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

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

April 24, 2024, in the Wall Street Journal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 29, 2024, in the Wall Street Journal

Many observers thought the Supreme Court would decline to consider Donald Trump’s claim that presidential immunity shields him from prosecution for his conduct on Jan. 6, 2021. But on Wednesday the justices announced that they will hear the former president’s case in April. Mr. Trump could eventually face a trial on those charges, but the justices had little choice but to take up this question because the lower court’s ruling was so sweeping and dangerous.

Mr. Trump claims that his allegedly criminal actions were “official acts” taken as president. The U.S. Circuit Court of Appeals for the District of Columbia held that it didn’t matter if they were—that no president is entitled to immunity from “generally applicable criminal laws.” That decision violates the separation of powers, threatens the independence and vigor of the presidency, and is inconsistent with Supreme Court precedent.

The justices are unlikely to decide whether Mr. Trump’s actions were in fact “official acts.” Instead, they will consider the key legal question, “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

That’s a novel question, but in Nixon v. Fitzgerald (1982), the high court held that a president enjoys absolute immunity from civil suits predicated on his “official acts,” even if they fall foul of “federal laws of general applicability.” Justice Lewis Powell wrote that such immunity is a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Such 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.”

Mr. Trump maintains that he believed the 2020 presidential election was riddled with fraud and that his conduct on Jan. 6 was fully consistent with his constitutional obligations to “take care that the laws be faithfully executed.” Whatever the merits of that claim, it raises weighty questions of law and fact that the D.C. Circuit was wrong to brush aside—most centrally, that the president’s power is granted by the Constitution, which, as the supreme law of the land, overrides ordinary, “generally applicable” statutes.

The D.C. Circuit decision opened the door to all manner of constitutional crises. A former president could be prosecuted for ordering a military attack on an American affiliated with a foreign terrorist organization, even though such an order is clearly within his authority as commander in chief. Aggressive prosecutors motivated by ideology or partisanship could use capaciously worded criminal statutes—including those regarding mail or wire fraud, racketeering, false statements and misrepresentations—to challenge almost any presidential action, including those related to national security activities.

As with civil suits, it isn’t enough to say that the former president would have the opportunity to mount a defense in court. The mere possibility of personal prosecution for official actions would chill future presidential decisions. The D.C. Circuit casually disregards this danger, asserting simply that the “public interest” in prosecuting crimes is weightier than the risk of chilling impartial and fearless presidential action. It asserts that a president wouldn’t be “unduly cowed” by the prospect of criminal liability, “any more than a juror” or “executive aide” would be. That analogy is inapt because the president’s responsibilities are much weightier than those of jurors or aides. He alone is the singular head of a constitutional branch of government. As the justices recognized in Nixon v. Fitzgerald, the “greatest public interest” isn’t in enforcing ordinary statutes against the president. Immunity is necessary to ensure he has “the maximum ability to deal fearlessly and impartially with the duties of his office.”

The D.C. Circuit dismissed as “slight” the risk that former presidents will be politically targeted because prosecutors “have ethical obligations not to initiate unfounded prosecutions” and there are “additional safeguards in place,” including the requirement of seeking an indictment from a grand jury. These arguments border on frivolous. Not all prosecutors are ethical, and even those who are may be overzealous. Many cases have featured prosecutorial misconduct or abuse. And the justices have surely heard the saying that a prosecutor can indict a ham sandwich. Lawyers in civil cases are also bound by ethical obligations, but that didn’t vitiate the case for presidential immunity in 1982.

Jack Smith, the special counsel in the Trump cases, has asserted that federal prosecutors make decisions without regard to politics—but his conduct in this case belies that claim. His chief argument against Mr. Trump’s petition for a stay of the D.C. Circuit’s decision denying his immunity was that such a delay would cause “serious harm to the government—and to the public” because the case “presents a fundamental question at the heart of our democracy.” Many Supreme Court cases raise such questions, and Mr. Smith avoids saying what distinguishes this one. The obvious answer is the election timetable.

Mr. Smith’s demand for fast-tracking the Supreme Court’s consideration thus contradicts the D.C. Circuit’s suppositions about prosecutorial ethical probity. Trying Mr. Trump, the all-but-certain Republican nominee for president, before the election is inconsistent with Section 9-27.260 of the Justice Department’s Justice Manual, which makes clear that prosecutors “may never make a decision regarding . . . prosecution or select the timing [thereof] . . . for the purpose or affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

The question of presidential immunity is an important one for our constitutional democracy of separated government powers, and the D.C. Circuit made a grievous error in disposing of it so casually. The justices were right to halt the proceedings until they can give the issue the careful consideration it deserves.

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

Source: https://www.wsj.com/articles/why-the-justices-had-to-hear-trumps-case-presidential-immunity-125803c6

Applying the Insurrection Clause to the presidency would have given rogue states too much power.

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

February 7, 2024, in the Wall Street Journal

The case of Trump v. Anderson, in which Donald Trump asks the Supreme Court to reverse a ruling that bars him from Colorado’s presidential ballot, raises many complicated legal and factual questions. The justices should ignore them and decide a simple one: Does Section 3 of the 14th Amendment, which disqualifies certain former officeholders who have “engaged in insurrection,” apply to the presidency?

