The Volokh Conspiracy

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What Exactly Did Justice Barrett Agree With Chief Justice Roberts On About Presidential Immunity?

We know that she didn't agree on the evidentiary issue. Beyond that, the disjunction is unclear.


I've now had five full days to think about Trump v. United States. I wrote a series of posts about Chief Justice Roberts's majority opinion. When the Chief wants to be clear, he is very clear. When the Chief wants to be opaque, he is very opaque. And when the Chief is trying to hold together a majority opinion, he can be conciliatory. In Trump, Roberts wrote crystal clear prose. And he had no problem holding together his five votes. But the majority opinion made no effort to bring on Justice Barrett as a sixth vote.

Why? In Part III-C, the Court reached out to decide an issue that wasn't presented yet: prosecutors cannot introduce as evidence conduct that is otherwise protected by presidential immunity. Roberts explained:

Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors' deliberations will be prejudiced by their views of the President's policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency

This conclusion follows naturally from the sweeping nature of the Court's decision, but was this question really presented? In the current posture, Trump is an interlocutory appeal from a denial of immunity. There have been no motions in limine to exclude any particular evidence. Indeed, there is no trial date on the horizon. So in a sense, this issue was premature. Why even opine on this issue? As I noted in an earlier post, the Chief Justice appears to be responding to the lawfare against Trump over the past several years, and was trying to clamp down on future efforts to criminalize the presidency. Along similar lines, Will Baude wrote in the Times, "the court sees itself as trying to save the country from other institutions' disproportionate responses to Mr. Trump." Likewise, President Trump's recent filing in the Southern District of Florida sought to stay the proceedings in light of the "ongoing lawfare campaign."

What about Justice Barrett? For sure, we know that she does not agree with Part III-C of the majority opinion. The first sentence of the concurrence states:

For reasons I explain below, I do not join Part III–C of the Court's opinion.

She elaborates on this disagreement later:

I understand most of the Court's opinion to be consistent with these views. I do not join Part III–C, however, which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege. I disagree with that holding; on this score, I agree with the dissent. The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example

Justice Barrett could have written that this evidentiary issue is not yet live, so there is no need to decide it. That would have been the more minimalist approach. But like the majority, Barrett also sought to reach out and resolve an issue that is not yet presented, in full anticipation that this issue would return to the Court should a trial happen. And she resolved it against Trump. Barrett wrote at the tail end of her concurrence:

I appreciate the Court's concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President's protected conduct "if its probative value is substantially outweighed by a danger of . . . unfair prejudice" or "confusing the issues." Fed. Rule Evid. 403. The balance is more likely to favor admitting evidence of an official act in a bribery prosecution, for instance, than one in which the protected conduct has little connection to the charged offense. And if the evidence comes in, the trial court can instruct the jury to consider it only for lawful purposes. I see no need to depart from that familiar and time-tested procedure here.

I see this analysis as consistent with Barrett's Vidal concurrence: where original meaning does not provide a clear meaning, she reverts to balancing tests. And Federal Rule of Evidence 403 is a quintessential balancing test–albeit one adopted by the courts and congress, so it is not "judge made" in the sense of Barrett's Vidal test.

Roberts manages a footnote response to Barrett at the end of Part III-C:

Justice Barrett disagrees, arguing that in a bribery prosecution, for instance, excluding "any mention" of the official act associated with the bribe "would hamstring the prosecution." But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President's motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be "highly intrusive" and would "'seriously cripple'" the President's exercise of his official duties. Fitzgerald.. And such second-guessing would "threaten the independence or effectiveness of the Executive." Trump v. Vance (2020).

Roberts is not convinced the Rules of Evidence provide much safeguards. He is trying to cut off the lawfare, from top to bottom.

This much of the disagreement between Barrett and Roberts is clear. What else do they agree on? Five days later, I am still not entirely sure. The syllabus of the opinion states:

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part.

But did Justice Barrett actually join all of the Court's opinion other than Part III-C?

The second and third sentence of Barrett's concurrence state:

The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President's exercise of core Article II powers and closely related conduct. That said, I would have framed the underlying legal issues differently.

Is "consistent with" equivalent to "joins in full"? I don't think so.

Ed Whelan noted in an "addendum" to his post that he isn't sure what Barrett actually agreed with:

* Addendum: On further review, I'm unclear whether to count Justice Barrett as joining the majority opinion (except for Part III-C). On the one hand, the Court's syllabus states that she does so. On the other hand, she writes only that the "remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President's exercise of core Article II powers and closely related conduct," and she says that she "would have framed the underlying legal issues differently."

I'm with Ed.

So what happened here? For starters, Justice Barrett tries to reconceptualize immunity doctrine. She writes:

I would have framed the underlying legal issues differently. The Court describes the President's constitutional protection from certain prosecutions as an "immunity." As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court's ruling.

There appears to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Special Counsel all accept that some prosecutions of a President's official conduct may be unconstitutional. As for interlocutory review, our precedent recognizes that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President's discretion.

