The special prosecutor focuses on then-President Trump’s motives—a critical legal error.

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

October 14, 2024, in the Wall Street Journal

Jack Smith made no concessions in his response to the Supreme Court’s July ruling in Trump v. U.S., which rejected the special counsel’s contention that he had unlimited authority to prosecute Donald Trump for alleged crimes that involved official presidential acts. Chief Justice John Roberts provided a framework for distinguishing official acts from private ones and for determining which official acts could be prosecuted.

In a 165-page brief filed with Judge Tanya Chutkan, who is presiding over the election-fraud case, Mr. Smith acknowledges only that Mr. Trump’s communications with Justice Department officials were official acts and can’t be prosecuted—as the justices expressly said. But Mr. Smith characterizes then-President Trump’s official conversations with the vice president as outside the zone of immunity and his communications with state officials and the public not as official acts of the president but private acts of a candidate. In so doing he gives short shrift to the separation-of-powers justification for immunity.

Trump v. U.S. extended presidential immunity, which the court recognized in Nixon v. Fitzgerald (1982), from civil lawsuits to criminal prosecutions. Like the immunity enjoyed by prosecutors, judges and members of Congress, the president’s immunity for official acts is predicated on separation of powers. Fitzgerald held that immunity is especially important for the president, who “occupies a unique position in the constitutional scheme” as head of a branch of government—an “easily identifiable target” for legal attacks that could thwart the effective functioning of the office.

A president’s immunity from criminal prosecution is absolute when he exercises his core constitutional powers, such as recognizing foreign governments, nominating and firing executive officers, commanding the military, issuing pardons, faithfully executing the laws—and, as in this case, directing an executive-branch department.

Other acts within the “outer perimeter” of the president’s responsibility, the court explained, have “at least” a presumptive immunity. The presumption is rebuttable only if the prosecutor can prove that the acts are “manifestly or palpably beyond” the president’s authority, such that, as Fitzgerald put it, imposing liability would “pose no dangers of intrusion on the authority and functions of the Executive Branch.”

Mr. Smith’s brief falls short of making that case. His primary argument is that the “throughline” of Mr. Trump’s postelection efforts “was deceit,” because the president made “knowingly false claims of election fraud.”

The prosecutor’s focus on Mr. Trump’s motive is a critical legal error. The Trump decision reiterated Fitzgerald’s holding that in distinguishing between official and private acts, “courts may not inquire into the President’s motives.” Allowing such an inquiry would vitiate the president’s immunity, since virtually every presidential decision is based in part on political considerations, and suits against a president would always allege improper motives.

The only relevant questions, therefore, are whether a president’s acts, objectively viewed, are official or unofficial, and if they are official, whether they can be prosecuted without intruding on the president’s legitimate authority. Mr. Smith asserts that when a president seeks “to influence his Vice President” about electoral certification, it is outside the zone of immunity because the vice president exercises this power as president of the Senate, and the “Executive Branch plays no role.” He deems Mr. Trump’s interactions with state officials private because the president has “no official role” in the Electoral College process or enforcing state election law. And he asserts that Mr. Trump made various public statements in his capacity as a candidate, not as president.

The court has rejected Mr. Smith’s cramped view of presidential authority on several occasions. In his concurrence in Youngstown Sheet & Tube v. Sawyer (1952), Justice Felix Frankfurter observed that executive power extends beyond statutes and express constitutional provisions to include the “gloss” of longstanding presidential practice. In Dames & Moore v. Regan (1981), a majority embraced Frankfurter’s view.

The Trump decision also accepted Frankfurter’s view, observing that “some Presidential conduct—for example, speaking to and on behalf of the American people—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.” The president is “expected to comment on those matters of public concern” and in so doing so, he may pressure others—outside the executive branch—to behave in certain ways. In McDonnell v. U.S. (2016), the court held that an “official act” under the federal bribery statute includes using one’s office “to exert pressure on another official to perform an official act.”

Mr. Smith asserts that Mr. Trump’s legal efforts in his “capacity as a candidate” to challenge certain state elections prove that his conversations with officials and statements to the public were private actions. But that gets it backward. Under Trump, the burden is on the prosecutor to show that his allegations don’t infringe on the president’s official duties, not on the president to show that his exercise of those duties is untainted by private considerations.

Chief Justice Roberts writes in Trump that immunity is a “farsighted” constitutional doctrine designed to prevent constant legal harassment from enfeebling the presidency. Without immunity, the threat of civil and criminal liability would create, as George Washington put it in his Farewell Address, the “alternate domination of one faction over another, sharpened by the spirit of revenge” with every new administration.

Democrats profess to be worried that Mr. Trump, if returned to office, will use the justice system to seek retribution against his political opponents. They should stop and consider that presidential immunity also restrains that “spirit of revenge” if Mr. Trump wins in November.

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. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/what-jack-smith-gets-wrong-about-immunity-law-election-presidential-power-f4f57ead

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

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