Under Jack Smith’s theory, Lincoln, Truman, Clinton and Biden could all have ended up in the dock.

By David B. Rivkin, Jr., and Elizabeth Price Foley

April 24, 2024, in the Wall Street Journal

The Supreme Court hears oral arguments Thursday in Trump v. U.S., in which Donald Trump argues that the Constitution precludes his prosecution for his role in the Jan. 6, 2021, riot. Mr. Trump’s detractors insist that recognizing presidential immunity would put him above the law. They’re wrong. Immunity for official actions is a necessary part of the constitutional structure, and criminal prosecution isn’t the only way to hold a president accountable for unlawful official acts.

Because no previous president ever faced criminal charges, the question before the justices is novel. But the high court has addressed the unique constitutionally driven relationship between the presidency and the courts. In Kendall v. U.S. ex rel. Stokes (1838), it declared: “The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.”

Franklin v. Massachusetts (1992) dealt with the question of when statutes enacted by Congress apply to the president. The ruling noted that “the President is not explicitly excluded” from the Administrative Procedure Act, “but he is not explicitly included, either.” Under such circumstances, “out of respect for the separation of powers and the unique constitutional position of the President . . . textual silence is not enough to subject the President to the provisions.”

More fundamentally, in Nixon v. Fitzgerald (1982), the court held that separation of powers demands absolute immunity from civil lawsuits for acts falling within the “outer perimeter” of the president’s official responsibilities. Absolute immunity is necessary because the president “occupies a unique position in the constitutional scheme,” and the specter of litigation “could distract a President from his public duties.” That applies with even greater force to the threat of criminal prosecution.

Special counsel Jack Smith argues that “no President need be chilled in fulfilling his responsibilities” because there are “strong institutional checks to ensure evenhanded and impartial enforcement of the law,” including grand jury indictment, due process and the government’s burden of proving guilt beyond a reasonable doubt. But even if the prospect of conviction is remote, the threat of prosecution impairs the presidency.

Further, the most important institutional check, the norm against politicized prosecutions, has so broken down that not only Mr. Smith but district attorneys in New York and Atlanta have rushed to bring Mr. Trump to court. Imagine how other presidents might have fared if they had to worry about prosecution for official acts:

• Abraham Lincoln suspended habeas corpus without congressional authorization. In Ex Parte Merryman (1861), Chief Justice Roger Taney, acting as a circuit judge, held that the power to suspend habeas lies solely with Congress. Lincoln ignored Taney’s ruling and continued his suspension of habeas until the end of the Civil War. No one suggested that Lincoln be prosecuted for false imprisonment, false arrest or kidnapping.

• Harry S. Truman seized domestic steel plants during the Korean War, violating statutes that authorized the president to seize private property only in narrow circumstances. The Supreme Court declared his actions unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer (1952). But no federal prosecutors suggested they could prosecute him for “conspiracy against rights,” or “conspiracy to commit an offense against the United States,” the charges Mr. Smith has brought against Mr. Trump.

• Bill Clinton, George W. Bush, Barack Obama and Joe Biden all unilaterally ordered military actions as commander in chief. Critics accused them of usurping Congress’s power to declare war, but nobody seriously suggested that they be prosecuted for murder, torture, war crimes or misappropriation of government resources.

The president isn’t the only official to enjoy immunity for official acts. In Yaselli v. Goff (1927), the Supreme Court affirmed a lower court’s conclusion that federal prosecutors have absolute immunity from civil liability because the “public interest requires that persons occupying such important positions . . . should speak and act freely and fearlessly in the discharge of their important official functions.” In Kalina v. Fletcher (1997), the justices held that even under Section 1983—a civil-rights law authorizing lawsuits against state officials who violate federal constitutional rights—prosecutors enjoy absolute immunity for acts undertaken in their “role as an advocate.” This is because that role is unique to prosecutors, and the public’s interest “in protecting the proper functioning of the office, rather than the interest in protecting its occupant, . . . is of primary importance.”

The court reached the same conclusion about judges in Pierson v. Ray (1967), which held that Section 1983 didn’t abrogate judges’ absolute immunity for “acts committed within their judicial jurisdiction,” because such immunity is “for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

In Gravel v. U.S. (1972), the justices held that the Speech and Debate Clause extends absolute immunity to members of Congress and their aides for official actions. This is to protect a member of “a co-equal branch of the government” from “executive and judicial oversight that realistically threatens to control his conduct as a legislator.”

Like prosecutors, judges and congressmen, a president threatened with prosecutions for official acts couldn’t exercise his duties with full vigor. Unlike those other officials, the president is the singular head of a branch of government, making his ability to exercise his powers all the more essential.

That leaves the question of whether the actions for which Mr. Trump was charged were official or, as Mr. Smith asserts, private. In McDonnell v. U.S. (2016) the court held that an “official act” is an action on any matter that is “pending . . . before a public official,” and includes the president’s “using his official position to exert pressure on another official, knowing or intending that such advice will form the basis for an ‘official act’ of another official.”

Mr. Trump acknowledges that “no court has yet addressed the application of immunity to the alleged facts of the case.” The justices should draw a line and extend absolute criminal immunity to actions within the outer perimeter of the president’s duties. Then it would be for the lower courts to decide on which side of the line these actions fall.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/whats-at-stake-in-the-trump-immunity-case-president-supreme-court-1f00dc9c

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 25, 2019, in the Wall Street Journal

Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.

The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.

The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.

Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.

Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president. Read more »

By David B. Rivkin Jr. and Elizabeth Price Foley

Feb. 14, 2019, in the Wall Street Journal

As William Barr begins his term as attorney general, House Democrats are aiming a “subpoena cannon” at President Trump, hoping to disable his presidency with investigations and possibly gather evidence to impeach him. Mr. Trump fired back in his State of the Union address: “If there is going to be peace and legislation, there cannot be war and investigation.” To protect the presidency and separation of powers, Mr. Barr should be prepared to seek a stay of all congressional investigations of Mr. Trump’s prepresidential conduct.

The president is not one among many, as are legislators and judges. Crippling his ability to function upsets the constitutional balance of power. For this reason, the Justice Department’s Office of Legal Counsel has repeatedly concluded that a sitting president may not be indicted or prosecuted. The same logic should apply to congressional investigations.

Congress is targeting Mr. Trump’s actions before becoming president because there are well-established constitutional limits, grounded in separation-of-powers doctrine, on its ability to investigate his official conduct. In U.S. v. Nixon (1974), the Supreme Court recognized a constitutionally based, although not unlimited, privilege of confidentiality to ensure “effective discharge of a President’s powers.” In Nixon v. Fitzgerald (1982), the justices held that presidents and ex-presidents have absolute immunity against civil liability for official presidential acts.

Executive immunity for prepresidential activity is less clear. In Clinton v. Jones (1997), which arose out of Paula Jones’s accusation that Bill Clinton sexually harassed her while he was governor of Arkansas, the justices reasoned that Ms. Jones’s lawsuit could proceed because the burden on the presidency objectively appeared light. Specifically, because only three sitting presidents had been sued for prepresidential acts, the justices thought it “unlikely that a deluge of such litigation will ever engulf the presidency.” Read more »