The Volokh Conspiracy

In the aftermath of Trump v. United States, I wrote a series of posts breaking down most facets of the opinion as a doctrinal matter (1, 2, 3, 4, 5, 6, 7, 8). My general impression is that the decision was not premised on original public meaning, but was a mishmash of precedent, pragmatism, and "traditionalism." Yet the reaction was one of stunned outrage! It is the next Roe v. Wade. We need a constitutional amendment to overrule it. We need to pack the Supreme Court! And so on.

Never forget, most commentary about the Supreme Court is performative. Critics have a vested interest in making the decisions seem so much worse than they really are. There really should not have been much of a surprise here.

First, Nixon v. Fitzgerald has been on the books for decades. That decision established absolute civil immunity for all acts within the "outer perimeter" of the President's duties. No one asked the Court to reconsider Nixon, so that was precedent. During oral argument, Justices Jackson and Sotomayor repeatedly tried to explain why civil immunity made sense, but criminal immunity did not. But the majority disagreed. Critically, the Court found that it would make no sense to provide immunity for civil suits, but not for criminal prosecutions. Indeed, as I noted, the risks from a criminal prosecution of the President are greater than the risk of a civil lawsuit. One the Court declined to distinguish civil and criminal suits, it follows naturally that the absolute immunity recognized in Nixon would apply in the criminal context for Trump. None of this should be surprising.

Second, once the Court recognized that there would be absolute immunity for "core" powers, and presumptive immunity for other actions, the Court had to adopt some test. The Fitzgerald Court's "outer perimeter" test was never particularly helpful. Instead, Chief Justice Roberts borrowed from Blasingame v. Trump, a precedent from the D.C. Circuit. This case involved a civil suit against President Trump for his role on January 6:

For those reasons, the immunity we have recognized extends to the "outer perimeter" of the President's official responsibilities, covering actions so long as they are "not manifestly or palpably beyond [his] authority." Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have "refused to draw functional lines finer than history and reason would support").

Given Fitzgerald, and how the lower courts have applied Fitzgerald, the Court was going to have to apply some sort of test to determine immunity. The Court gave some guidance to the lower courts. I don't know how helpful it will be, but the Court here was treading in uncertain territory. Is the framework so unreasonable?

Third, I think most of the critics of the decision still believe that the law can constrain a populist presidential candidate. It can't. Alvin Bragg, Jack Smith, Fani Willis, and so on. None of them have made a dent on Trump. The WSJ summed things up nicely:

None of this is a vindication of Mr. Trump's conduct or an endorsement of paying off a porn star, trying to overturn the 2020 election, or refusing to help a besieged Congress on Jan. 6. But as the past nine years have shown over and over, Mr. Trump's biggest opponents are often his best asset. They convinced themselves he won in 2016 by colluding with Russia, and special counsel Robert Mueller would get to the bottom of it. They impeached him twice. Mr. Trump plowed through it all.

It is a fantasy to believe that any test that Chief Justice Roberts could make up would control this president or any other. The law only goes so far.

Everyone should take a deep breath. The only way to defeat Trump is at the ballot box. That was true in 2016. That was true in 2020. And it will be true in 2024.

Both of their bodyguards shot someone.

Last week, a Deputy U.S. Marshall, assigned to protect Justice Sotomayor, shot a carjacker:

 A member of Supreme Court Justice Sonia Sotomayor's security detail shot an armed man during an attempted carjacking in the early morning hours, according to court documents.

It happened as two deputy U.S. Marshals were on duty in a government car in Washington, D.C., about 1 a.m. on July 5. They were confronted by a man who got out of a silver minivan and pointed a gun at one of them through the driver's side window, according to a criminal complaint. The car was unmarked but the pair were dressed in U.S. Marshals shirts.

The deputy pulled out his department-issued gun and shot the man about four times, hitting him in the mouth. He then gave the man first aid while the minivan drove away, charges state. The suspect was hospitalized and placed under arrest on suspicion of attempted carjacking and resisting officers.

In 1889, the Attorney General appointed David Neagle, a Deputy U.S. Marshall, to serve as Justice Stephen Field's bodyguard. Neagle fatally shot a man while the Justice was riding circuit in California. No actual statute authorized the Attorney General to appoint the bodyguard. But in In Re Neagle, the Supreme Court held that the Attorney General could rely on the President's obligation to take care that the laws are faithfully executed.

This might be one of the few things Sotomayor and Field have in common. I suspect that Sotomayor would not agree with Field's concurrence in Bradwell v. Illinois.

