The Volokh Conspiracy

What do James Comey, Robert Mueller, and Robert Hur have in common? They each refused to seek criminal charges against a prominent politician, but in doing so, revealed damaging information about that politician. FBI Director Comey's remarks about Hillary Clinton's email server may have cost her the 2016 election. Special Counsel Robert Mueller's report led to an impeachment inquiry for President Trump. And Special Counsel Robert Hur's report about President Biden's mental state very well may undermine his election chances.

Again, Clinton, Trump, and Biden were not prosecuted. Yet in each case, federal law enforcement officials explained to the public why no charges would be brought. As much as I favor transparency, I think publicizing the decision not to indict is a mistake. Nothing good comes from releasing a declination report for a person who will not be charged. Prosecutors speak through indictments: either bill, or no bill. Anything short of an indictment should not be disclosed to the public.

Which brings me to the title of this post. The current special regulations provided that the  special counsel, at the "conclusion" of his work, "shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel." 28 CFR § 600.8(c). This requirement is salutary. The Attorney General should know why the special counsel is, or is not seeking an indictment.

The regulations, however, do more than require the special counsel to give a confidential report to the Attorney General. The regulations create an expectation that the Attorney General will publicize the report:

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. 28 CFR § 600.9(c).

This provision is a mistake. If the special counsel recommends an indictment, and the official is indicted, let the indictment speak for itself. If the special counsel declines to recommend an indictment, simply decline to indict, and let everyone move on with their lives. Again, there is no actual mandate to release the report. But this provision creates an expectation that it will be released.

I can see several benefits if this provision is rescinded. First, the special counsel would not feel like he is writing for the history books. A short memo that explains his declination decision would suffice. Such a brief report could also expedite the declination decision--which is in everyone's interest. Second, the Attorney General will no longer be forced to consider whether to invoke executive privilege and redact portions of the report. Indeed, since nothing would be redacted, the special counsel could be even more forthright in his recommendations.  Remember, there was lengthy litigation over redactions made by Attorney General Barr. And perhaps Attorney General Garland should have whipped out his redaction marker for the Hur report. Third, if the report is never released, the Attorney General would not be put in the tough spot of trying to summarize a report he disagrees with. Remember how much flak Barr got for his summary of the Mueller report. Nothing good comes from making this report public.

I remain persuaded by Justice Scalia's dissent in Morrison v. Olson as a policy matter: it is impossible to separate criminal prosecution from political accountability. So don't pretend otherwise. Indeed, Attorney General Merrick Garland is under scrutiny from the White House for not bringing charges against Trump sooner, but instead caving to political pressure, and appointing Jack Smith. Had Garland proceeded on his own, Trump could have already been brought to a verdict. But here we are, with the Supreme Court on deck.

Like the expired independent counsel statute, the special counsel regulations have failed (sorry Neal). I hope there is a bipartisan consensus on this issue now. If it were up to me, the entire suite of regulations should be rescinded in the next administration. And they should be rescinded before any new special counsels are appointed. I'm not sure who would even have standing to challenge such a rescision. (A current special counsel might have standing.) (I wrote about the repeal of the regulations in 2018.) At a minimum, rescinding 28 CFR § 600.9(c) should be a priority.

Tomorrow (Monday), Trump's other lawyers will have file an emergency stay with the Supreme Court in the criminal immunity case. When I first read the D.C. Circuit's opinion, my initial inclination was that the Supreme Court would simply deny a stay, and let the lower court proceedings continue. Given that posture, a trial could be held in the next few months, likely with a verdict before the election.

However, after cogitating on the Section 3 case a bit more, I have some new thoughts. During oral argument in Trump v. Anderson, the Chief Justice did not seem interested in cleanly resolving the insurrection issue. Counsel for both sides urged the Court to definitively resolve the case. Jason Murray stated the issue plainly:

If this Court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think this case would be done, but I think it could come back with a vengeance because ultimately members of Congress may have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act. So President Trump himself urges this Court in the first few pages of his brief to resolve the issues on the merits, and we think that the Court should do so as well.

