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

September 16, 2023, in the Wall Street Journal

Justice Samuel Alito has refused a demand from Senate Democrats that he disqualify himself from a pending case because of an interview in this newspaper. One of us (Mr. Rivkin) is on the legal team representing the appellants in Moore v. U.S. and conducted the interview jointly with a Journal editor.

In a four-page statement Sept. 8, Justice Alito noted that other justices had previously sat on cases argued by lawyers who had interviewed or written books with them. “We have no control over the attorneys whom parties select to represent them,” he wrote. “We are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts. And that is what we do.”

The recusal demand came in an Aug. 3 letter to Chief Justice John Roberts signed by Senate Judiciary Committee Chairman Dick Durbin and the committee’s other Democrats, excluding Georgia’s Sen. Jon Ossoff. It is part of a campaign against the court’s conservatives by Democratic politicians, left-wing advocacy groups and journalists whose goals include imposing a congressionally enacted code of ethics on the high court.

Although there already is a judicial ethics code, propounded by the U.S. Judicial Conference, it applies only to the lower federal courts, which Congress established. Proposals to create a Supreme Court code of conduct—including onerous and enforceable recusal requirements—raise fundamental issues of judicial independence and separation of powers. Chief Justice Roberts noted in NFIB v. Sebelius (2012) that the justices have a “responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution.”

Congressional imposition of such rules would do precisely that. Justice Alito put the point strongly in the Journal interview. “Congress did not create the Supreme Court,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” To be sure, Article III authorizes Congress to regulate the court’s appellate jurisdiction, and Justice Alito followed his observation with this caveat: “Now, they have the power of the purse, so they have the ability to take away all of our money if we don’t do what they want. So as a practical matter, they have a lot of authority. But as a constitutional matter, they don’t.”

The Supreme Court’s independence is critical to America’s constitutional structure. As James Madison observed in his notes of the Constitutional Convention, “if it be essential to the preservation of liberty that the Legislative Executive & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other.”

The political branches—Congress and the president—have overlapping powers that bear on the same policy issues. They also have effective tools at their disposal to fight encroachments on their authority. By contrast, the Supreme Court has the authority only to “say what the law is,” as Chief Justice John Marshall put it in Marbury v. Madison (1803). For the rule of law to prevail, the court has to carry out its duties free of any interference from the political branches. Yet its status as a countermajoritarian institution with no popular constituency makes it vulnerable to political attack.

The Constitution protects the judiciary by conferring life tenure on the justices and other Article III judges. They can be removed from office only through impeachment and conviction, and Congress is prohibited from reducing their salaries. Although lawmakers have enacted statutes establishing procedural and evidentiary rules for the lower federal courts, there is no constitutional basis supporting such authority over the Supreme Court. And while Congress first enacted recusal rules for lower courts in 1792, it didn’t extend them to the Supreme Court until 1948.

Even with respect to the lower courts, Congress doesn’t have a free hand. Recusal involves a core judicial function—the exercise of judgment in the same manner as deciding other legal issues. All recusals are determined case by case, considering the litigants and issues raised. History supports the premise that this is an inherent part of “judicial power,” belonging exclusively to the courts. In British and colonial courts alike, recusal decisions were handled entirely by judges, with no legislative input.

Congress can no more regulate this core judicial function than it can direct the president’s exercise of his core functions. As the Supreme Court confirmed in Trump v. Mazars (2020), which involved competing presidential and congressional claims, the resolution of separation-of-powers questions must take into account whether one branch of government is using its power to “aggrandize” itself at another’s expense or to gain some “institutional advantage.” The current efforts by Senate Democrats, while clothed in a concern for ethics, are plainly designed to weaken the court and put it under Congress’s thumb.

There is no evidence that the Supreme Court needs new recusal rules or has an ethics problem at all. Corruption inherently doesn’t loom large as a problem for the federal judiciary. The president and members of Congress must run for election, which requires them to raise campaign money. Both political branches provide tangible benefits to private parties through the creation or administration of spending programs and the letting of government contracts. This creates possibilities for corrupt influence.

Federal judges, by contrast, have life tenure and, as per Article III, hear only “controversies” that are brought before them. Like the president and other executive-branch officials, they are subject to impeachment for bribery or other corrupt acts. But fewer than a dozen jurists have been removed from office in more than two centuries. Recent accusations of “corruption” against conservative justices mostly involve their social activities with friends who have no pending cases before the court and likely never will. The critics seem untroubled (and rightly so) by similar behavior from liberal justices.

As Justice Alito’s statement notes, “recusal is a personal decision for each Justice.” Justices may look to the Judicial Conference’s Code of Conduct for guidance when considering whether to recuse themselves from a case. Although the federal statute requiring recusal in certain defined circumstances applies to the high court, the justices have never ruled on whether that application is constitutional.