I've written two other posts about Grants Pass v. Johnson. First, I commented on whether the law in fact criminalizes the mere status of being homeless, or whether it criminalizes the act of camping in public. Second, I wrote how the Court constrained Robinson v. California, an inherently un-originalist precedent, by declining to extend it.

Here, I will comment on another unusual aspect of the majority opinion: how heavily the majority opinion leaned into amicus briefs. Indeed, Justice Gorsuch's majority opinion cited not only merit-stage briefs, but also cert-stage briefs. The import was clear: even deep-blue jurisdictions from California and similar bastions of leftism contend that the Ninth Circuit's jurisprudence is mistaken. They urged the Court to take the case, and urged the Court to reverse! The majority was quite content to answer the prayer from these progressive enclaves.

Here are just a smattering of citations:

Read More

In February, 2023, former Vice President Mike Pence invoked the Speech or Debate Clause to challenge a subpoena from the Special Counsel. I explained that, as a matter of text, this argument didn't fly. The Speech or Debate refers to "Senators and Representatives." The Vice President is the President of the Senate, but is not a Senator. However, there are a string of precedents which could support a more functional reading of the Speech of Debate Clause. And, in June 2023, Judge Boasberg found that Vice President Pence received some protections under the Speech or Debate Clause for his role on January 6. I did not find that decision persuasive as a textual matter, but there is some precedent on point that the court followed.

Part III-B-2 of Trump v. United States reminded me of Pence's case. Here, Chief Justice Roberts discussed whether President Trump's communications with Vice President Pence leading up to, and during, January 6, would be immune from prosecution.

To be sure, the President has an interest in legislation that is being considered in the Senate. And, as President of the Senate, the Vice President plays a unique role in that process. If the Senate is evenly divided, the Vice President can cast a tie-breaking vote. Chief Justice Roberts explains that with respect to legislation, the President has an important role in having communications with the Vice President. These communications would be presumptively immune from any congressional regulations:

[O]ur constitutional system anticipates that the President and Vice President will remain in close contact regarding their official duties over the course of the President's term in office. These two officials are the only ones "elected by the entire Nation." Seila Law; see Art. II, §1. . . . And Article I of course names the Vice President as President of the Senate and gives him a tiebreaking vote. §3, cl. 4. It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President's agenda in Congress and beyond. The Vice President may in practice also serve as one of the President's closest advisers.

I think that argument is correct when discussing legislative sessions. But does it work with regard to the joint session? The Constitution assigns the President of the Senate particular functions during the joint session of Congress. Roberts acknowledges that the President does not have a role in that process:

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. . . . Ibid. Despite the Vice President's expansive role of advising and assisting the President within the Executive Branch, the Vice President's Article I responsibility of "presiding over the Senate" is "not an 'executive branch' function." Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President's Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President's role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President's communications with the Vice President concerning the certification proceeding does not pose "dangers of intrusion on the authority and functions of the Executive Branch." Fitzgerald.

Yet Roberts signals that the President's interest in legislation could still extend to the Vice President's role in the joint session:

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President's agenda in Congress. When the Senate is closely divided, for instance, the Vice President's tiebreaking vote may be crucial for confirming the President's nominees and passing laws that align with the President's policies. Applying a criminal prohibition to the President's conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President's ability to perform his constitutional functions.

Justice Sotomayor responds in her dissent:

The majority admits that the Vice President's responsibility "'presiding over the Senate' " is "'not an "executive branch" function,'" and it further admits that the President "plays no direct constitutional or statutory role" in the counting of electoral votes. Yet the majority refuses to conclude that Trump lacks immunity for his alleged attempts to "enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice President "to advance [his] agenda in Congress." Such a prosecution, according to the majority, "may well hinder the President's ability to perform his constitutional functions." Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one.

If the District Court is correct about the Vice President's role, with regard to the Speech or Debate Clause, I think it would be harder to make the case that the President's discussions with the Vice President about the joint session would not be immune.

Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics--not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.

This argument was not raised by the defendant. Justice Gorsuch's majority opinion explains:

Reaching that conclusion under the banner of the Eighth Amendment may have come as a surprise to the litigants.Mr. Robinson challenged his conviction principally on the ground that it offended the Fourteenth Amendment's guarantee of due process of law. . . . Mr. Robinson's resort to the Eighth Amendment was comparatively brief. He referenced it only in passing, and only for the proposition that forcing a drug addict like himself to go "'cold turkey'" in a jail cell after conviction entailed such "intense mental and physical torment" that it was akin to "the burning of witches at the stake." Robinson Brief 30. The State responded to that argument with barely a paragraph of analysis, Brief for Appellee in Robinson v. California, O. T. 1961, No. 61–554, pp. 22–23, and it received virtually no attention at oral argument.

