America Depends on Presidential Immunity

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

July 1, 2024, in the Wall Street Journal

The Supreme Court on Monday rendered the most important defense of separation of powers in its history. Trump v. U.S. concluded that the Constitution requires immunity from criminal prosecution for official presidential acts. The decision isn’t about Donald Trump so much as it is about protecting the presidency itself; future occupants of that office, including President Biden; and the ability of the government to function.

In Federalist No. 70, Alexander Hamilton explained that the executive branch is embodied in a single person, the president, to avoid the “habitual feebleness and dilatoriness” inherent in multimember bodies like Congress. A unitary president ensures vigor in the exercise of executive power for the benefit of the nation. “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

The Trump opinion acknowledged these truths and built on Nixon v. Fitzgerald (1982), which recognized presidential immunity from civil lawsuits predicated on official acts. In that case, Justice Lewis Powell wrote that such immunity is mandated by the president’s “unique position” and “rooted in the constitutional tradition of the separation of powers.” Lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

As Chief Justice John Roberts noted in Trump, that’s even more true of criminal charges. Given “the peculiar public opprobrium that attaches to criminal proceedings,” they “are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Without immunity, “a President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” Immunity is therefore crucial to protect the independence of the executive branch. But the immunity the court recognized isn’t without limit.

The president enjoys absolute immunity for acts undertaken within his exclusive power, as granted by the Constitution. “Once it is determined that the President acted within the scope of his exclusive authority,” the court declared, “his discretion in exercising such authority cannot be subject to further judicial examination.” One of the allegations against Mr. Trump is that he attempted to convince the Justice Department to investigate election fraud. Because the president has ultimate authority over the Justice Department, the high court held that Mr. Trump is absolutely immune from charges relating to his interactions with it.

For acts “within the outer perimeter” of the president’s official responsibility, the justices held, there is “at least a presumptive immunity.” The president has a broad array of “discretionary responsibilities” that aren’t exclusively his. “At a minimum,” the court held, “the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose ‘no dangers of intrusion on the authority and functions of the Executive Branch.’ ”

Applying that standard, the court concluded that allegations relating to Mr. Trump’s efforts to persuade Vice President Mike Pence to take certain actions during Congress’s certification of electors “involve official conduct,” but left it to the trial judge to determine whether prosecution “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” The court took the same approach to allegations regarding Mr. Trump’s interactions with state officials, private parties and the public. Whether these were “official acts” requires “close analysis” by the trial court, “with the benefit of briefing” by the parties, the justices said. All these questions will be litigated and could again come before the high court.

At the same time, the justices made clear that the president has no immunity from prosecution for private acts. That’s consistent with Clinton v. Jones (1997), which denied Bill Clinton’s claim of immunity in a lawsuit alleging sexual harassment during his time as Arkansas governor. Presidents aren’t “above the law”; they are immune from civil lawsuit or criminal prosecution only for actions undertaken pursuant to the highest law, the Constitution.

The court also wisely rejected special counsel Jack Smith’s argument that determining whether acts are official and therefore immune can wait until after the trial. Presidential immunity “must be addressed at the outset of a proceeding,” the court held, because the mere “possibility of an extended proceeding” may reduce the presidency’s vigor. The justices observed that “we do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.”

Without immunity and prompt pretrial determination thereof, former presidents could face years of court proceedings fighting novel charges predicated on public speeches; negotiations with state, foreign or congressional leaders; or executive orders lacking clear statutory authorization such as vaccine mandates, eviction moratoriums or actions opening the border. Clever prosecutors could conjure up indictments based on opaque criminal statutes such as conspiracy against rights, conspiracy to defraud the U.S., obstruction of justice, mail or wire fraud, racketeering, and false statements or misrepresentations.

The wisdom of the court’s decision is illustrated by charges Mr. Smith levied against Mr. Trump. The Court concluded that many of them were based on official acts and thus constitutionally inappropriate. Other charges were so poorly developed that they must be decided on remand, necessitating even more litigation.