Indeed, Baude and Paulsen have pivoted, and suggest that Congress may indeed be a "backstop" on January 6, 2025. Was the Court moved by these concerns about "vengeance"? Based on argument, probably not, though things can always change when the opinion has to write.

Still, if the Court does "punt," it would be based on a common calculus in Roberts Courts decision: if we don't have to decide this issue now, we may never have to decide the case. If Biden wins the election, who cares if Trump is an insurrectionist? If Trump wins the election with a majority in one or both houses, the joint session of Congress cannot disqualify him on January 6, 2025. And if Trump is inaugurated, the Court can defer to Congress's decision to certify Trump's election as evidence that he is not disqualified. Maybe Section 3 becomes a political question. Or maybe the Chief will save Trump by holding that the President is actually a tax. Another Roberts blue plate special! Details can be filled in later. The "vengeance" risk only arises if Trump wins the election, and there are sufficient Democratic majorities in both houses willing to disqualify him. (Jamie Raskin is not the median voter.) I'm sure the Chief has run through all of these possibilities.

Now, let's consider the possibilities with the criminal immunity case. If the Court takes no action, and denies review, a criminal trial will be held before the election, followed by an emergency appeal to the Supreme Court in September or October, with a decision on the eve of the election. By that point, a substantial number of ballots will already have been counted due to early voting. Who wants to deal with an emergency appeal so close to the election? If the Court grants a stay now, and adds the case to the rocket docket with argument in May, it will have to rush through a complicated decision on executive immunity after all of the delegates have been awarded. Trump's nomination would be a lock at that point. (FWIW,  May oral arguments are very rare, but Brett Kavanaugh argued a case in June.)

There is another option. As I understand the posture, the lower courts rejected a claim for absolute immunity. There was no finding on whether as applied in particular contexts Trump may have had immunity. What if the Supreme Court remands for further fact finding to determine if, in the particular instances of January 6, Trump may have some sort of as applied immunity. I don't know if this remand is even possible, or if the rules even permit it, but it sounds like the sort of blue plate special the Chief could whip up.

What happens with this possibility? First, the Court would say nothing about presidential immunity now--whether absolute or as applied. Second, the Court would not let a three-judge panel, absent en banc review, have the final say on this complex issue. Third, it would force the trial court to spend several months going through elaborate procedures, and developing a record that may be useful for future appellate review. Fourth, and most importantly, this approach would kick the issue to the election. If Trump wins the election, his first act will be to order the AG to dismiss the prosecution, and he may even pardon himself. If Trump loses the election, the case can go to trial in 2025, and the Supreme Court can eventually hear the issue on direct appeal. Again, if Trump loses, the stakes will be much lower, since Trump is no longer a viable political candidate. The Court can resolve the case on its own terms, with much less pressure.

So to summarize, if the Court takes the path hinted at in Trump v. Anderson, with a remand now, the Justices may never have to decide the issue of criminal immunity, or alternatively, would have to decide the issue about citizen Trump, not candidate Trump.

Of course, I do not favor these sorts of dilatory tactics. I would much rather the Supreme Court cleanly resolve the Section 3 issue. (And I hope that the Chief Justice and Justice Kagan won't object to Justice Jackson writing about "officer stuff" with Justice Gorsuch; a short concurrence would take the wind out of the sails of a 1/6/25 disqualification effort.) And I would much rather the Supreme Court settle the bounds of presidential criminal immunity rather than a three-judge panel of the D.C. Circuit that truncated any possible en banc review. But I seldom get what I want.

We'll see what happens.

During oral argument in Trump v. Anderson, counsel for the voters was forced to abandon the claim that the Speaker and the Senate President Pro Tempore were "officers of the United States" whose appointments were not provided for in Article II, Section 2. Patrick Murray referred to those presiding officers as "an exception to the general rule." In doing so, Murray surrendered two of the four positions that Justice Scalia listed in his letter to Tillman.