The law, known as Section 455, incorporates standards anchored in traditional common law, so that they are arguably consistent with the original public meaning of Article III’s term “judicial power, exercised by the Supreme Court.” They mostly involve financial or family interests in a particular case. A judge might recuse himself, for instance, if a relative or a company in which he owns stock is a party to a case. Justices interpret and apply the law’s provisions in a flexible enough way to preserve judicial independence.

That flexibility is illustrated by U.S. v. Will (1980), in which the justices rejected the proposition that Section 455 obligated the entire court to recuse itself from hearing an appeal of a lawsuit, brought by 13 federal district judges, challenging the validity of statutes that repealed previously enacted cost-of-living pay increases for the judiciary. The decision by Chief Justice Warren Burger invoked “the ancient Rule of Necessity”: Because every judge had a financial interest in the outcome, a ruling by disinterested judges was a logical impossibility. Although Justice Harry Blackmun recused himself, the court held 8-0 that the repeal was constitutional only when it took effect before the increase did.

Even a single justice’s recusal can be harmful. Justice Alito’s statement related to Moore v. U.S. cited his “duty to sit,” a principle Justice William Rehnquist elucidated in a memorandum rejecting a motion to recuse himself from Laird v. Tatum (1972). Rehnquist noted a consensus among federal circuit courts of appeals “that a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” That duty, he argued, is even stronger for a justice, whose recusal “raises the possibility of an affirmance of the judgment below by an equally divided Court. The consequence attending such a result is, of course, that the principle of law presented by the case is left unsettled.”

When a judge serving on a lower court is recused, another judge is assigned to the case and the litigation goes forward. That’s impossible when a member of the high court is recused. No one can sit in for a justice. Thus, while lower federal judges generally resolve doubts by recusing themselves, the opposite presumption is appropriate for the Supreme Court.

In addition, if the duty to sit were weakened, there is a real danger that litigants would use recusal motions strategically to affect the outcomes of cases. Public-policy litigation often comes before the court through test cases, in which litigants have been selected with a view toward the current or likely position of the federal circuit courts with jurisdiction over their place of residence or operations. In contentious areas of the law, those positions may be markedly different, reflecting the balance of judges with different judicial philosophies on the circuits.

A circuit split is one of the principal reasons why the Supreme Court will agree to hear a case. In this context, two justices’ recusals could turn a losing case into a winning one. A single recusal and a tie vote would leave the split unresolved, so that different parts of the country would be governed under different interpretations of federal law. The Supreme Court Ethics, Recusal and Transparency Act, which Mr. Durbin’s committee advanced along party lines in July, would subject the justices’ recusal decisions to review by either their colleagues or a panel of lower-court judges, creating temptations within the judiciary itself to game the system.

Liberals should be as concerned as conservatives with maintaining the court’s integrity and independence, and at least on the bench they appear to be. All nine justices have signed a “Statement on Ethical Principles and Practices,” which affirms, among other things, that the justices have a duty to sit and that the decision to recuse or not is up to each individually: “If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

None of this is to deny that the justices should clearly define their recusal standards or that they should make public the reasoning for their decisions, as the Statement on Ethical Principles and Practices says they are free to do. There is value in assuring the public that these decisions are taken based on rational standards, honestly applied. But that is a matter for the justices, not Congress.

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 administration.

Source: https://www.wsj.com/articles/the-supreme-court-and-the-duty-to-sit-recusal-standards-ethics-durbin-alito-93c4dbb6

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

29 July 2023 in the Wall Street Journal

The Supreme Court usually makes news by making decisions, and it’s done plenty of that lately. In its first two terms with a 6-3 conservative majority, the justices have revisited old precedents and established new ones on abortion, gun rights, racial discrimination, freedom of speech and religion, the power of unelected federal regulators and more.

By comparison with the previous eight decades or so, the court has frequently declined to defer to elite political opinion, and as a result it has made news in other ways. A draft abortion opinion was leaked to the press. An armed man was arrested outside the home of Justice Brett Kavanaugh and charged with attempted assassination. The justices have come under attack from President Biden (“this is not a normal court”) and Democratic lawmakers. Partisan journalists have tried to gin up “ethics” scandals and incite animus against disfavored justices.

“I marvel at all the nonsense that has been written about me in the last year,” Justice Samuel Alito says during an early July interview at the Journal’s New York offices. In the face of a political onslaught, he observes, “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”

He does so with a candor that is refreshing and can be startling. He spoke with us on the record for four hours in two wide-ranging sessions, the first in April in his chambers at the court. In the interim, he wrote an op-ed for these pages responding in detail to a hit piece from ProPublica, a self-styled “independent, nonprofit newsroom that produces investigative journalism with moral force.” Many of the court’s critics claim to want more “transparency.” Their hostile reactions to our April interview and his June op-ed suggest—no surprise—that they’re really after ideologically congenial rulings, not to mention conformist press coverage.

Justice Alito, 73, was appointed in early 2006 and is now the second most senior associate justice. He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.

“There are very serious differences” in how the six conservative justices approach cases, Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas “gives less weight to stare decisis than a lot of other justices.” It is, “in its way, a virtue of his jurisprudence,” Justice Alito says. “He sticks to his guns.”