Any prosecution of a president based on his official acts harms the presidency’s effectiveness. The court has sent a clear message to prosecutors like Mr. Smith: You’d better have a strong case, because presidents have immunity for official acts, and they are entitled to prompt judicial determination thereof. If the justices had decided otherwise, our nation would have descended into a destructive cycle of perpetual lawfare, weakening all presidents—including Mr. Biden—and further politicizing the justice system.

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.


Trump’s Trial Violated Due Process

He was denied notice of the charges, meaningful opportunity to respond, and proof of all elements.

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

June 4, 2024, in the Wall Street Journal

Whether you love, hate or merely tolerate Donald Trump, you should care about due process, which is fundamental to the rule of law. New York’s trial of Mr. Trump violated basic due-process principles.

“No principle of procedural due process is more clearly established than that notice of the specific charge,” the Supreme Court stated in Cole v. Arkansas (1948), “and a chance to be heard in a trial of the issues raised by that charge, if desired, [is] among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” In in re Winship (1970), the justices affirmed that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” These three due-process precepts—notice, meaningful opportunity to defend, and proof of all elements—were absent in Mr. Trump’s trial.

The state offense with which Mr. Trump was indicted, “falsifying business records,” requires proof of an “intent to defraud.” To elevate this misdemeanor to a felony, the statute requires proof of “intent to commit another crime.” In People v. Bloomfield (2006), the state’s highest court observed that “intent to commit another crime” is an indispensable element of the felony offense.

New York courts have concluded that the accused need not be convicted of the other crime since an “intent to commit” it is sufficient to satisfy the statute. But because that intent is, in the words of Winship, “a fact necessary to constitute the crime,” it is an element of felony falsification. Due process requires that the defendant receive timely notice of the other crime he allegedly intended to commit. It also requires that he have opportunity to defend against that accusation and that prosecutors prove beyond a reasonable doubt his intent to commit it.

Mr. Trump’s indictment didn’t specify the other crime he allegedly intended to commit. Prosecutors didn’t do so during the trial either. Only after the evidentiary phase of the trial did Judge Juan Merchan reveal that the other crime was Section 17-152 of New York’s election law, which makes it a misdemeanor to engage in a conspiracy “to promote or prevent the election of any person to a public office by unlawful means.”

To recap, the prosecution involved (1) a misdemeanor elevated to a felony based on an “intent to commit another crime,” (2) an indictment and trial that failed to specify, or present evidence establishing, another crime the defendant intended to commit, and (3) a jury instruction that the other crime was one that necessitated further proof of “unlawful means.” It’s a Russian-nesting-doll theory of criminality: The charged crime hinged on the intent to commit another, unspecified crime, which in turn hinged on the actual commission of yet another unspecified offense.

To make matters worse, Judge Merchan instructed the jury: “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”

Due process demands that felony verdicts be unanimous, but in Schad v. Arizona (1991), a murder case, the high court indicated that there need not be unanimity regarding the means by which a crime is committed. But a plurality opinion by Justice David Souter cautioned that if the available means of committing a crime are so capacious that the accused is not “in a position to understand with some specificity the legal basis of the charge against him,” due process will be violated. “Nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction,” Justice Souter wrote.

Justice Antonin Scalia concurred, observing that “one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” Four dissenting justices argued that the In re Winship precedent requires unanimity regarding all elements of a crime, including the means by which it’s committed.

All nine justices in Schad, then, believed unanimity is required to convict when the means by which a crime can be committed are so broad that the accused doesn’t receive fair notice of the basis of the charge. New York’s election law requires that the violation occur “by unlawful means,” so any “unlawful” act—including, in Scalia’s example, either robbery of failure to file a tax return—can qualify. That’s clearly overbroad. Thus, Judge Merchan’s instruction that the jury “need not be unanimous as to what those unlawful means were” was unconstitutional.

