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.

*          *          *

            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.

 

Comments

[Michael Ejercito]

You make a great point about broad and vague criminal statutes.

This was what qualified immunity was supposed to protect against.

[windycityattorney]

Is qualified immunity not more of a civil defense from lawsuit vs immunity from being criminally charged?

[TheAmazingEmu]

It's not because qualified immunity applies only to civil cases. It's what the rule of lenity is supposed to protect against.

[Kazinski]

Well actually its what blue wall prosecutors protect against.

[Lee Moore]

I should say that this learned and interesting analysis, though it doesn’t seem to map to anything actually written down anywhere, which for me counts against it, helpfully provides acres of space into which SCOTUS will be able to kick the ball, in the hope that the game will end before it comes back to them.

[Martinned2]

How is it consistent with the President's duty to ensure the execution of the laws that it is assumed that he would, and that he would be entitled to, prevent his own prosecution where there is (otherwise) sufficient evidence to go to trial? I would think that, in that circumstance, the constitution would require him to recuse himself from all discussion of the prosecution, and otherwise let it go ahead.

[Bob from Ohio]

Where is this "Recuse Clause" in the Constitution?

[Martinned2]

he shall take Care that the Laws be faithfully executed

What Leider is describing is the opposite of that.

[Bob from Ohio]

"The executive power shall be vested in a President of the United States of America."

Prosecutions are part of the "executive power". If Congress thinks the president is acting corruptly, they are welcome to impeach and remove.

[Martinned2]

Yes, and that executive power is to be used in a way that secures that the laws are faithfully executed, not in a way that prevents a prosecution that would otherwise be entirely appropriate. I'm not sure why you think the bit you quoted supports a right for the president to prevent lawful prosecutions for reasons unrelated to the public good.

[MaddogEngineer]

This is not how Americans do constitutional law. You can't be both head of a branch of government yet be expected to disqualify yourself according to an ambiguous understanding of "faithfully executed". You think "faithfully executed" requires recusal, but you're not the president. Oh well! I wonder how such a disagreement can be resolved in the American constitutional system...

There's a reason the Constitution specifies the chief justice to preside at a Senate impeachment trial of the president. Because that's the only time that office holder is subject to the judicial determinations of another constitutional authority. Checks and balances, not implicit recusal requirements which are subjective/arguable.

[Martinned2]

I'm also not sold on the idea that all state prosecutions would necessarily interfere with the President's ability to do his job. I guess that's because I don't think the defendant should necessarily have to show up for his trial. If he does, that would be a bigger problem, I agree.

[Randal]

Did you even read the OP?

[Noscitur a sociis]

1. They do, generally.

2. I realize this seems strange to Europeans, but in civilized countries like the U.S., we generally put in prison once they're convicted, and often restrain their liberties quite a bit pending trial. That's more the part that would implicate the supremacy clause than the trial itself.

[Martinned2]

2. Leaving to one side the question of whether a reasonable person would describe the US (or its criminal justice system) as "civilized", my distinct impression is that in the US rich people rarely end up with serious restrictions on their liberty before trial, and don't tend to be convicted until years after the initial prosecution decision is taken. Even in Harvey Weinstein's case it took two years from arrest to conviction. So I don't think a sitting president who is arrested while in office would have to worry about any prosecution against him finishing before his term ends. Am I wrong?

[Kazinski]

"Leaving to one side the question of whether a reasonable person would describe the US (or its criminal justice system) as “civilized”"

Maybe not, but at least for violent crimes, most of the perps aren't civilized. It doesn't seem to help just talking down to them.

[Martinned2]

Maybe not, but at least for violent crimes, most of the perps aren’t civilized.

Well, they're not after society is finished treating them like animals for years or decades.

[Nige]

For profit.

[MaddogEngineer]

Maybe you shouldn't comment on things you don't know little about. I'd suggest you start with McCulloch v Maryland, up through the the federal fugitive slave law/enforcement controversies of the 1850s. And more recently the contentious issue of border enforcement.

If the supremacy clause applies to any lesser federal official it most certainly applies to the president.

[Stephen Lathrop]

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.

It could be viewed that way, but not by any historian aware that the President possesses no greater share of this nation's joint popular sovereignty than any other citizen. Indeed, a private citizen who has not sworn an oath to defend the Constitution is arguably entitled to more legal deference than a President who has sworn such an oath, but who has committed a felony in office.

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.