That’s why Justice Thomas writes many lone concurrences. In Dobbs v. Jackson Women’s Health Organization (2022), he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including those involving same-sex marriage, contraception and consensual sodomy. Justice Alito’s majority opinion carefully distinguished those issues from abortion. Justice Thomas often disregards precedents with which he disagrees and follows his own route to the majority’s destination—to cite a recurring example, by relying on the 14th Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. The disadvantage of this approach, Justice Alito says, “is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule.”

Justice Gorsuch has an ornery streak that has shown itself in cases involving Indian law, crime and discrimination. “He’s definitely not a consequentialist,” Justice Alito says of his colleague—meaning he is less concerned with the real-world effects of following his principles.

An example is Ramos v. Louisiana (2020), which overturned a pair of 1972 precedents and held that the Sixth Amendment’s right to a jury trial requires unanimity for a finding of guilt in state court. Every state but Louisiana and Oregon already required unanimous verdicts, but “Ramos potentially affected many, many criminal convictions that had been obtained . . . using nonunanimous jury verdicts, which had been specifically approved by the Supreme Court,” Justice Alito says. “Overruling those decisions had potentially vast consequences. . . . That was not a big factor in his analysis.”

As for Chief Justice John Roberts, “he puts a high premium on consensus. He rarely dissents.” He filed no outright dissenting opinions in the 2022-23 term and only one in 2021-22. He also “has expressed a very strong tendency to protect the prerogatives of the judiciary,” as in Bank Markazi v. Peterson (2016). The court upheld a law directing that Iranian assets targeted by successful plaintiffs in a specific terrorism case be seized to pay the judgment. The chief justice dissented against what he called an unacceptable intrusion on judicial power: “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases.”

On the liberal side of the court, by contrast, “I don’t see that there’s a difference in interpretive method,” Justice Alito says. Yet he emphasizes that “we don’t always line up 6-3, 5-4, the way some people tend to think. If you look at all the cases, there are cases where the lineup is unusual.” Chief Justice Roberts wrote two election-law decisions this term, Allen v. Milligan and Moore v. Harper, in which he was joined by the three liberals and Justice Kavanaugh, along with Justice Amy Coney Barrett in the latter case.

Another prime example is National Pork Producers Council v. Ross, which upheld a California law banning the sale of meat from pigs that are “confined in a cruel manner”—almost all of which is produced in other states. The council argued that the law violated the Dormant Commerce Clause, a doctrine that limits states’ authority to enact policies that burden interstate commerce.

Justice Alito, who agreed with that view, says “it’s no secret that Justice Thomas and Justice Gorsuch don’t think that there is such a thing as the Dormant Commerce Clause.” Justices Barrett, Sonia Sotomayor and Elena Kagan signed on to parts of Justice Gorsuch’s opinion, providing a majority that let the law stand.

“I have not joined Justice Thomas, Justice [Antonin] Scalia, Justice Gorsuch in saying we should get rid of the Dormant Commerce Clause,” Justice Alito says. “I’ve written this in the Tennessee wine case—that the Constitution surely was meant to contain some principle that prevents the balkanization of the economy. That was one of the main reasons for calling the Constitutional Convention in Philadelphia.”

He refers to his 7-2 ruling in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019). In dissent, Justices Gorsuch and Thomas cited the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate alcohol. Justice Alito’s majority opinion treated that provision “as one part of a unified constitutional scheme,” within which the lawmakers who ratified the 21st Amendment understood that “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.”

That demonstrates a central feature of Justice Alito’s jurisprudence: its emphasis on historical context. “I think history often tells us what the Constitution means,” he says, “or at least it can tell us what the Constitution doesn’t mean.” His dissent in Obergefell v. Hodges (2015) is a case in point. “It’s perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage,” he says. Before this century, “no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage.” The first country to legalize it was the Netherlands, effective in 2001.

The same attention to history informs Justice Alito’s textualism. “I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically,” he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” covers “sexual orientation and gender identity.”

Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is “because of” sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity “hardly existed as a concept, even among professionals in the field,” as Justice Alito says. “When it’s very clear that the author of the text . . . cannot have meant something, then I don’t think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result.”

Justice Alito’s respect for precedent has limits: “Some decisions—and I think that Roe and Casey fell in this category—are so egregiously wrong, so clearly wrong, that’s a very strong factor in support of overruling.” Those are the 1973 and 1992 abortion cases that Dobbs overturned, with Justice Alito writing for a majority of five. Chief Justice Roberts provided a sixth vote to uphold Mississippi’s 15-week abortion ban but urged “a more measured course” that would narrow the precedents while deferring the question of whether to overturn them altogether.

Justice Alito has been known to take a similarly incremental approach. His opinion for the court in Janus v. Afscme (2018) held that compelling public employees to pay union dues violated the First Amendment, and it overturned a 1977 precedent, Abood v. Detroit Board of Education. A foretaste came in Harris v. Quinn (2014), also written by Justice Alito, which subjected Abood to a withering critique but left it standing.