What about the other two positions in the Scalia letter: are the President and Vice President "officers of the United States" whose appointments are not provided for in Article II, Section 2?  Through the Sinecure Clause, Tillman and I have demonstrated that the answer to this question is no. In our view, the phrase "not herein otherwise provided for" is a null set. There are no such offices. The Constitution is telling us that there are not "Officers of the United States" who are provided for elsewhere. All of the "Officers of the United States" are provided for in Article II, Section 2.

During the Originalism Works-in-Progress Conference, I was asked why the Framers would include this phrase if it referred to zero positions. One possible answer can be found in the drafting history of the Appointments Clause. At earlier junctures during the convention, the legislature had the power to appoint different positions, including judges, ambassadors, and the treasurer. These appointments were not provided for in (what became) the Appointments Clause. But over time, the Convention removed the legislature's power to appoint these positions. The power to appoint those positions was given to the President. As a result, the phrase "not herein otherwise provided for" indicated that "Officers of the United States" were only appointed pursuant to the procedures spelled out in Article II, Section II. And to reinforce this point, the phrase, "and which shall be established by law" was added to the Appointments Clause, making clear that the "Officers of the United States" had to be created by statute, and not by the Constitution. There is nothing I've seen in the drafting history to suggest that the phrase "not herein otherwise provided for" refers to (as Scalia suggested), the President, the Vice President, the Speaker, and the Senate President Pro Tempore.

Tillman and I discuss this history in depth in Part III of our series (pp. 387-390):

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A few weeks ago, Sam Bray wrote a post about Section 3 and "Officers of the United States." That post was cited in several amicus briefs, and an attendee at the San Diego conference asked me about it today. Here, I will provide a reply.

The Impeachment Clause provides, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment …." The Colorado District Court held that the Impeachment Clause "separates" the President and Vice President "from the category" of "all civil Officers of the United States." While the Appointments Clause refers to "all other Officers of the United States," the Impeachment Clause refers only to "all civil Officers of the United States."

Sam disagreed with this position, and offered an explanation for why the President and Vice President are separated out from "all civil Officers of the United States."

And in the Impeachment Clause it is not even the case that the phrase excludes the President, since it merely has an overlap with a very good reason for the additional specification. It is so important to make clear that the President and Vice President may be impeached—no small point against the background of royal prerogative power in England—that they are spelled out specifically. That does not mean they are not officers, and the brief's suggestion that "all other civil officers" would have to be used does not fit the legal drafting culture of the late eighteenth and nineteenth centuries.

One way to understand the "legal drafting culture" 1787 is to review the drafting history of the Impeachment Clause during the Constitutional Convention. Tillman reviewed that history in Part III of our series (p. 364):

As late as September 8, 1787, the Impeachment Clause only extended to the President. That day, a motion was made to add "[t]he [V]ice-President and other Civil officers of the U. S." to the scope of the clause. 2 Farrand's Records 552 (emphasis added). The motion was passed unanimously. Id. at 545, 552. The use of the word "other" suggests that the President and Vice President are properly characterized as "Civil officers of the United States."

Here again, Morris and the Committee of Style changed the text. The amended text stated: "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment . . . ." Id. at 600. The phrase "and other Civil officers of the U.S." was changed to "and all civil officers of the United States." The word other was not merely dropped; it was changed to all.

We have no good reason to believe that the Committee dropped the word "other" by accident or happenstance. On the contrary, omitting the word "other" provides some evidence that the meaning was altered. Arguably, Morris and his committee recognized that the President and Vice President were excluded from the category of "Civil officers of the U.S." Why else remove the word "other"?

Earlier in the convention, only the President was subject to impeachment. Later in the convention, the Vice President and "other Civil Officers of the United States" were made subject to impeachment. Finally, the Committee of Style dropped the word "other."