During oral argument, there were zero questions about the Eighth Amendment--I found one fleeting reference to a "cruel and unusual punishment," but that was it.

Robinson resembles another Warren Court classic decided one year earlier, Mapp v. Ohio (1961). In that landmark precedent, the Court transformed a First Amendment obscenity case into a Fourth Amendment case. The Court "incorporated" the exclusionary rule and overturned Wolf v. Colorado, even tough the Defendant did not seek to overrule that precedent, only the ACLU as amicus did. Whenever current members of the Court want to complain about the Court reaching out to decide issues that are not presented, they should think carefully about Mapp and Robinson. But at least in Grant's Pass, Justice Sotomayor's dissent preached fidelity to a precedent that was manufactured out of thin air without the benefit of party presentation. So much for judicial "modesty."

The most obvious response to Robinson would be to overrule it. But, in an act of restraint, the Roberts Court declines to overrule a precedent that Grants Pass did not ask to overrule. (A MAGA Court would have held that the Fourteenth Amendment requires the government to protect citizens from homeless encampments.)

Justice Thomas's concurrence explains at length why Robinson ought to be overruled.

First, the precedent that the respondents primarily rely upon, Robinson v. California, 370 U. S. 660 (1962), was wrongly decided. In Robinson, the Court held that the Cruel and Unusual Punishments Clause prohibits the enforcement of laws criminalizing a person's status. That holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause. That fact is unsurprising given that the Robinson Court made no attempt to analyze the Eighth Amendment's text or discern its original meaning. Instead, Robinson's holding rested almost entirely on the Court's understanding of public opinion: The Robinson Court observed that "in the light of contemporary human knowledge, a law which made a criminal offense of . . . a disease [such as narcotics addiction] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Modern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause—or any provision of the Constitution for that matter.

If you're looking for the "intellectual and theoretical leader on the court" of the Court, it is still Justice Thomas. Justice Barrett tends to write separately to moderate when she cannot join a conservative majority opinion in full. To be a leader, one must be followed. I've yet to see anyone follow Justice Barrett on or off the Court.

The majority, though, finds no need to overrule Robinson because this case is distinguishable.

Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit's course since Martin. In Robinson, the Court expressly recognized the "broad power" States enjoy over the substance of their criminal laws, stressing that they may criminalize knowing or intentional drug use even by those suffering from addiction. 370 U. S., at 664, 666. The Court held only that a State may not criminalize the "'status'" of being an addict. Id., at 666. In criminalizing a mere status, Robinson stressed, California had taken a historically anomalous approach toward criminal liability. One, in fact, this Court has not encountered since Robinson itself.

Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like "occupy[ing] a campsite" on public property "for the purpose of maintaining a temporary place to live." … In that respect, the city's laws parallel those found in countless jurisdictions across the country. See Part I–A, supra. And because laws like these do not criminalize mere status, Robinson is not implicated.

But are the cases distinguishable? Depends how you look at it. As I explained in an earlier post, the Court's conservatives and liberals have long argued about whether to characterize laws as regulations on the basis of status or conduct. I think Justice Sotomayor's dissent makes some fair points, so long as you accept the "status" framing of the case. I won't rehash that debate here.

Rather, what is important is that the majority recognized that Robinson was inconsistent with original meaning, and declined to extend that non-originalist precedent.

The plaintiffs sought to extend Robinson:

If Robinson does not control this case, the plaintiffs andthe dissent argue, we should extend it so that it does. Perhaps a person does not violate ordinances like Grants Pass'ssimply by being homeless but only by engaging in certain acts (actus rei) with certain mental states (mentes reae).Still, the plaintiffs and the dissent insist, laws like these seek to regulate actions that are in some sense "involuntary," for some homeless persons cannot help but do what the law forbids. See Brief for Respondents 24–25, 29, 32; post, at 16–17 (opinion of SOTOMAYOR, J.). And, the plaintiffs and the dissent continue, we should extend Robinson to prohibit the enforcement of laws that operate this way—laws that don't proscribe status as such but that proscribe acts, even acts undertaken with some required mentalstate, the defendant cannot help but undertake.