“The question how broad a decision should be—should we overrule a prior precedent when we really don’t have to in order to decide this case?—it’s a judgment call,” he says. “There can be reasons for deciding the case more narrowly. Maybe we’re not sure whether it should be overruled. Maybe we think it would be better if the issue were highlighted for others to address first—scholars, lower-court decisions. Maybe it’s a question of what a majority of the court is willing to go along with.”

That last contingency sometimes depends on events more than philosophy. Justice Ruth Bader Ginsburg died in September 2020, and President Trump appointed Justice Barrett to succeed her. Had Ginsburg lived a few months longer, the chief justice’s tentative approach might have prevailed in Dobbs. Or perhaps the justices wouldn’t have taken the case.

In the 2023-24 term, the court will consider whether to overturn Chevron v. NRDC (1984), an increasingly disputed precedent that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes. Justice Alito is careful not to state a position on Chevron, but he does make a pertinent broader point about precedent: “I’m not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.”

He says that’s what his colleagues did last month in U.S. v. Texas, the term’s only case that had him alone in dissent. The court threw out Texas’ challenge to lax Biden administration immigration guidelines on the ground that the state lacked standing to challenge them in court. But Justice Alito says Texas’ claim of injury “was the same as—in fact, stronger than—that of Massachusetts in Massachusetts v. EPA,” a 2007 case that opened the door to federal regulation of greenhouse gases. “The court just hardly said a word about Massachusetts v. EPA.”

The Biden policies suspended all enforcement measures for certain categories of illegal aliens, despite statutory language to the contrary—a clear violation, in Justice Alito’s view, of the president’s express constitutional duty to ensure that the law be faithfully executed. How did all eight of his colleagues end up on the other side? “I have no idea,” he says. “I honestly don’t. Why did it turn out that way? Because it involves immigration? Because it’s vaguely connected to Trump? I don’t know. I don’t know what the explanation is.”

After the justices reconvene on the first Monday in October, they will continue making news in the usual way. Among the issues on the fall docket, along with the reconsideration of Chevron: whether South Carolina impermissibly gerrymandered its congressional districts by race, whether the Consumer Financial Protection Bureau’s funding scheme is unconstitutional, whether Congress can tax unrealized investment income, and whether someone subject to a domestic-violence restraining order can be deprived of his right to possess firearms. (Mr. Rivkin and a law partner, Andrew Grossman, represent the appellants in Moore v. U.S., the tax case.)

The attacks on the court are sure to keep coming as well. Last week the Senate Judiciary Committee voted along party lines to advance Sen. Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act, which purports to impose on the justices and their clerks regulations “at least as rigorous as the House and Senate disclosure rules.”

Justice Alito says he voluntarily follows disclosure statutes that apply to lower-court judges and executive-branch officials; so do the other justices. But he notes that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”

Do the other justices agree? “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”

The political branches have other weapons they could deploy against the court. The Constitution doesn’t specify the number of justices, so Congress could pack the court by enacting legislation to expand its size. Last week a pair of leftist law professors issued an “open letter” urging President Biden to “restrain MAGA justices” by applying their rulings as narrowly as possible. The day the court decided Biden v. Nebraska, striking down Mr. Biden’s student-loan forgiveness plan, the president announced that he was undertaking legally questionable alternatives.

Justice Alito wonders if outright defiance may be in the offing for the first time since the aftermath of Brown v. Board of Education (1954): “If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown.”

Will the justices’ recent rulings endure? The court shows little sign of yielding to external pressure, but its three liberal members stand ready to overturn many recent precedents from which they dissented. Whether they’ll have the opportunity likely depends on who holds the White House and the Senate when future high-court vacancies arise. About that prospect, Justice Alito demurs: “We are very bad political pundits.”

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Taranto is the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/samuel-alito-the-supreme-courts-plain-spoken-defender-precedent-ethics-originalism-5e3e9a7

By David B. Rivkin Jr. and Kristin A. Shapiro

April 17, 2023, in the Wall Street Journal

Manhattan District Attorney Alvin Bragg’s indictment of Donald Trump could mean trouble down the road for Joe Biden. “I think our Republican AGs and DAs”—attorneys general and district attorneys—“should get creative,” Mike Davis, a Republican former Senate staffer, told the New York Post. Rep. James Comer told Fox that he’s heard from at least two prosecutors who “want to know if there are ways they can go after the Bidens now.”

Mr. Biden himself is currently safe under the accepted view that sitting presidents are immune from prosecution. But under the Trump precedent, what’s to stop an ambitious Republican prosecutor somewhere from bringing dubious state charges against him before a hostile jury after he leaves office? Likewise for his successors of either party. Every four to eight years, prosecutors would order up a presidential ham sandwich. Presidents might end up having to flee the country when they leave office.