Justice Story, in discussing the Blount trial, observed that the absence of the word other in the Impeachment Clause "lead[s] to the conclusion" that the President is not "included in the description of civil officers of the United States." 2 Joseph Story, Commentaries on the Constitution of the United States § 791 (1833).

Story published his Commentaries on the Constitution in 1833. At the time, Madison's records of the federal convention had not yet been made public. These documents, which recorded the Constitution's drafting history, would be published in 1840, a few years after Madison's death. See 1 Farrand's Records at xv. Today, we know what Story did not know in 1833. According to Madison's records and other records from the Convention, Story's inference is well supported by the Constitution's drafting history.

I have not seen any evidence that the drafting of the Impeachment Clause was premised on some concern about the royal prerogative. The Blackman-Tillman position is consistent with the "legal drafting culture" at the Constitutional Convention, at which surgical changes were made to the office- and officer- language in the Impeachment Clause, the Religious Test Clause, and the Succession Clause. (See pp. 360-365 of Part III.) 

On Thursday, the Supreme Court heard oral argument in Trump v. Anderson. As much fun as the arguments were, there was very little actual discussion of Section 3. There were only a handful of questions about insurrection, and only two of the Justices seemed interested in the office- and officer-issue. The real Section 3 oral argument, as far as I'm concerned, occurred in San Diego today at the Fifteenth Annual Originalism Works-in-Progress Conference. (This what Will meant at the FedSoc convention when he said "See you in San Diego.")

This gathering is one of my favorite every year. The Center for the Study of Constitutional Originalism at the University of San Diego selects several papers that focus on all aspects of originalism. The authors provide a short discussion of their paper (about 10 minutes), a commentator provides some comments (about 7 minutes), followed by about an hour of questions and answers. Unlike many (most?) conferences, there is a norm of attendees reading all of the papers. And the questions are extremely probing.

This year, Professors Mike Rappaport and Mike Ramsey, put on a double feature about Section 3. Now, when the panel was schedule, we didn't anticipate it would be 48 hours after the Supreme Court heard oral argument. But the timing worked out quite well. Will Baude and Mike Paulsen present The Sweep and Force of Section 3, and I presented Sweeping and Forcing the President into Section 3. (Seth could not make the trip.) The format was Paulsen for ten minutes, Blackman for ten minutes, Baude for seven minutes, Blackman for seven minutes, followed by about 90 minutes of Q&A. It was fairly intense. The levels of sophistication of the questions, and answers at this session, dwarfed what we saw at One First Street on Thursday. The recording will be released sometime soon, though probably not before the Supreme Court decides Trump v. Anderson. In the interim, You can download my slides here.

I may blog about several of the questions I received. But here, I'd like to thank Will and Mike for being generous sparring partners. Even where we disagree, we can do so respectfully. If Seth and I are "some scholars," then Will, Mike, and I are just "some more scholars."

The U.S. Supreme Court has said that "A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." United States v. Armstrong, 517 U.S. 456 (1996). The defendant must prove that "the *** prosecution policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" Tyler v. Boles, 368 U.S. 448 (1962).

Among the discriminatory purposes, which are barred by the selective prosecution doctrine are discrimination involving the Equal Protection Clause and on the basis of race, religion, sex, gender, or political alignment. I think Donald Trump is absolutely right on the merits in the four criminal cases which have been brought against him and in the New York State civil fraud case. But, I also think that all five of these legal actions against Trump are nothing less than a political witch hunt that is motivated by political ambition in the two cases brought respectively by New York State Attorney General Letitia James and by District Attorney Alvin Bragg. Trump's First Amendment rights are being stripped away by discriminatory legal actions brought against him because of his political views in flagrant violation of the First Amendment and the Equal Protection Clause.