As Michael Mukasey has argued in these pages, the answer is no. Those who are covered by the Insurrection Clause are specifically disqualified from serving as members of Congress or the Electoral College—not as president or vice president. They are also barred from state office and from “any office, civil or military, under the United States.” But “any office” refers to appointive posts such as judges, generals and cabinet secretaries, and “officers of the United States” are appointed, not elected.

This raises an obvious question: Why would the authors of the 14th Amendment exclude the presidency? For two compelling and practical reasons, which reinforce Section 3’s plain meaning.

First, by the time the amendment was ratified in 1868, the states had largely adopted a system whereby presidential electors, instead of being appointed by state legislatures, were chosen by popular vote after committing to a particular candidate. If no former Confederates (or more modern insurrectionists) could stand for election as presidential electors, there would be little chance of an insurrectionist president. (As Mr. Mukasey also observed, if the president were covered, there would be no reason to cover presidential electors, who wouldn’t be able to elect an insurrectionist if they wanted to.)

Second, there was no way to cover the presidency without violating the Constitution’s established federalism principles, which require states to act uniformly when dealing with federal laws and institutions. These principles are at the root of several constitutional provisions, including the equal representation of states in the Senate, the Supremacy Clause and the Full Faith and Credit Clause. These provisions are indispensable in making the federal republic functional.

Applying Section 3’s disqualification to the presidency would create exactly the uniformity problem the Supreme Court now faces—different states reaching different conclusions about what is and isn’t an insurrection in the context of a national election.

There is ample evidence that the 14th Amendment’s drafters paid great attention to federalism concerns. This is particularly true regarding the amendment’s first two sections, which dramatically reshaped the relationship between U.S. citizens and the federal and state governments by requiring states to respect federal constitutional rights. As legal scholar Kurt T. Lash recounted in “Federalism and the Original Fourteenth Amendment,” a 2019 article, radical Republicans, who favored stronger federal power, clashed with moderate Republicans determined to preserve states’ rights under the Constitution’s original Madisonian federalism architecture. It is implausible that they would have fought hard to protect federalism while permitting each state to determine presidential disqualification for itself.

In U.S. Term Limits v. Thornton (1995), the Supreme Court held that states couldn’t impose their own qualifications on members of Congress. Justice John Paul Stevens’s majority opinion discussed at length how elections to the national legislature involved the people of the U.S. rather than citizens of each state, requiring that qualifications be nationally uniform. This logic is even more compelling when it comes to the president, who is elected by the entire nation. As Alexander Hamilton wrote in Federalist No. 68, the Framers made the “appointment of the president” depend “in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment”—members of the Electoral College.

The Constitution authorizes state legislatures to determine how presidential electors are selected—and even to appoint them directly, as Colorado did in 1876—and the qualifications for serving as president are stated in the constitutional text. There is no indication that the states may interpret these for themselves. Stevens wrote that while states can adopt “election procedures” (his emphasis) that govern access to the ballot—such as signature requirements for independent candidates or “sore loser” provisions that bar a third-party run by a former candidate for a major-party nomination—they can’t set or revise qualifications for federal office.

Some of Mr. Trump’s opponents have pointed hopefully to Hassan v. Colorado, a 2012 decision of the 10th U.S. Circuit Court of Appeals in which then-Judge Neil Gorsuch upheld the state’s authority to bar from the ballot a naturalized citizen who wanted to run for president. Abdul Karim Hassan asserted an eccentric theory that the 14th Amendment vitiated the requirement that the president be a natural-born citizen. Judge Gorsuch ruled that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office”—not that state officials or judges could decide what the qualifications for federal office are.

The meaning of “natural-born citizen” is open to dispute in certain unusual cases involving would-be candidates born overseas to American parents or in unincorporated U.S. territories (where the Constitution doesn’t fully apply). If such a dispute arose and states responded to it differently, the federal courts would have to intervene quickly to impose uniformity. To avoid precisely that sort of situation, the drafters of the 14th Amendment left the presidency out of Section 3.

A Supreme Court decision to that effect would be consistent with the doctrine that judges should avoid deciding constitutional issues unnecessarily. Was the riot of Jan. 6, 2021, an “insurrection”? If so, what does it mean to have “engaged” in it? Does disqualifying someone from office require an act of Congress or a criminal conviction? These questions may be pertinent in future cases, but not in Trump v. Anderson.

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/colorado-cant-disqualify-trump-from-2024-election-c12a4bc9

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

August 2, 2023, in the Wall Street Journal

The latest indictment of Donald Trump takes the courts and the country into uncharted territory. Special counsel Jack Smith and a District of Columbia grand jury accuse Mr. Trump of conspiring to steal the 2020 presidential election and charge him, among other things, with defrauding the U.S. But Mr. Trump’s status as president when the alleged crimes took place raises questions about whether he can be successfully prosecuted—and, if he is, troubling implications for future presidents.