That isn’t all. Judge Merchan hand-selected three laws—federal election law, falsification of “other” business records and “violation of tax laws”—as the “unlawful means” by which state election law was violated. Mr. Trump received no notice of any of these offenses, and the prosecutor briefly alluded only to federal election law, during the trial. Mr. Trump tried to call former Federal Election Commission Chairman Brad Smith to explain why this law wasn’t violated, but Judge Merchan ruled Mr. Smith couldn’t testify on whether Mr. Trump’s conduct “does or does not constitute a violation” of federal election law, denying him a meaningful opportunity to be heard.

Judge Merchan’s second “unlawful” means, falsification of other business records, is circular: A misdemeanor becomes a felony if one falsifies business records by falsifying business records. Further, the prosecution never alleged or provided evidence that Mr. Trump falsified “other” business records. The prosecutors likewise neither alleged nor offered evidence that Mr. Trump had violated tax laws, Judge Merchan’s third predicate.

Mr. Trump, like all criminal defendants, was entitled to due process. The Constitution demands that higher courts throw out the verdict against him. That takes time, however, and is unlikely to occur before the election. That unfortunate reality will widen America’s political divide and fuel the suspicion that Mr. Trump’s prosecution wasn’t about enforcing the law but wounding a presidential candidate for the benefit of his opponent.

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.


Israel, Hamas and the Law of War

If the State Department’s criticisms are serious, they imperil the defense of all civilized countries.

By David B. Rivkin, Jr., and Lee A. Casey

May 30, 2024, in the Wall Street Journal

As it defends itself against Hamas in Gaza, Israel has come under sustained political, media and legal attack for supposedly violating international law—and not only from hostile countries and bodies like the International Criminal Court and the International Court of Justice. On May 10 the U.S. State Department sent a report to Congress that concluded U.S.-provided arms have been used by Israel “in instances inconsistent with its IHL”—international humanitarian law—“obligations or with established best practices for mitigating civilian harm.”

These criticisms are based on a distorted view of the law of war and its crucial legal principles—distinction, proportionality, and the obligations owed to enemy civilians. They threaten Israel’s strategic interests and the ability of all law-abiding nations to defend themselves.

The law of armed conflict is a practical set of rules directed at ameliorating the harms of war—originally with respect to those engaged in combat, and over the years expanding to noncombatants associated with the military and ultimately to civilians. Protecting civilians and civilian property is an important goal of the laws of war, but not their paramount goal.

Other equally important goals are regulating the means and methods of warfare, ensuring appropriate treatment for wounded combatants and prisoners of war, and ensuring that the war aims of belligerents—generally understood as “military necessity”—can be pursued within these rules and requirements. But the law of war is in no way intended to level the playing field in favor of the weaker party.

The law of war has many sources, but the Biden administration should have followed the standard U.S. position, as laid out in the Law of War Manual. One of its most important teachings is that “although military necessity cannot justify actions that have been prohibited by the law of war, some law of war rules expressly incorporate military necessity.” That’s especially true of rules meant to protect civilian populations affected by armed conflict, largely embodied in the principles of “distinction” and “proportionality.”

The principle of distinction provides that civilians can’t be deliberately targeted for attack, as Hamas did on Oct. 7 and routinely does. In choosing how and what to attack, military commanders must make good-faith efforts to distinguish between civilian and military targets. “The law of war does not require that commanders and other decision-makers apply a fixed standard of evidence or proof,” the manual says. Rather, they “exercise professional judgment in making any assessment that a person or object is a military objective.”

Equally important is the principle of proportionality, whose meaning is widely misunderstood. Proportionality requires that the expected harms to civilians and civilian property from an attack can’t be “excessive” when compared with “the concrete and direct military advantage expected to be gained.” The comparison isn’t to the number of soldiers killed or to the number of casualties on each side of the conflict. Nor is there any upper limit on the number of civilian deaths that will trigger “war crimes” if exceeded.

