he is lawfully acting within his discretion.  In Hohfeldian terms, if the president has a liberty to administer federal laws in certain ways, states cannot criminalize that under the Supremacy Clause.

4. Government Authority Makes it Lawful ("It's not a crime when the President does it.").

In some cases, government actors may do things that private citizens may not do because they act with the authority of law.  The president may administer Social Security and pay for government expenses out of the trust fund, even though no private person could maintain a pension system in which the assets were raided for business operating expenses.  The "public authority" defenses brought up at the Trump oral argument fit into this category, too.  Government officials (and, to a lesser degree, private citizens) have common-law authority to use force to protect public interests, such as using deadly force during the lawful conduct of war or to prevent a forcible felony.

This category does not comprise immunities at all.  This is simply a claim that acting with government authority makes the conduct lawful.  For example, Congress has authorized the executive branch to raid the Social Security Trust Fund.  In some cases (e.g., public authority defenses), the common law recognizes special affirmative defenses for those exercising public power.  Presidents may exercise this common-law power, unless Congress validly abrogates it.  The claim here, thus, is one of lawfulness.

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            Let me close with some final observations about the scope of criminal law.  Many of the difficult constitutional questions identified at oral argument are the result of the Supreme Court turning a blind eye to the broad and vague criminal statutes that are the backbone of federal criminal law today.  As Justice Alito noted during argument, traditionally fraud involved obtaining property under false pretenses.  Today, federal criminal law punishes all "fraud" that interferes with governmental operations.  Perhaps, for example, they could charge a president (or a subordinate employee) with a crime for recklessly giving Congress bad information about another country that caused Congress to authorize the use of force.  The result of these unduly broad laws is to allow federal prosecutors to stretch criminal law into a code of ethics backed with felony penalties.

Relatedly, too much federal criminal law has become about motive, rather than about acts.  Traditionally, criminal law polices acts, which are a combination of scienter and actus reus—e.g., knowingly killing a person.  The law used to be mostly ambivalent about motive, the reason the defendant did the act (e.g., the defendant killed the person because he does not like him or because the defendant refused to repay a debt).  Recently, criminal law is increasingly turning to policing motive, where the same act may be criminal or lawful depending on the motivation of the actor.  Thus, some have argued that President Trump's payment to Stormy Daniels is an election crime if it is motivated by his desire to get elected, but lawful if he wanted to save his marriage.  Likewise, some would argue that it would be a crime if a president orders the FBI not to investigate minor participants in the January 6 riot to protect his political base, while it would be lawful for the President to give the same order if he believed that declining to prosecute some trespassers would help the country heal politically.

This is a dangerous turn in criminal law generally, and it will exacerbate interbranch conflicts when these statutes are weaponized against the executive branch.  Controlling this problem does not require offering the president an "immunity" with little constitutional basis.  It requires the Supreme Court to pay more attention to the developments in substantive federal criminal law and to curb the excesses that have developed.  The rule of law demands that these excesses be curbed for all, not just for the privileged few who have held high political office.