But there’s a way Mr. Trump could stop the madness that would serve his own interests as well as his successors’. His lawyers should file a notice in the Southern District of New York to remove the case to federal court under a unique legal defense: immunity under the U.S. Constitution’s Supremacy Clause.

The clause provides that federal laws, including the Constitution, “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” The Supreme Court stated in McCulloch v. Maryland (1819) that “it is of the very essence” of the federal government’s supremacy “to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” The justices invalidated Maryland’s tax on the Bank of the United States on grounds that the power to tax the federal government would make a state “capable of arresting all the measures of the government, and of prostrating it at the foot of the states.”

One pivotal aspect of the Supremacy Clause is its provision of immunity to federal officers from state criminal prosecution for actions relating to their federal duties. The seminal case is In re Neagle (1890), in which the justices held that California couldn’t criminally prosecute a federal marshal for killing a man in defense of Justice Stephen Field. If a federal officer “can be arrested and brought to trial in a state court for an alleged offense against the law of the state, yet warranted by the federal authority they possess,” the court found, “the operations of the general government may at any time be arrested at the will of one of its members.”

To be sure, the case against Mr. Trump involves conduct that wasn’t “warranted by the federal authority” he possessed. But there is a strong argument that Supremacy Clause immunity should extend to any state criminal prosecutions of federal officers undertaken because of their federal service, even if the charged conduct is unrelated to their federal duties. Permitting states to burden former federal officers on account of their federal services offends the Supremacy Clause’s core principles and makes it easy for aggressive state prosecutors to circumvent. As the Supreme Court warned in Neagle, “unfriendly” states could administer the law “in such a manner as to paralyze the operations of the government.” That threat exists anytime former or current federal officers are targeted for criminal prosecution because of their federal service. A president or other official can’t lead effectively under constant threat of retaliatory prosecution.

Mr. Trump’s foes like to say that no one is above the law; and Mr. Biden’s enemies would no doubt adopt the same slogan. But Supremacy Clause immunity wouldn’t vitiate that principle. It wouldn’t prevent federal prosecutions, and it would protect against state criminal prosecutions only when the prosecutor targeted the defendant for his federal service. Mr. Trump could still be prosecuted if he shot a passerby on Fifth Avenue.

A recognition of Supremacy Clause immunity in this context would involve an inquiry into a prosecutor’s state of mind, something courts are reluctant to undertake in most contexts. But not all—courts are regularly required to determine, for example, whether a prosecutor has engaged in racial discrimination in jury selection, or whether a state criminal prosecution is motivated by a desire to harass the defendant.

First Amendment case law also recognizes, in the context of protecting core constitutional rights, the impermissibility of disparate law-enforcement treatment. In Nieves v. Bartlett (2019), the high court held that probable cause isn’t sufficient to block a retaliatory-arrest claim “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

An inquiry into whether a state criminal prosecution was undertaken because of the defendant’s federal service would involve judicially manageable questions such as whether a reasonable prosecutor would bring the charges and whether there are indicia of political retribution. Mr. Trump has a strong argument here. Does anyone believe he’d be prosecuted for anything having to do with Stormy Daniels if he hadn’t become president?

Federal officers, including former officers, have a statutory right to remove state civil or criminal cases against them “for or relating to any act under color of such office” to federal court (emphasis added). The U.S. Supreme Court has interpreted this language broadly, explaining in Willingham v. Morgan (1969) that “the test for removal should be broader, not narrower, than the test for official immunity” because the purpose of the statute “is to have the validity of the defense of official immunity tried in a federal court.”

In Jefferson County v. Acker (1999), the justices permitted removal of state actions against two federal judges seeking collection of a state occupational tax. The court explained that, even though the tax was imposed on the judges personally, it was effectively a tax on the performance of their federal duties, thereby providing the “essential nexus” between their official duties and the state prosecution.

Mr. Trump has 30 days after his arraignment—until May 4—to invoke the federal-officer removal statute. Because a novel and important constitutional issue would be at stake, the case could easily reach the Supreme Court, and it would be wise for the federal courts to delay any state trial until Mr. Trump’s immunity defense is resolved. With only 21 months remaining in his term, Mr. Biden might find himself quietly rooting for a decision in his predecessor’s favor.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Shapiro served as an attorney-adviser at the Justice Department’s Office of Legal Counsel during the Trump and Biden administrations and is a senior fellow at the Independent Women’s Forum. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/is-braggs-case-against-trump-constitutional-supremacy-clause-indictment-federal-state-court-new-york-6adffbaa

By David B. Rivkin, Jr., and Andrew M. Grossman

December 27, 2022, in the Wall Street Journal

It’s the classic threat of B-movie mobsters: Nice business you got there, it’d be a shame if something happened to it. Government shouldn’t operate like that, but it too often does, sometimes to evade the Constitution’s limits on its power. A recent decision by the Second U.S. Circuit Court of Appeals upheld the practice and provided a road map for officials to circumvent the First Amendment’s protection for freedom of speech.