But the Court declined that invitation:

As we have seen, Robinson already sits uneasily with the Amendment's terms, original meaning, and our precedents. Its holding is restricted to laws that criminalize "mere status." Nothing in the decision called into question the "broad power" of States to regulate acts undertaken with some mens rea. And, just as in Powell, we discern nothing in the Eighth Amendment that might provide us with lawful authority to extend Robinson beyond its narrow holding.

This is precisely what the Supreme Court, and all courts should do with non-originalist precedents that do not govern a particular case: refuse to extend it to new circumstances. I developed this theme in my article, Originalism and Stare Decisis in the Lower Courts. Even if an erroneous precedent cannot be overruled, courts should isolate the damage, and decline to extend it to new circumstances.

Oh, and one last piece of advice: in every future Eighth Amendment case, the defendant should preserve the issue of whether any applicable overrule Warren and Burger Court precedents. I can't imagine a case like Robinson has any reliance interests value, and it was egregiously wrong the moment it was decided.

Update: Mike Rappaport and John McGinnis make a similar point about Grants Pass:

Only after outlining the original meaning of the clause did Gorsuch address Robinson. He noted that the issue in Grants Pass was behavior, not status, because the statute penalized an action: camping. Moreover, unlike the statute in Robinson, the Grants Pass enactment was a general law, applying not only to the homeless but to anyone who camped. The Court thus refused to extend the Robinson precedent to this case on originalist grounds.

Grants Pass thus provides an excellent example of what the Supreme Court can do when confronted with precedent inconsistent with original meaning. It can first set forth the original meaning. And then it can refuse to extend or cut back the precedent toward the original meaning if it can do so with a tractable and principled distinction.

City of Grants Pass v. Johnson was decided on June 28, along with several other more high-profile cases, including Fischer and Loper Bright. Had this case been decided earlier in the term, I think it would have gotten more attention. This case put on display two diametrically opposite modes of judging: How narrowly to read precedent? Should non-originalist precedent be extended? How should policy considerations factor into constitutional law? What role should amicus briefs play? Should courts review legislative records to determine improper motivation or "animus"? And so on. I'll address these issues in another post.

Here, I'd like to write about the legal issue in the abstract. Specifically, should the government be able to prohibit homelessness? The title of this post is a play on the classic law school hypothetical: No Vehicles In the Park? Generations of law students have been asked to interpret a sign with this message. Does it prohibit cars? Bicycles? Baby carriages? Baby-carriers? Wheel chairs? Crutches? Horses? Wheel-barrows? Hovercrafts? Piggyback rides? Potato sack race? And so on. It is a fun classroom exercise, which is quite relevant to Grants Pass.

Grants Pass divides about how to understand the local law. The majority, per Justice Gorsuch, reads the law to prohibit "camping" in public places, including parks. The dissent, per Justice Sotomayor, reads the law to prohibit the mere existence of being homeless, such as by sleeping with a blanket in public places.

The same act can be characterized in two very different ways. Why does it matter? Because the government is well within its powers to prohibit actions. For example, the government can prohibit the use of narcotics. But can the government prohibit the status of being a drug addict? In Robinson v. California (1961), the Supreme Court held that California could not enforce its law making "the 'status' of narcotic addiction a criminal offense." For now, let's put aside whether Robinson was a correct application of the Eight Amendment (it was not) and whether this precedent should be extended to the context of homelessness (it should not).

The law often has difficulties distinguishing between status and conduct. Long before Obergefell, there was a vigorous debate about laws concerning gays and lesbians. For example, did the sodomy law at issue in Lawrence v. Texas (2003) prohibit the act of gay sex, or did it criminalize the status of being gay--that is, an act that is intrinsic to being homeless. Justice Scalia's dissent offered this rejoinder to Justice O'Connor's concurrence:

JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." Ante, at 5.

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

Seven years later, the Court decided Christian Legal Society v. Martinez (2010). Would a policy excluding gay students from a student organization on campus discriminate on the basis of engaging in activity viewed as sinful (gay sex) or on the basis of simply being gay.

In Christian Legal Society v. Martinez, Justice Ginsburg rejected this distinction:

CLS contends that it does not exclude individuals because of sexual orientation, but rather "on the basis of a conjunction of conduct and the belief that the conduct is not wrong." Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) ("When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." (emphasis added)); id., at 583 (O'Connor, J., concurring in judgment) ("While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class."); cf. Bray v. Alexandria Women's Health Clinic, 506 U. S. 263, 270 (1993) ("A tax on wearing yarmulkes is a tax on Jews."). See also Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae 7–20.