On any historical basis, that is utterly implausible. It is historical gibberish. It is decapitated constitutionalism. It has nothing at all to do with this nation's history and tradition. It would stand against that history and tradition. It amounts to saying, "We can solve this problem; let's have a king after all."

Thus, the inconveniences of a mis-designed executive branch—one which puts the Justice Department under the President's authority even in cases pertaining to the President's crimes—is the only problem to be dealt with. Two solutions come to mind.

The first is simple. Rely on the Constitution as designed, extend immunity for presidential felonies to the President while he/she serves, remove the incumbent by impeachment, but charge any crimes in office against the former office-holder. Basically, the solution the nation already has. But just make it formally clear that once out of office, the former President is as responsible for crimes as anyone else. The Supreme Court seems to have the power to do that now, but looks unlikely to do it. That unlikelihood manifests a different urgent problem to be addressed another day.

The second solution would probably prove better, but impossible to implement now. That would be an amendment to formalize in the Justice Department, or outside of it, a court of sovereign justice, with officials who report only to the People themselves, and who have no other function than to keep an eye on the President, and possibly the Vice President.

Prosecutors empowered to practice before a court of sovereign justice ought to be empowered specifically to investigate and charge criminal felonies committed while a President is in office, but be constitutionally barred from prosecuting political offenses constituting high crimes and misdemeanors. The latter should continue to be reserved for impeachments under the present system.

The questions how to constitute and administer any such court of sovereign justice, and what qualifications should be required of anyone appointed as an officer of such a court, would be constitutionally challenging in themselves, but no more difficult than many of the other key questions confronted by the original founders.

Indeed, the pickle the nation now finds itself in is probably a historical relic of loose ends the founders discovered they could not quite tie together while meeting in Philadelphia. Had they been magically informed where that bit of parliamentary carelessness would lead the nation now, I suppose the founders would have kept at it and got it done. Of course, they never anticipated the election of someone as untrustworthy as President Donald Trump.

To say that, however, is not to assert that Trump is the only reason a corrective amendment ought to be passed. No one can tell from what political province the next such untrustworthy president may come.

The U.S. presidency is an office uniquely powerful among putative democracies in today's world, but it is also an oddity for another reason, because it goes unsupported by any imputation of sovereignty. It is thus an office that must remain at all times under direct sovereign control to function reliably, and no institutional means to deliver that control currently exists. That is an omission which can only be corrected by an amendment.

[Noscitur a sociis]

The first is simple. Rely on the Constitution as designed, extend immunity for presidential felonies to the President while he/she serves, remove the incumbent by impeachment, but charge any crimes in office against the former office-holder.

You mean, exactly the way that Prof. Leider is suggesting in the very passage you're criticizing?

[DaveM]

Hmm. I’m trying to get to your side of the fence, but I keep getting hung up on the fact that a President is an entire branch of the government, and we have exactly one thing, and ONLY one thing, that can be done to remove him from power before his time. It’s as “sovereign” as it could get under our system.

[Martinned2]

The President is not, on his own, a branch of government. If you read your Constitution, in Article II alone there is discussion of many other executive branch officers, like the Vice President, an entire Army and Navy, the principal Officers in each of the executive Departments, Ambassadors, other public Ministers and Consuls, other Officers of the United States, inferior Officers, Heads of Departments, and all civil Officers of the United States.

[Rev. Arthur L. Kirkland]

"ONLY one thing, that can be done to remove him from power before his time."

Which of impeachment and the 25th Amendment does not count?

[Stephen Lathrop]

DaveM, I guess it has been too long since I last posted this. Here is the commentary of founder James Wilson on the point you make:

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable . . . Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.

Wilson was an ally of Madison. He led the Committee of Detail, which delivered the near-final draft of the Constitution, written in Wilson's hand. Wilson served on the nation's first Supreme Court. He was one of only six founders to sign both the Declaration of Independence and the Constitution. Note that the gist of the passage above appears also in the DOI, thus:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

It is plausible to suppose that passage from the pen of Jefferson was borrowed from Wilson; it aligns closely with other commentary by Wilson dating back to the 1860s. Wilson has been counted by historians as the principal constitutional architect of the executive branch, by the way.

Historically speaking, it is a mistake to insist that the President is in any way the sovereign of the United States.

[TheAmazingEmu]

I think this is definitely a helpful framework.