Maria Vullo led the New York State Department of Financial Services, which has broad power to regulate almost every major financial player in the U.S. After the February 2018 school shooting in Parkland, Fla., Ms. Vullo and then-Gov. Andrew Cuomo issued a press release stating that the department would “urge” the insurers, banks and companies it regulates “to review any relationships they may have with the National Rifle Association” for “reputational risk.”

The goal was to punish the NRA for its gun-rights advocacy. The press release quoted Ms. Vullo as saying that corporations need to “lead the way” on “positive social change . . . to minimize the chance” of future shootings. “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.”

Ms. Vullo followed through with official guidance to regulated entities. Citing “the social backlash against the National Rifle Association” and society’s “responsibility to act,” the guidance directed insurers and banks to evaluate the “reputational risks” of “dealings with the NRA or similar gun promotion organizations.”

Behind the scenes, Ms. Vullo was pressuring senior executives of the insurance syndicate Lloyd’s of London. In 2017 she had launched an investigation of insurers that formed partnerships with the NRA to sell “affinity” insurance, including gun-owner policies. The basis was twofold: technical violations of disclosure rules and alleged violation of state law by covering losses, including criminal-defense costs, even when policyholders were found to have illegally discharged their weapons.

The NRA alleges in a lawsuit that, in a meeting with Lloyd’s, Ms. Vullo acknowledged that these problems were widespread in the marketplace but made clear that her focus was the NRA policies. The key to minimizing liability, she emphasized, was joining the department’s efforts to combat the availability of firearms by weakening the NRA.

Lloyd’s got the message. Despite its reputation for insuring even the most controversial risks, it understood that its regulator considered working with one of the nation’s most broadly supported advocacy organizations to be off-limits. Lloyd’s publicly announced that it was terminating all business with the NRA. It signed a consent decree with DFS permanently barring it from participating in any insurance program with the NRA—rather than the usual remedy of bringing policies into compliance and possibly paying a fine. The decree didn’t cover the non-NRA policies that ran afoul of the same New York laws. The NRA says its corporate insurer refused to renew its policy because it feared similar reprisals after seeing DFS target Lloyd’s and another NRA-affinity insurer.

In Bantam Books v. Sullivan (1963), officials from the Rhode Island Commission to Encourage Morality in Youth sent letters to booksellers informing them that it had identified certain books and magazines as “objectionable” and noting its power to recommend obscenity prosecutions. The U.S. Supreme Court held that this “informal censorship” violated the First Amendment. Although the government didn’t seize or ban any books, it “deliberately set about to achieve the suppression” of protected speech.

So did Ms. Vullo. As the Second Circuit observed, she “plainly favored gun control over gun promotion” and therefore “sought to convince DFS-regulated entitles to sever business relationships with gun promotion groups.” Yet the judges concluded that was reasonable.

Their logic is circular: The NRA’s advocacy led to a “backlash” that could “affect the New York financial markets,” given that “a business’s response to social issues can directly affect its financial stability in this age of enhanced corporate social responsibility.” So Ms. Vullo’s entreaties to drop the NRA weren’t threats, but actions “to protect DFS-regulated entities and New York residents from financial harm and to preserve stability in the state’s financial system.”

It’s fanciful to suggest that selling insurance to, or in partnership with, the NRA poses a threat to New York’s financial system. More important, the Constitution’s protections don’t amount to much if government officials can censor disfavored opinions simply by labeling them “reputational risk.” And even if such risk is real, empowering government officials to engage in censorship on that basis creates a heckler’s veto over controversial speech: Gin up enough online outrage or disagreement by officials or purported experts, and you can justify censoring anything or anyone.

The Biden White House successfully pressed Twitter to shut down accounts, including journalist Alex Berenson’s , for bucking the expert consensus on Covid vaccines. The FBI and Twitter cooperated in 2020 to censor humorous tweets about the election and voting. The Cato Institute’s Will Duffield has identified 62 recent instances of government officials making specific demands to censor speech on social-media platforms. This kind of “jawboning” by government officials usually occurs in the shadows and rarely comes to light. It can be difficult to identify when official encouragement crosses the line into coercion.

The Supreme Court will have to take up the question sooner or later, and an NRA appeal would present a strong opportunity to do so. The DFS has broad discretionary power to regulate industries on which almost everybody depends. That makes it all the more crucial to ensure that it respects the Constitution.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is a senior legal fellow at the Buckeye Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-nra-vs-the-censorship-mob-national-rifle-association-weapons-shootings-rules-defense-banks-insurers-11672176818

_{By David B. Rivkin Jr. and Lee A. Casey}

_{August 22, 2022, in the Wall Street Journal}

_{Was the Federal Bureau of Investigation justified in searching Donald Trump’s residence at Mar-a-Lago? The judge who issued the warrant for Mar-a-Lago has signaled that he is likely to release a redacted version of the affidavit supporting it. But the warrant itself suggests the answer is likely no—the FBI had no legally valid cause for the raid.}