The manual clearly states that “in assessing the military advantage of attacking an object, one may consider the entire war strategy rather than only the potential tactical gains from attacking that object.” There is a significant subjective component in making proportionality determinations. “It could often be the case that reasonable persons might disagree as to whether the expected civilian casualties from an attack would be excessive,” the manual states. “Similarly, reasonable commanders might make different decisions in applying the principle of proportionality.”

Commanders are also enjoined to take “feasible” precautions to protect civilians during an attack. Such measures might include attacking at times when civilians are less likely to be present and giving advance warnings. But the “standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible.” Moreover, “a commander may determine that a precaution would not be feasible because it would result in increased operational risk (i.e., a risk of failing to accomplish the mission) or an increased risk of harm to his or her forces.”

A critical and too often ignored aspect of the laws of war is that each party to a conflict is primarily responsible for protecting its own civilian population by moving them away from military targets and taking other measures to shield them. Hamas not only fails to meet these obligations; it uses civilians as human shields and invites casualties for propaganda purposes. That doesn’t relieve Israel from its proportionality obligations, but the manual makes clear that additional civilian injuries resulting from this illegal tactic are “a factor that may be considered in determining whether such harm is excessive.” Hamas is also looting aid shipments, making it more difficult for assistance to reach Gaza civilians.

Based on these rules and currently available credible evidence, there is no reasonable case that Israel has violated the laws of war. Such claims are grounded at best in speculation, which is unlikely to be entirely accurate. To the extent that Israel hasn’t followed U.S. “best practices,” as the State Department complains, it doesn’t mean there have been violations. Such measures are prudential and not required by law. Hamas, by contrast, indisputably commits war crimes by deliberately attacking civilians, brutalizing Israeli women and children, taking hostages, systematically locating military facilities in or near civilian installations, and using Palestinian civilians as human shields.

Other antagonists of Israel, including at the ICC and the ICJ, have argued in addition that the Jewish state, as an “occupying” power, is obligated to feed, clothe and protect Gaza’s civilian population. But Israel left the strip in 2005. Hamas initiated the current armed conflict, and Israel won’t have the obligations of an occupying power unless it takes control of the territory after hostilities are ended.

If the U.S. and other civilized countries follow the logic of these criticisms of Israel, the consequences will be dire. Most immediately, U.S. condemnations will embolden the Jewish state’s enemies—most of which are also hostile to the U.S.—and could impede Israel’s ability to defeat Hamas. In the future, the administration’s standards of conduct could impair the ability of all law-abiding nations to defend themselves.

Nuclear deterrence, the mainstay of U.S. defense strategy, would be delegitimized if obligations to the civilian population are expanded so that injury to civilians is elevated over all other considerations in determining whether a particular combat operation is lawful. Even in peacetime, this approach would be terrible statecraft. At a time when rogue states and terrorist organizations are waging numerous wars, it’s a formula for global anarchy.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.


What’s at Stake in the Trump Immunity Case

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.


How to Be Ready for Wildfires

By David B. Rivkin, Jr., and Robert A. Julian

March 11, 2024, in the Wall Street Journal

The September 2020 Archie Creek Complex Fire in Douglas County, Ore., destroyed 138 houses, more than 100,000 acres of land and an entire fishing ecosystem. Hundreds of families lost everything in the blaze and have had to live the past 3½ years, much of it in a Covid lockdown, in trailers.

Three government reports found that Berkshire Hathaway Energy’s PacifiCorp caused the fires. But PacifiCorp has delayed paying victims for their losses. Seventeen Douglas County homeowners have died waiting for a judge to give them a trial date. The Oregonian reported a year ago that the claims were “moving through the court system at a glacial pace, leaving thousands of victims in a debilitating state of financial and emotional uncertainty.” It wasn’t until December that PacifiCorp, facing trial, settled the homeowners’ and timber companies’ claims for $250 million.