The New York civil case in which Trump is at risk of being fined $370 million for fraud and being barred from ever doing business in New York State again is a victimless crime. No bank or lender complained that Trump had defrauded them, and the Democratic State Attorney General's accusations that Trump inflated the value of his assets to get favorable loans is standard practice in the New York real estate market. The banks that loaned Trump the money he borrowed discounted the value of Trump's assets from what he claimed, just as they do with every other real estate mogul in the New York real estate market. Letitia James brought this civil action because New York State Democrats suffer from Trump derangement syndrome, and James wants to win some future New York Democratic primary. In doing so, James is violating Trump's First Amendment rights and his rights under the Equal Protection clause. James should have to show that some other New York businessman has been prosecuted for hundreds of millions of dollars and threatened with a ban on doing business in New York for conduct like Trump's. She cannot do that because the politically charged Trump lawsuit she has brought against Trump is one of a kind.

Alvin Bragg's indictment of Trump for paying hush money to Stormy Daniels and not reporting it as a campaign expenditure is also a case of selective prosecution. John Edwards, the Vice Presidential running mate along with John Kerry in 2004, had used more than $1 million in campaign money to hide his very own illegitimate affair. Edwards case led to the U.S. Justice Department adopting guideline against bringing charges about the use of campaign funds to cover up sexual affairs. If John Edwards gets off, then Donald Trump should too. This is another case of selective prosecution based on Trump's political views to go after him so Alvin Bragg can win a Democratic primary in New York for some higher elective office.

The criminal federal classified document case brought in Florida by Jack Smith is yet another travesty of unequal justice based on party affiliation in violation of the First Amendment and the Equal Protection Clause. For years, Barack Obama knew that Hillary Clinton, as Secretary of State, had an insecure personal computer at her home, which she was illegally using to store and exchange highly classified top secret information. Neither Obama nor his Attorney General Loretta Lynch chose to prosecute Clinton for these violations of the criminal law. Most recently, President Joe Biden was excused from prosecution for violations of the law concerning classified documents stored in one's house. Donald Trump, however, does get prosecuted for mishandling classified documents. This is a blatant double standard for Republicans and Democrats on the handling of classified information. Again, Trump is being selectively prosecuted in violation of the First Amendment and the Equal Protection Clause.

The January 6th, 2021 indictments of Donald Trump are also blatantly unfair. To begin with, Jack Smith is an unconstitutionally appointed Special Counsel for reasons I point out in my law review article with Gary Lawson: Why Robert Mueller's Appointment Was Unlawful? 95 Notre Dame University Law Review 87 (2019). All Trump did on January 6, 2021 was to give his followers a fiery speech and urge them to "fight like hell." Trump never urged his followers to disrupt the counting of the Electoral votes from each state. Trump had a First Amendment right to give the speech he gave at the Ellipse, and he is again the victim of a selective prosecution in violation of the Equal Protection Clause.

As for the Georgia case, Fani Willis is angling to win a future Democratic primary by going after Donald Trump over a phone call in which Trump exercised his First Amendment rights to ask if more Trump votes could be found in Georgia. This is again selective prosecution of Trump by a Democratic prosecutor in violation of the Equal Protection Clause.

In my 34 years as a law professor, I have repeatedly seen the rules in legal academia bent dramatically to favor liberals over conservatives. I thus identify with what Trump is going through in terms of selective prosecution. Trump's First Amendment and Equal Protection Clause rights are being flagrantly violated, and the U.S. Supreme Court should put an end to this charade now.

[This is the four installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about
Officers of the United States." The second installment focused on Justice Jackson's colloquies about "Office under the United States." The third installment focused on Justice Kavanuagh's colloquies about Griffin's Case and Justice Barrett's questions about federal courts. This fourth installment focuses on questions from Justices Kagan and Sotomayor about the proper line between federal oversight and state regulations.]

There was a tension in yesterday's oral argument in Trump v. Anderson. On the one hand, there was a consensus from the bench that states have the power to impose qualifications on their own state officials. On the other hand, there was a consensus from the bench that a fifty-state solution for electing the presidency, as Akhil Amar described it, would be a terrible idea. Justices Sotomayor and Kagan, in particular, recognized this line between federalism and national power. There is a way to reconcile these doctrines. And, perhaps to no one's surprise, Jonathan Mitchell resisted any effort to reconcile these doctrines. He was wedded to his concept of complete preemption. Tillman and I anticipated this issue, and offered just such a reconciliation in our article. 