The president is immune from civil and criminal liability for actions taken in the execution of the office. That immunity is absolute, like the immunity accorded to judges and prosecutors. Courts have allowed only that the president may be subject to subpoena in certain circumstances that don’t impose great burdens on his ability to function as chief executive.

Former presidents can be held liable for personal actions while in office, but only those that fall beyond “the outer perimeter of his official responsibility.” In Nixon v. Fitzgerald (1982), the Supreme Court held that Richard Nixon was immune from a civil damages action in which a former federal employee claimed he was illegally fired as punishment for revealing Pentagon cost overruns. The justices reasoned that absolute immunity for official acts was “a functionally mandated incident of the President’s unique office,” since “personal vulnerability” to suit could warp a president’s decision-making and deter him from performing his duties “fearlessly and impartially.” That’s obviously even truer of criminal liability, so the court can be expected to extend presidential immunity accordingly. (An exception is offenses for which a former president has been impeached and convicted, the prosecution of which the Constitution explicitly authorizes.)

The critical legal question, then, is whether Mr. Trump’s alleged offenses fall within the “outer perimeter” of his responsibilities as president. The courts have only started to grapple with this issue. In Thompson v. Trump (2022), Judge Amit Mehta of the U.S. District Court for the District of Columbia held that Mr. Trump’s contacts with local election officials after the 2020 election weren’t official acts. That case, which involved a civil action against Mr. Trump by plaintiffs alleging injuries suffered during the Jan. 6, 2021, riots, could be reversed by the D.C. Circuit or the Supreme Court.

Whatever the higher courts make of Judge Mehta’s conclusion, he made a key analytical error in reaching it. He fell into the trap of relying on Mr. Trump’s motivation, in the guise of his “purpose,” which was to preserve his “incumbency.” But the justices in Nixon made clear that the determination of whether a president was acting in his official capacity couldn’t be based on either motivation or the legality of his actions, as that would “subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.” The court also noted that the president’s discretionary authority under the Constitution is so broad that “it would be difficult to determine which of the President’s innumerable ‘functions’ encompassed a particular action.”

Mr. Smith fell into the same trap. His focus vis-à-vis Mr. Trump is very much on whether he honestly believed the election had been stolen from him. The proper question is whether the actions he allegedly took after the 2020 election fall objectively within “the outer perimeter of his official responsibility.”

The strongest argument that they don’t is that supervision of state election officials, the selection of presidential electors, and the vice president’s role in counting those votes aren’t ordinarily presidential responsibilities. But it isn’t so clear that, in a case where voting irregularities were reported in the media from numerous critical states—even if incorrectly—the president has no official role in investigating and addressing those claims.

The selection of presidential electors is in part a matter of federal law. The Constitution vests this task in the state legislatures under the Electors Clause, which governs presidential elections. Because the states had no such authority before the Constitution, this critical power is substantially federal in character.

In Moore v. Harper (2023), the Supreme Court recognized that a parallel constitutional provision, the Elections Clause—which divides authority for setting the rules of congressional elections between the state legislatures and Congress—was sufficiently federal in nature to justify the high court’s review of state court decisions involving these rules, even though it ordinarily has no authority to scrutinize a state court’s interpretation of state laws.

It was Mr. Trump’s constitutional duty to “take care that the laws be faithfully executed.” He had no power to direct state officials’ actions, but urging them to ensure the integrity of federal elections could fall within the outer bounds of his responsibility. He has no authority to direct the vice president’s discharge of his constitutional duties as Senate president, but his exhorting or pleading with the vice president to take certain actions is arguably within the bounds of his authority. Presidents do it routinely when the vice president is called on to cast a deciding Senate vote.

Judge Mehta adopted an unduly crabbed legal test for what constitutes an official presidential action. He asserted that “a sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College.” But the Take Care Clause, which is a key component of presidential duties, is broadly framed to include ensuring compliance with all federal laws, including the Constitution. Moreover, the clause is only a subset of the power conveyed to the president by the Vesting Clause, which provides that the “executive power shall be vested in a President of the United States.”

Pursuant to that broad authority, a president may communicate with, cajole and even browbeat officials over whom he has no supervisory authority, urging them to pursue policies that he believes are in the national interest. Many presidents take such actions; both Mr. Trump and President Biden, for instance, pressed states to follow federal Covid-19 recommendations. Wise or not, those were undoubtedly official actions.

The indictment of Mr. Trump means that the Supreme Court will almost certainly be called on to determine the scope of a former president’s immunity and whether Mr. Trump’s actions after the 2020 election fell within the outer reaches of his official responsibilities.

Mr. Trump’s conduct may be hard to defend, but the stakes here are far greater than his fate. One can easily envision a future president using military force, sending weapons to another country, engaging in a major diplomatic endeavor or authorizing a prosecution based on what opponents believe—perhaps rightly—are self-serving lies. Under Mr. Smith’s theory, he could be charged with defrauding the United States.

The specter of such prosecutions would cripple the ability of all future presidents to perform their constitutional responsibilities vigorously and fearlessly. That’s why we have presidential immunity in the first place.

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/this-trump-indictment-imperils-the-presidency-charges-crime-election-race-2024-307a4021

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 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}