Douglas County isn’t alone. Since 2017, wildfires have burned millions of acres, destroyed more than 30,000 homes, and killed more than 235 people in California, Oregon and Hawaii. Damages—economic losses and personal injury—are in the billions of dollars. When old equipment fails because of high velocity windstorms, firefighters simply can’t get to the fires in time.

PacifiCorp went from earning $921 million in 2022 to losing $468 million in 2023, a financial shellacking driven by $1.6 billion in wildfire-related charge-offs. Fires have taken a heavy toll on other investor-owned electric utilities, as Warren Buffett noted in his recently released annual letter to Berkshire Hathaway shareholders. Mr. Buffett argued that investor-owned utilities in many states are unable to raise sufficient capital and are facing bankruptcy. Their customers will experience higher rates and less reliable service.

One reason that utilities face this industrywide crisis is that too many public-utility commissions, or PUCs, require them to fund green projects instead of hardening electrical lines, clearing above-ground lines of vegetation, and creating an emergency shut-off system that would reliably cut power during dangerous storms.

Another problem is the interminable delays in dealing with wildfires’ consequences. There is no evidence that Oregon’s governor, Legislature, PUC or district attorneys have taken any action to determine PacifiCorp’s responsibility for igniting the fires that raged in more than a dozen Oregon counties. Victims’ lawyers have secured judgments against PacifiCorp for recklessly and willfully causing four of the 2020 Northern Oregon fires that didn’t involve the Douglas County fires, but the state government has been missing in action.

California, with a political and regulatory culture similar to Oregon’s, has done better. The California Department of Forestry and Fire Protection, which is responsible for fire protection on state lands, promptly issued reports, finding that California’s largest electric utility, Pacific Gas & Electric, had ignited most of that state’s fires in 2017 and 2018. While this liability plunged PG&E into bankruptcy, many state agencies worked together to ensure that the legal proceedings moved quickly so that victims could obtain timely relief.

District attorneys in seven counties prosecuted PG&E for killing 84 people in the 2018 Camp Fire and structured three civil settlements of its responsibility for three other post-2018 fires. The California PUC investigated the 2017 and 2018 fires, issued a scathing report on the utility’s disregard for safety, and fined PG&E $1.9 billion. The company pleaded guilty to 84 counts of manslaughter, agreed to satisfy the PUC’s fine, and paid roughly $129 million to local jurisdictions pursuant to the district-attorney-driven settlements. The California Legislature adopted an emergency measure establishing a utility-funded wildfire fund to resolve future wildfire claims and encourage PG&E to resolve its claims within 18 months. Gov. Gavin Newsom signed the legislation and then guided PG&E, the PUC, the victims’ lawyers, the shareholders and the courts to resolve the case and pay out a record $13.5 billion to the victims.

Oregon’s government hasn’t done anything similar for its citizens. The situation appears to be the same in Hawaii, where the local utility, Hawaiian Electric, seems to be on the same litigation defensive after the August 2023 Maui fires.

There is a set of straightforward solutions that requires all parties to adopt best practices, resolve legal battles expeditiously and compensate victims promptly. As a first step, state legislatures should direct and fund their agencies to investigate and issue prompt reports on the cause of wildfires. The states should adopt wildfire-fund legislation similar to California’s emergency law that permitted PG&E to reorganize and stabilize the utility market. But states shouldn’t exonerate and protect the utilities from liability for their destruction of the land and homes and killing and injuring people.

Legislatures should create a legal docket system that resolves utility-caused fire claims in a single coordinated proceeding, on a one-year timetable to trial. Utilities should be legislatively pushed to resolve claims within 12 months, via wildfire-fund mechanisms, rather than engage in a prolonged legal fight. And state judges should set trial dates within a year of the claim filing until the legislatures adopt the 12-month legal docket system.