But in Lawrence and related cases, the Court's conservatives advance that this distinction is valid. Under the law, is it possible to hate the sin but love the sinner?

In Grant's Pass, the Court's right and left continue to divide along similar lines. The Grants Pass majority views the law as a regulation of conduct by homeless people. And the Grants Pass dissent views the law as a regulation of the status of being homeless--that is, an act that is intrinsic to being gay.

To state it more simply, does the law prohibit the use of a vehicle in the park? Or does the law prohibit the existence of a vehicle in the park?

In May 2017, President Trump fired FBI Director James Comey. That decision triggered Acting Attorney General Rod Rosenstein's appointment of Robert Mueller as Special Counsel. That investigation would span the bulk of Trump's term. Although Trump was ultimately not indicted, Mueller released a 400-page report that identified a series of what could have been indictable offenses, but for DOJ policy which prohibited the indictment of a sitting President.

Many of the constitutional issues that Mueller grappled with were unsettled when his report was written.Nixon v. Fitzgerald spoke to civil presidential immunity, but the Supreme Court had never addressed presidential criminal immunity. Seven years later,  Chief Justice Roberts's majority decision in Trump v. United States has undermined key aspects of Mueller's framework. Indeed, with the benefit of hindsight, I do not even think Rosenstein's decision to appoint Mueller in the first place would have been proper. Firing Comey was a "core" exercise of Article II powers that could not be criminalized by a generally-applicable obstruction statute.  I alluded to this point in my post about why the Chief Justice wrote such a sweeping opinion. Here, I will compare and contrast Mueller on Trump, and Roberts on Trump.

First, Chief Justice Roberts explains that the President's exercise of the removal power is a "core" power, which Congress cannot criminalize.

Some of the President's other constitutional powers also fit that description. "The President's power to remove—and thus supervise—those who wield executive power on his behalf," for instance, "follows from the text of Article II." Seila Law LLC v. Consumer Financial Protection Bureau (2020). We have thus held that Congress lacks authority to control the President's "unrestricted power of removal" with respect to "executive officers of the United States whom he has appointed." Myers v. United States (1926); see Youngstown (Jackson, J., concurring) (citing the President's "exclusive power of removal in executive agencies" as an example of "conclusive and preclusive" constitutional authority); cf. Seila Law (noting only "two exceptions to the President's unrestricted removal power").

And that robust removal power is at its apex with regard to prosecutorial decisions:

Investigative and prosecutorial decisionmaking is "the special province of the Executive Branch," Heckler v. Chaney (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump's threatened removal of the Acting Attorney General likewise implicates "conclusive and preclusive" Presidential authority. As we have explained, the President's power to remove "executive officers of the United States whom he has appointed" may not be regulated by Congress or reviewed by the courts. Myers. The President's "management of the Executive Branch" requires him to have "unrestricted power to remove the most important of his subordinates"—such as the Attorney General—"in their most important duties." Fitzgerald.

This passage would seem to negate any potential criminal liability for Trump's firing of James Comey, and his threats to fire Acting Attorney General Rod Rosenstein as a means to thwart the Mueller investigation. Full stop. If Chief Justice Roberts is correct, Mueller should have never been appointed in the first instance. Moreover, Mueller would have no claim that the threatened-firing of Rosenstein is a form of "obstruction." I think Fischer provides more support for that conclusion.

Second, the Court finds that the President's seeking of advice and counsel from his principal officers are also part of his "core" powers:

Certain allegations—such as those involving Trump's discussions with the Acting Attorney General—are readily categorized in light of the nature of the President's official relationship to the office held by that individual. . . .

The indictment's allegations that the requested investigations were "sham[s]" or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

Robert Mueller spent countless hours interviewing the President's advisors, including people at the Department of Justice and the White House Counsel's Office. Those interrogations severely compromised the President's ability to seek advice from his administration. The lawyers all feared that they might be indicted!

And to what end? Mueller was trying to probe what Trump told them, what Trump asked them, and what Trump's intentions were. But this passage by the Court suggests that these conversations could not form the basis of criminal liability. Merely seeking advice from advisors, including principal officers, is "absolutely immune." Indeed, the Opinions Clause gives the President the power to request opinions from his "Principal Officers." (This provision made an appearance in Trump v. New York.) Mueller should have never interrogated the President's advisors, and attempted to impose criminal liability on the basis of the President's requests for advice.

Third, the Court embraces a clear-statement rule with regard to the presidency. Specifically, the Court attributes the clear-statement rule to the Department of Justice, and then agrees with that attribution.

Read More