For number 3 - regarding state prosecutions, there is a case that might be helpful - In re Neagle. It was not a prosecution of the act of the President, of course, but someone acting under orders of the President. The question was whether the President had the lawful authority to order him to do something (and he was executing that lawful authority). When a state prosecuted someone for something within the lawful authority of the federal government, there was a right to seek a Writ of Habeas Corpus.

The case is from 1890, though, so it has one thing that seems alien to modern jurisprudence. There's no analysis of Good Faith. Either the lawful authority exists or it doesn't (and that's because acts without authority are never lawful).

[MatthewSlyfield]

“The president may administer Social Security and pay for government expenses out of the trust fund”

The President cannot pay for government expenses out of the Social Security trust fund, not because this is prohibited, but because it is impossible. There is no spendable money in the SS trust fund, and their never has been.

The original Social Security Act from the 1930s requires that every dollar in the trust fund must be invested in securities no riskier than US Treasury Bonds. In practice, this means that the only thing in the SS trust fund is US Treasury bonds.

What is a US Treasury bond? It’s an IOU. The SS trust fund is not money that the SSA has, it’s money that the general fund owes to Social Security.

When someone (including the Social Security Administration) buys a treasury bond where does the cash money go? It goes to the general fund.

So, to recap, there is nothing (and there never has been) in the SS trust fund that can be used to pay actual government expenses.

The SS trust fund is and always has been nothing but a smoke screen.

This concludes today's rant.

[Josh R]

No need to rant. "Pay for government expenses out of the trust fund" is a sloppy way to say use SS operating surplus cash to fund general federal expenses by giving the cash to the Treasury in exchange for federal notes that are placed in the trust fund.

[Randal]

When someone... buys a treasury bond where does the cash money go? It goes to the general fund.

As Josh said… that’s what “pay for government expenses out of the trust fund” means.

[Kazinski]

Kind of leaves a big loophole though between the FED and the SS system. The fed "prints" money and uses it to buy the securities needed to buy the securities they need to redeem to pay benefits.

Of course the crunch comes when the securities are all sold and incoming cash doesn't pay current benefits. They can paper it over with deficits, where the fed buys the securities directly from the treasury, but that certainly is more visible about what's going on.

But that is all monetary policy, which may or may not be manageable. There is a real economy which is 9/10's of the iceberg: is production >= baseline consumption. When it is all the monetary crap can be managed, or fudged. When it isnt manageble whether because of depopulation and overwhelmingly large unproductive elderly population, or overzealous, net zero, or an unchecked climate crises (I'm at least trying to hit both sides here) then the real spiral to the bottom happens.

[M L]

Very helpful summary about the "immunity" issues. Also great point about the absurd excesses of the federal criminal code and everything turning on "motive."

[NvEric]

Your sources of reference are dismissed due to blatant bias against Trump. There will never be rational discussion in the current climate of rampant extremism, by both sides, for these sides are minority views taken solely to support harmful expedients and dictate harmful views to influence an election.

For or against Trump - it does not matter. Corruptive campaigning is bad enough, but using legal garbage is unacceptable at this point in time. The People are swimming in the vomit of legal nonsense - nonstop since 2015/2016. Smarmy legal sloths destroy their own to preserve nothing of value except the degeneracy of the system itself. What does victory look like ?

This period in our history seems more like a few from the Roman Empire, and as such it's easy to see why Rome fell when it did and Constantinople lasted another 977 years.

Next !

[Josh R]

Leaving aside the final note about broadness and vagueness, I'm not seeing how Trump's conduct falls under any of the four categories.

[Dilan Esper]

I agree that (2) is a thin category, but I think the law professors’ (and it’s lots of them) desire to not call this immunity is tendentious at best and a lie at worst.

Let’s take an example. President Smith pardons someone, in a controversial pardon. President Jones replaces him, from the other party, and his DOJ charges former President Smith with obstruction of justice based on the theory that the pardon interfered with a legitimate prosecution. District Judge Robinson, a Jones appointee, refuses to dismiss the case.

Does former President Smith get an immediate appeal to get that charge dismissed? Of course he does, and I think the desire of a bunch of law professors to say that he wouldn’t is kind of perverse and sickening.

[Noscitur a sociis]

Of course he does, and I think the desire of a bunch of law professors to say that he wouldn’t is kind of perverse and sickening.

Can you elaborate? I can’t say that this provokes quite the same reaction from me.

Edit: in terms of the vehemence, I mean: my intuition about how a case would likely play out isn’t too different from yours, although I’d want to spend some more time thinking about and researching it first.