_{The warrant authorized the FBI to seize “all physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§793, 2071, or 1519” (emphasis added). These three criminal statutes all address the possession and handling of materials that contain national-security information, public records or material relevant to an investigation or other matters properly before a federal agency or the courts.}

_{The materials to be seized included “any government and/or Presidential Records created between January 20, 2017, and January 20, 2021”—i.e., during Mr. Trump’s term of office. Virtually all the materials at Mar-a-Lago are likely to fall within this category. Federal law gives Mr. Trump a right of access to them. His possession of them is entirely consistent with that right, and therefore lawful, regardless of the statutes the FBI cites in its warrant.}

_{Those statutes are general in their text and application. But Mr. Trump’s documents are covered by a specific statute, the Presidential Records Act of 1978. It has long been the Supreme Court position, as stated in Morton v. Mancari (1974), that “where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” The former president’s rights under the PRA trump any application of the laws the FBI warrant cites.}

_{The PRA dramatically changed the rules regarding ownership and treatment of presidential documents. Presidents from George Washington through Jimmy Carter treated their White House papers as their personal property, and neither Congress nor the courts disputed that. In Nixon v. U.S. (1992), the U.S. Circuit Court of Appeals for the District of Columbia held that Richard Nixon had a right to compensation for his presidential papers, which the government had retained under the Presidential Recordings and Materials Preservation Act of 1974 (which applied only to him). “Custom and usage evidences the kind of mutually explicit understandings that are encompassed within the constitutional notion of ‘property’ protected by the Fifth Amendment,” the judges declared.}

_{The PRA became effective in 1981, at the start of Ronald Reagan’s presidency. It established a unique statutory scheme, balancing the needs of the government, former presidents and history. The law declares presidential records to be public property and provides that “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records.”}

_{The PRA lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access. Notably, it doesn’t address the process by which a former president’s records are physically to be turned over to the archivist, or set any deadline, leaving this matter to be negotiated between the archivist and the former president.}

_{The PRA explicitly guarantees a former president continuing access to his papers. Those papers must ultimately be made public, but in the meantime—unlike with all other government documents, which are available 24/7 to currently serving executive-branch officials—the PRA establishes restrictions on access to a former president’s records, including a five-year restriction on access applicable to everyone (including the sitting president, absent a showing of need), which can be extended until the records have been properly reviewed and processed. Before leaving office, a president can restrict access to certain materials for up to 12 years.}

_{The only exceptions are for National Archives personnel working on the materials, judicial process, the incumbent president and Congress (in cases of established need) and the former president himself. PRA section 2205(3) specifically commands that “the Presidential records of a former President shall be available to such former President or the former President’s designated representative,” regardless of any of these restrictions.}

_{Nothing in the PRA suggests that the former president’s physical custody of his records can be considered unlawful under the statutes on which the Mar-a-Lago warrant is based. Yet the statute’s text makes clear that Congress considered how certain criminal-law provisions would interact with the PRA: It provides that the archivist is not to make materials available to the former president’s designated representative “if that individual has been convicted of a crime relating to the review, retention, removal, or destruction of records of the Archives.”}

_{Nothing is said about the former president himself, but applying these general criminal statutes to him based on his mere possession of records would vitiate the entire carefully balanced PRA statutory scheme. Thus if the Justice Department’s sole complaint is that Mr. Trump had in his possession presidential records he took with him from the White House, he should be in the clear, even if some of those records are classified.}

_{In making a former president’s records available to him, the PRA doesn’t distinguish between materials that are and aren’t classified. That was a deliberate choice by Congress, as the existence of highly classified materials at the White House was a given long before 1978, and the statute specifically contemplates that classified materials will be present—making this a basis on which a president can impose a 12-year moratorium on public access.}

_{The government obviously has an important interest in how classified materials are kept, whether or not they are presidential records. In this case, it appears that the FBI was initially satisfied with the installation of an additional lock on the relevant Mar-a-Lago storage room. If that was insufficient, and Mr. Trump refused to cooperate, the bureau could and should have sought a less intrusive judicial remedy than a search warrant—a restraining order allowing the materials to be moved to a location with the proper storage facilities, but also ensuring Mr. Trump continuing access. Surely that’s what the government would have done if any other former president were involved.}

_{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.}

_{Source: https://www.wsj.com/articles/the-trump-warrant-had-no-legal-basis-mar-a-lago-affidavit-presidential-records-act-archivist-custody-classified-fbi-garland-11661170684}

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

August 10, 2022, in the Wall Street Journal

The warrant under which federal agents searched Donald Trump’s Florida home hasn’t been made public, but press leaks suggest that it was related to the former president’s suspected mishandling of official documents. That has prompted speculation that Mr. Trump could be prosecuted under a law governing the misuse of federal government documents, which includes a provision for disqualification from federal office. According to this theory, if Mr. Trump is convicted, he would be ineligible to serve a second term as president. It won’t work. The theory is deficient on both statutory and constitutional grounds.