State legislatures should also strip away governmental immunity from PUCs and subject them to liability, creating a powerful incentive for balancing climate-change and fire-safety considerations in the public interest. Finally, states should require utilities to replace their unsafe old equipment by set dates. The end of 2024 would be a reasonable target. This would be expensive, but the costs of the status quo are far greater.

Windstorms will continue, and the aging and increasingly dangerous electric-utility infrastructure will cause fires. Governments and utilities must join together to take necessary measures to update their equipment and ensure that those who suffer injury or loss are quickly and completely compensated.

Messrs. Rivkin and Julian are attorneys based respectively in Washington and San Francisco. They represented the Tort Claimants Committee in the PG&E bankruptcy case and now represent homeowners, commercial landowners and wineries in their litigation against PacifiCorp in Oregon.


Why Samuel Alito Shuns the State of the Union

He found the partisan spectacle distasteful even before Obama’s inaccurate declamation about the Supreme Court in 2010.

By David B. Rivkin, Jr., and James Taranto

March 6, 2024, in the Wall Street Journal

Justice Samuel Alito’s first State of the Union address was a happy occasion, but things went downhill after that. “The Supreme Court now has two superb new members,” President George W. Bush told the nation on Jan. 31, 2006. Justice Alito had been confirmed that same day, Chief Justice John Roberts four months earlier. Both were in the audience—justices get front-row seats—and both eventually came to regard the annual ritual as a burden. Justice Alito hasn’t attended one since 2010.

“Unless you’re there on the floor, you don’t really appreciate what’s going on,” Justice Alito told the Journal in an interview last spring. “The members [of Congress] are extremely vocal. . . . I remember during one where President Bush was speaking, and the leaders behind us were saying, ‘Bulls—! That’s bulls—!’ They’re always making these comments, and loud enough so you could hear it two or three rows away.”

That’s awkward for members of the court, whose official role requires them to rise above partisanship. Applause lines are even trickier, since silence can seem like dissent. “We sit there like potted plants, and then we look out of the corner of our eye to see whether any of our colleagues are going to stand up, or the Joint Chiefs are,” Justice Alito said. “There are some times when you have to stand up. Like, ‘Don’t we honor the brave men and women who are fighting and dying for this country?’—you can’t not stand up for that. But then you say, ‘Isn’t the United States a great country’—you stand up—‘because we are going to enact this legislation’—maybe you have to sit down.”

In January 2010, the court itself became the target of a presidential declamation. “With all due deference to separation of powers,” President Barack Obama said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

As Democratic lawmakers arose behind the justices and clapped, TV cameras caught Justice Alito shaking his head and mouthing the words “not true.” He was right, as even the New York Times’s Linda Greenhouse acknowledged. Citizens United v. FEC didn’t touch the Tillman Act of 1907, which to this day prohibits corporate campaign contributions. It struck down provisions of a different law, enacted in 2002, and overturned precedents dating only to 1990 and 2003.

Justice Alito was surprised by Mr. Obama’s error. “I imagine the State of the Union speech is vetted inside out and backwards,” he told us. “Somebody should have seen that this statement was inaccurate.” He also failed to realize he was on camera: “My mistake was that I didn’t think about the fact that the text is distributed to the media ahead of time. They knew that the president was going to talk about the Supreme Court, so they had their cameras on us. . . . That’s why it’s a sore point.”

Justice Alito isn’t the first member of the court to shun the State of the Union. John Paul Stevens never attended. Antonin Scalia last went in 1997, Clarence Thomas in 2006. “It has turned into a childish spectacle,” Scalia said in 2013. “I don’t want to be there to lend dignity to it.”

Chief Justice Roberts was only a little less pointed in March 2010, six weeks after the Obama-Alito kerfuffle. “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling,” he told students at the University of Alabama Law School. “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”

The chief justice has nonetheless continued to attend and is expected to do so again on Thursday night. As with those applause lines, you can’t even abstain without making a statement.

Mr. Taranto is the Journal’s editorial features editor. Mr. Rivkin practices appellate and constitutional law in Washington.