What is national?

Perhaps the most pointed moment of the oral argument came from Justice Kagan. She articulated in a very succinct fashion why it would be a terrible idea if each state could decide who can become President. 

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[This is the third installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about
Officers of the United States." The second installment focused on Justice Jackson's colloquies about "Office under the United States." This third installment focuses on Justice Kavanuagh's colloquies about Griffin's Case and Justice Barrett's questions about federal courts.]

Most people assume that the leading argument Seth and I have advanced is "Officers of the United." Not so. In our law review article and in each amicus brief, we have led off with Griffin's Case. Indeed, we raised Chief Justice Chase's decision in a 2022 New York Times guest essay about Madison Cawthorn. We've always thought this precedent was an extremely important element of the Section 3 litigation. In the lower courts, Trump's counsel vigorously advanced Chief Justice Chase's decision. But before the Supreme Court, that advocacy vanished. Trump's opening brief barely mentions Griffin's Case in passing, and the reply brief does only a little more. Meanwhile, Trump's lawyers spent several pages on Moore v. Harper, which got a grand total of zero questions, as Griffin's Case which took more than half of the argument. 

If I had to peg it before the case, I would have predicted that Chief Justice Roberts would most be drawn to Chase's decision. As it turned out the leading proponent of Griffin's Case was Justice Kavanaugh. Roberts was oddly muted on most issues.

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[This is the second installment in a series about the oral argument in Trump v. Anderson. The first installment focused on Justice Gorsuch's colloquies about "Officers of the United States." This installment will focus on Justice Jackson's colloquies about "Office under the United States."]

In the lower courts, Trump argued that the President was not an "Officer of the United States" and that the Presidency was not an "Office under the United States." Seth Barrett Tillman and I are the primary proponents of the former argument, and Kurt Lash is the primary proponent of the latter argument. Either argument would decisively win the case for Trump. Yet, before the Supreme Court, the Petitioner's opening brief barely mentioned "Office under the United States." At most, Petitioner said the phrase was "ambiguous" in Section 3. The issue was probably preserved, but it was clear that Petitioner did not forcefully argue the position. Going into Court, it seems that Jonathan Mitchell, counsel for Petitioner, was not willing to fully embrace the "Office under the United States" argument. Why? He was worried about an Emoluments boomerang. This may have been a deliberate strategy at the outset, but it is one that should have been abandoned.

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[This post will be the first installment in a series about oral argument in Trump v. Anderson.]

I'll put my cards on the table: I was very critical of Justice Gorsuch's decision in Bostock. To be clear, I did not disagree with his textualist methodology. Rather, I disagreed with how he applied it. Specifically, I faulted Bostock for starting with modern precedents that were not themselves textualist. But when Justice Gorsuch starts at the very beginning, from first principles, he is at his best. And I have always commended Justice Gorsuch's willingness to follow text, even if it leads to counterintuitive results. For that reason, the Tillman amicus brief cited Bostock in several places to respond to any arguments based on the absurdity doctrine:

The Framers were not omniscient. They had no reason to think about a person who: (1) was elected as President; (2) but had never before taken any other constitutional oath; (3) then is alleged to have engaged in insurrection; and (4) then sought re-election. "Should we consider the expectations of those who had no reason to give a particular application any thought …?" See Bostock, 140 S.Ct. at 1751. No. Rather, "the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a [text] give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law." See id. at 1737. In 1868, under the written word of the Constitution, the President was not an "Officer of the United States."

We had hoped that those who joined the Bostock decision would extend this approach to the Section 3 context. During oral argument in Trump v. Anderson, Justice Gorsuch demonstrated, again, that he is the Court's most careful, consistent textualist.

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