Presidential records were traditionally considered the former president’s personal property. Congress acknowledged this in the Presidential Libraries Act of 1955, which “encouraged”—but didn’t require—ex-presidents to deposit their papers for the benefit of researchers and history.

After President Richard Nixon resigned in August 1974, he struck an agreement with the archivist of the United States to donate his papers, but he reserved the right to destroy certain materials, including some of the infamous Watergate tapes. To prevent this, Congress enacted the Presidential Recordings and Materials Preservation Act of 1974. That law, which applied only to Nixon, required these materials to be secured by the government and ultimately made public under appropriate regulations. It provided for financial compensation to the former president, a further acknowledgment of his property interest in the materials.

The Presidential Records Act of 1978 addressed the handling of later presidents’ papers. The PRA asserts government ownership and control of “presidential records,” as defined in the statute, and requires the archivist to take possession of these records when a president leaves office, to preserve them, and to ensure public access. There are important exceptions—in particular, for qualifying materials designated by a lame-duck president to be held confidential for 12 years after he leaves office. These materials include “confidential communications requesting or submitting advice, between the president and the president’s advisers, or between such advisers.”

The law also directs presidents to “assure that the activities, deliberations, decisions, and policies” reflecting the execution of their office are “adequately documented.” Once created, these records must be preserved and managed, or disposed of, in accordance with the statute. The PRA defines presidential records to include “documentary materials” created or received by the president or his immediate staff in carrying out activities related to his official duties. Presidential records don’t include records of a “purely private or nonpublic character” unrelated to the execution of the office.

Significantly, while the PRA vests the U.S. District Court for the District of Columbia with jurisdiction over any action brought by a former president claiming a violation of his rights or privileges under the act, it establishes no penalties, civil or criminal, for its violation. The statute also guarantees that “presidential records of a former president shall be available to such former president or the former president’s designated representative.”

Other federal statutes may permit the prosecution of people who improperly dispose of presidential records, which are now considered government property. The one of most interest to Mr. Trump’s foes appears to be 18 U.S.C. Section 2071(b), which imposes fines and up to three years’ imprisonment on anyone having custody of records deposited in a “public office” who “willfully and unlawfully” mishandles these records. It provides that on conviction, the defendant “shall forfeit his office and be disqualified from holding any office under the United States.”

But the Constitution forbids that result with respect to the presidency. Even assuming the government could prove beyond a reasonable doubt that Mr. Trump deliberately mishandled government documents knowing this to be a violation of federal statute—a difficult task, since the PRA itself guarantees his access to his presidential records and former presidents are generally entitled to receive classified information—a court couldn’t disqualify him from serving as president.

The Constitution establishes the qualifications for election to the presidency: Only natural-born American citizens over 35 who have been U.S. residents for at least 14 years may serve. The Constitution also provides the only mechanism whereby an otherwise qualified person may be disqualified from becoming president: This penalty can be imposed (by a separate vote of the Senate) on someone who has been impeached and convicted for high crimes and misdemeanors. The proposed application of Section 2071(b) to the presidency would create an additional qualification—the absence of a conviction under that statute—for serving as president. Congress has no power to do that.

In Powell v. McCormack (1969) and U.S. Term Limits Inc. v. Thornton (1995), the Supreme Court decided comparable questions involving the augmentation of constitutionally established qualifications to serve in Congress. In the former case, the House refused to seat a constitutionally qualified and duly elected member, Rep. Adam Clayton Powell Jr. of New York, because it concluded he had diverted House funds to his own use and falsified reports of foreign-currency expenditures. The justices ruled that Powell couldn’t be denied his seat on these grounds, as that would effectively add an extraconstitutional “qualification” for office. That, they concluded, would deprive the people of an opportunity to elect candidates of their choice, contrary to the Constitution’s structure. The court cited Federalist No. 60, in which Alexander Hamilton wrote: “The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.”

The high court reaffirmed that conclusion in Thornton, which struck down an Arkansas ballot measure imposing term limits on the state’s U.S. representatives and senators. The justices articulated as their “primary thesis” that “if the qualifications for Congress are fixed in the Constitution, then a state-passed measure with the avowed purpose of imposing indirectly such an additional qualification”—in this case, not having already served a specific number of terms—“violates the Constitution.”

Using Section 2071(b) to disqualify Mr. Trump (or anyone else) from serving as president is unsupportable under Powell and Thornton. Such a claim would be far weaker than the one the House made in Powell, as the constitution authorizes each congressional chamber to judge the “qualifications of its own members” but gives Congress no authority over presidential qualifications. The only constitutional means to disqualify a president for wrongdoing is through impeachment and conviction.

If preventing Mr. Trump from running in 2024 was the purpose of the Mar-a-Lago search, the government wasted its time and the taxpayers’ resources.

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.

Source: https://www.wsj.com/articles/trump-cant-be-disqualified-over-documents-fbi-mar-a-lago-presidential-records-act-constitution-impeachment-conviction-supreme-court-2024-11660159610