Barrett goes on to suggest that the Court should understand presidential immunity in a same fashion that it considers other challenges to a criminal prosecution:

This two-step analysis—considering first whether the statute applies and then whether its application to the particular facts is constitutional—is similar to the approach that the Special Counsel presses in this Court. It is also our usual approach to considering the validity of statutes in situations raising a constitutional question. See, e.g., Seila Law LLC v. Consumer Financial Protection Bureau (2020). An important difference in this context is that the President is entitled to an interlocutory appeal of the trial court's ruling. A criminal defendant in federal court normally must wait until after trial to seek review of the trial court's refusal to dismiss charges. But where trial itself threatens certain constitutional interests, we have treated the trial court's resolution of the issue as a "final decision" for purposes of appellate jurisdiction. . . .

"Certain constitutional interests" Like immunity?

I'll be honest. I do not understand Barrett's attempt to distinguish her approach from the majority. And let me sketch out my confusion.

In the general course, criminal defendants can raise a whole host of constitutional challenges to dismiss an indictment. For example, Rahimi can argue that Section 921(g) violates the Second Amendment–whether the challenge was "as applied" or "facial" still befuddles me. Trump can argue that the appointment of Special Counsel Jack Smith violates the Appointments Clause. John Lawrence can argue that the application of Texas's sodomy violates the Fourteenth Amendment. And so on. But if a court declines to dismiss the indictment on any of these grounds, the case goes forward to trial. Of course the criminal defendant can raise these preserved issues on direct appeal, but there is no interlocutory appeal. Indeed, the defendant may be sitting in prison while a valid constitutional argument is presented on appeal.

Immunity is different–both in the civil and criminal context. Where a person has some form of immunity (whether qualified or absolute) the entire basis of the proceeding must halt immediately. If a person is immune, there is nothing the court can do. It's as if the President had issued a pardon. The proceedings must cease. We also see this dynamic in so-called "Supremacy Clause Immunity" cases filed in state court. Indeed, even if the district court denies immunity, the defendant can seek an interlocutory appeal to determine whether immunity should attach. Critically, that appeal comes before the trial. To be sure, immunity is not squarely defined in the Constitution. I won't even try to defend Roberts's opinion on originalist grounds. There is an entire cottage industry arguing that qualified immunity is a made-up thing that should be abolished. And there is a similar argument that absolute criminal immunity is a made-up thing that should be abolished–or at least not afforded to the President.

Justice Barrett, if I had to guess, was uncomfortable with the made-up doctrine of absolute immunity, which is not supported with a rigorous historical record. Not to beat a dead horse, but she really wants lawyers to present tightly-framed arguments that satisfy the Barrett burden of proof. Nothing close to that burden was established in Trump.

What was Justice Barrett to do? She couldn't agree with Roberts's functionalist analysis. And she didn't agree with the dissenters rejection of immunity. So she made some stuff up. She tried to reconceptualize immunity in light of other doctrines that are well grounded.

But this argument doesn't work. I had the same reaction as Howard Wasserman: why is a denial of immunity subject to an interlocutory appeal, but a denial of a motion to dismiss on First or Second Amendment grounds not subject to an interlocutory appeal?

[Barrett's] conception of a constitutional defense to a prosecution places presidential immunity on the same footing as the separation of powers and First Amendment defenses above. So why is the first immediately reviewable and the other two not? She never explains. Souter's considerations about underlying interests provide a way out. Although all derive from the Constitution, the latter two (and certainly the third) protect individual liberty interests; the first protects broad systemic interests of the presidency and the ability of the President to act within the constitutional system. That distinction may be wrong. Separation of powers in Seila Law serves structural interests of preserving the President's removal power; one could argue individual liberties serve structural interests of limiting government power. Maybe Barrett's position, taken seriously, explodes the COD or forcse the Court to make absurd distinctions to ensure COD remains a "small class of claims."

If immunity is no different than other kinds of constitutional challenges, then it should be treated in the same fashion. Maybe the answer is that all constitutional challenges should be permitted to take an interlocutory appeal? Or maybe cases that involve, structural challenges, like the Appointments Clause or Commerce Clause, are different that challenges based on the Bill of Rights. But that approach would grind the criminal justice system to a halt.

Where does all of this leave us? Justice Barrett, as I've said many times, still approaches these issues as a law professor would. If some doctrine doesn't make sense to her, she tries to frame it in terms that do make sense to her. Law professors, as a bunch, are not required to put forward generalized, unifying theories of everything. We can work incrementally, with fits and starts. But in a Supreme Court decision, with sweeping consequences, you have to dot all of your Is and cross all of your Ts.

Co-blogger Jon Adler finds Barrett's approach more satisfying. I do not know why. I found it frustrating. At least Roberts's majority had the virtue of simplicity. Will Baude told Bloomberg Law that Barrett is the "intellectual and theoretical leader on the court." I think we nowhere close to dethroning Justice Thomas as the "intellectual and theoretical leader on the court." When Thomas writes separately, he tends to be comprehensive, and lays out a coherent framework of where the Court should go, and how litigants should frame the issue. Justice Barrett is the kind of Justice that law professors will love. I can see why. But I have no idea what to do with Justice Barrett's concurrence, and I doubt most lawyers will either.