[Dilan Esper]

The category is "stuff that is exclusive to the President under Article II". Here's another example-- Congress can't make it a crime for the President to veto a bill. They can override the veto, but they can't make the exercise of the veto a crime.

To me, that's an immunity, and the import of something being an immunity is you don't have to wait for conviction; you get immediate appellate review. And a LOT of law professors seemingly just hate presidential immunity period and don't want to admit that category (2)'s are immunities.

[David Nieporent]

I don't think that's an immunity. An immunity claim is, "Even though it is illegal for the president to do X, he can't be prosecuted for it." A law that purports to make it illegal for the president to veto a bill is simply an unconstitutional law beyond the power of Congress to enact.

[Dilan Esper]

Of course it is an immunity. Again, reason backwards. Former President is prosecuted for it. Does the prosecutor acting unconstitutionally get to convict and even imprison the former President before the conviction can be appealed?

Of course not. The President is immune.

[David Nieporent]

I agree that you are indeed reasoning backwards. You want there to be interlocutory appeals, so therefore this must be characterized as an immunity so that such appeals will be available.

But why? Other people being prosecuted under possibly unconstitutional laws don't get interlocutory appeals as of right; why should former presidents be special?

[Kazinski]

Wait!!!

You don't want interlocutory appeals?

Someone that is being prosecuted under a law, that has been thrown out decades before can't challenge the prosecution until they've been convicted and serving their sentence?

I thought I was as hard ass (my wife concedes its merely firm).

[David Nieporent]

You don’t want interlocutory appeals?

Is that what I said?

(Answer: it is not.)

[MaddogEngineer]

How do you know it's illegal for the president to do X? That's begging the question. Immunity is just a way of saying that a judicial proceeding can't be pursued against a person, because the law doesn't apply to them. There's the underlying disagreement about how much Congress can constrict a president by law, and what enforcement mechanism exists to do that. I'd say the power of the purse is a better tool in many cases, though that does not fully address personal actions.

[MaddogEngineer]

And Andrew Weissman! Don’t forget him, that is his pet theory after all.

[DaveM]

A breath of fresh air. When things aren't working, always examine your assumptions, and especially how you are thinking about the problem. Trying to pry apart "private" from "official" acts is crazy. Your way of thinking is much cleaner.

Money quote: "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."

[mydisplayname]

Both the author of the post and BobFromOhio make the points that (1) there are things Congress cannot change and (2) as members of the Department of Justice, federal prosecutors are subordinate to the sitting President: the fact that Congress _could_ impeach and remove a sitting President, but does not, itself speaks volumes.

The final paragraph of the original post, implicitly referencing the prior "criminal law is increasingly turning to policing motive, where the same act may be criminal or lawful depending on the motivation of the actor" remark, seems to strike the right balance: "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."

A friend from Moscow once (in the early 1980s) mentioned that a nation with many laws selectively enforced is doomed whereas a nation with fewer laws consistently enforced will stand. He was correct... and the comment remains in my thoughts. It's applicable to a multitude of circumstances [including, sadly, US relations with Israel and intra-American relations with student protesters].

[Martinned2]

the fact that Congress _could_ impeach and remove a sitting President, but does not, itself speaks volumes

No it doesn't. There are lots of things that Congress does or doesn't do, that have no bearing on what Executive Branch officials may or may not do. Most of the time Congress does nothing, but that doesn't mean that the powers of Executive Branch officials are somehow diminished. The powers of the Executive Branch depend only on the laws that Congress has made, not on the laws it hasn't made.

Or, to put that simpler, criminal prosecution and impeachment are completely separate processes, that have nothing to do with each other.

[Kazinski]

“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.”

This is similar to what I suggested in an earlier thread, A mens rea immunity doctrine for the President: setting a standard that the prosecution has to prove official acts were done with an improper motive, not merely suggest it. Thus prosecuting a president can be done but the prosecutor has an additional burden of either showing the act was not official, or if it was then prove the motive not only provided a private benefit, but was solely intended to provide a private benefit.

“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.”

Paying Stormy Daniels was clearly not an official act, it happened before he was president anyway, but I don’t doubt Trump had at least two motivations, not have the incident further complicate his campaign (although how much worse could.it be after the “grab them by the pussy” tape?), and not to cause any problems in his marriage.

But there better be a clear law that paying stormy Daniels hush money was illegal, which there is not, otherwise they could throw politicians in jail for kissing babies because its an overt act in a conspiracy to promote a candidacy for public office.