The Volokh Conspiracy

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Supreme Court

Goldsmith on the Trump Immunity Decision

A thoughtful, sober take on Trump v. United States.


Over at the Lawfare Blog, Jack Goldsmith offers some initial thoughts on the Supreme Court's decision in Trump v. United States. As with just-about everything Goldsmith writes on executive power and executive branch accountability, it is worth a read. [Readers may also recall that Goldsmith was one of the first to explain why the Supreme Court should review the D.C. Circuit's decision rejecting any claim of presidential immunity.]

Here's a taste of his latest piece:

The Court faced a slew of novel questions about the scope of presidential power. Many people seem to have a strong opinion about whether the Court's recognition of fairly broad presidential immunity was "right" or "wrong." But the standard sources of constitutional law do not permit a definitive answer to that question. And on the ultimate question of whether the Court's decision was wise, only time will tell.

The case involves a tension at the heart of the U.S. Constitution. Article II vests the president of the United States with the "executive Power" and gives the president a duty to "take Care that the Laws be faithfully executed." These phrases give the president power to interpret the law for the executive branch, to enforce the law (including prosecutorial decisions), to supervise the running of the government (including firing subordinate executive branch officials), and to direct government policy.

These same phrases—especially the "take Care" Clause—also ensure that the president is not above the law. The great paradox of the American presidency is that the same constitutional provisions that render the president beholden to law also endow the presidency with extraordinary power and discretion to interpret and enforce the law, and thus give an unscrupulous president tools to abuse the law.

The paradox is on palpable display in the Biden administration's prosecution of former President Trump. The case raises many difficult questions about what it means for the president to carry out the great functions of the office under law, but they can largely be reduced to two. First, did Trump commit crimes in his postelection intrigues? And second, did Special Counsel Jack Smith unduly threaten the presidency when he charged the former president with these crimes?

As Goldsmith observes, the attorneys in the Office of Special Counsel acknowledged that the case presented far more difficult questions, and required a more nuanced answer, than most of the legal commentariat appearing on cable news. At oral argument the special counsel made numerous concessions that one was unlikely to hear on MSNBC.

It is fair (indeed, important) to note that there is no explicit textual basis for any form of presidential immunity. There are multiple, non-textualist precedents that point the other way, however (Nixon v. Fitzgerald in particular), and few were calling for the Court to sweep those precedents away. Further, as Justice Barrett noted in her concurrence. there are structural reasons why some form of immunity is inevitable. If Congress cannot regulate or control certain exercises of executive power (that power which falls in the first box of Justice Robert Jackson's Youngstown Steel concurrence), then it follows that such exercises of executive power cannot be criminalized.

The Constitution was not written to constrain an unfit occupant of the White House. That is ultimately the job of Congress and the electorate.