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

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

May 30, 2024, in the Wall Street Journal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Source: https://www.wsj.com/articles/israel-hamas-and-the-law-of-war-31362893

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

Nov. 17, 2023, in the Wall Street Journal

If you look at the Supreme Court’s new Code of Conduct as an attempt to appease the justices’ antagonists in Congress and the media, it is a total and predictable failure. But in substance it is an important rebuke to those critics. “Congress must continue its efforts to hold the judiciary accountable,” Sen. Majority Leader Chuck Schumer tweeted in response.

The code and the justices’ accompanying commentary make clear that Congress has no such authority. The justices describe the court’s unique role in America’s constitutional system and affirm several important principles:

• The Supreme Court isn’t merely a part of the judiciary; it is its head. The Constitution vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress can no more subject the court to lower-court supervision, as some lawmakers have urged, than it can authorize a federal officer to review and reverse presidential decisions.

Moreover, aside from the impeachment power, the Constitution gives neither Congress nor the court as a whole disciplinary power over individual justices. The only substantive authority Congress has over the court’s judicial function is the power to legislate exceptions and regulations of its appellate jurisdiction.

• The decision to recuse oneself from a case is an “inherently judicial function.” As such, it is at the core of the court’s constitutional function and can’t be regulated in any manner by the political branches.

• The justices have a “duty to sit.” That means it’s improper for a justice to recuse himself from a case merely for convenience or to avoid controversy. As the justices state in the commentary, this duty is stronger for them than for lower-court judges: “The absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.”

• The “rule of necessity” requires the justices to decide a case if most or all of them would ordinarily be disqualified under the code. Recusal requirements must give way when following them would deny the litigants a judicial determination to which they are otherwise entitled.

It’s significant that all nine justices signed the document. After Justice Samuel Alito told the Journal in a July interview that Congress lacks the authority to regulate the high court, legal pundits speculated that other justices might disagree. Now all the court’s members have made clear that they share the same basic understanding of their constitutional role and authority. Any justice who disagreed could have dissented, so the code and commentary carry the same institutional weight as a unanimous decision.

The code makes plain that the justices recognize the importance of ethical constraints, but it also maintains the court’s independence, including the independence of its individual members, from recent efforts by Congress to aggrandize itself at the court’s expense.

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-justices-ethics-code-rebukes-their-critics-f147db25

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 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 Lee A. Casey

20 February 2023 in the Wall Street Journal

Headlines last week claimed that the Congressional Budget Office had warned the U.S. “could default on its debt” as early as July if Congress didn’t raise the statutory debt limit. What the CBO director actually said was that “the government would have to delay making payments for some activities, default on its debt obligations, or both.” In reality, the U.S. can’t default on its debt.

Section 4 of the 14th Amendment is unequivocal on that point: “The validity of the public debt of the United States, authorized by law, . . . shall not be questioned.” This provision was adopted to ensure that the federal debts incurred to fight the Civil War couldn’t be dishonored by a Congress that included members from the former Confederate states.

The Public Debt Clause isn’t limited to Civil War debts. As the Supreme Court held in Perry v. U.S. (1935), it covers all sovereign federal debt, past, present and future. The case resulted from Congress’s decision during the Great Depression to begin paying federal bonds in currency, including those that promised payment in gold. Bondholders brought an action in the Court of Claims demanding payment in currency equal to the current gold value of the notes. The justices concluded that Congress had violated the Public Debt Clause and that its reference to “the validity of the public debt” was broad enough that it “embraces whatever concerns the integrity of the public obligations.”

That means the federal government can’t legally default. The Constitution commands that creditors be paid. If they aren’t, they can sue for relief, and the government will lose and pay up.

Those who warn of default confuse debt payments with other spending obligations. “A failure on the part of the United States to meet any obligation, whether it’s to debt holders, to members of our military or to Social Security recipients, is effectively a default,” Treasury Secretary Janet Yellen said in January.

That’s nonsense. Authorized and even appropriated spending isn’t “the public debt.” For constitutional purposes, promised benefits from Social Security, Medicare and other entitlements aren’t even property, as the Supreme Court held in Flemming v. Nestor (1960), and Congress has as much authority to reduce them as to increase them. When lawmakers were drafting the 14th Amendment, they revised Section 4’s language to replace the term “obligations” with “debts.” If the Treasury ran out of money, the constitutional obligation to pay bondholders would trump all statutory obligations to spend.

Ms. Yellen also said that “Treasury’s systems have all been built to pay all of our bills when they’re due and on time, and not to prioritize one form of spending over another.” But as the Journal has reported, department officials conceded in 2011 that the government’s fiscal machinery certainly could prioritize payments to bondholders, and the Federal Reserve prepared for such a contingency. There’s no question enough money would be available: The government collects roughly $450 billion a month in tax revenue, more than enough to cover the $55 billion or so in monthly debt service.

These basic facts should inform decisions by credit-rating agencies in establishing the U.S. government’s creditworthiness. Those agencies have traditionally acted favorably when heavily indebted countries have significantly cut public spending rather than default on their debt.

Like Ulysses binding himself to the mast, the Public Debt Clause ties the government’s hands in a way that ultimately serves its interests. Around the world, public defaults are ubiquitous. Since 1960, 147 governments, including some Western democracies, have defaulted—many repeatedly—on their sovereign debt. The U.S. isn’t among them, in large part because of the Constitution’s restriction, buttressed by the rule of law. That’s why the nation is able to borrow so easily, and so much, at such favorable rates. If the Biden administration and other default doomsayers convince the world that U.S. debt isn’t secure, they will drive up the cost of borrowing—at least until the courts set things straight.

Rather than issue baseless warnings of default, the Treasury should tout the Public Debt Clause as a reason why investments in U.S. bonds are rock solid and entail no meaningful risk of default. That could help secure more-favorable credit terms for Treasury instruments than those paid by other Western countries. The strategy is well worth pursuing, given the sharp increase in rates at which Treasury is currently selling its benchmark 10-year notes—from 2% to 3.6% over a single year—resulting in a major escalation in U.S. debt-servicing obligations.

The real risk we face is out-of-control federal spending, not default. But spending cuts and tax hikes are politically unpopular. That leaves borrowing, which explains the recurring tumult over the debt ceiling. How the U.S. covers its spending tab is a debate worth having, as is whether that tab should be so high. Fear-mongering about default is a way to avoid these debates and avoid confronting the hard choices we face as a result of decades’ worth of overspending.

Those who vote against raising the debt ceiling will take a political risk, perhaps a substantial one, as payments many Americans reasonably anticipate may not arrive. Whether to proceed with this strategy if the Biden administration persists in refusing to accept any deal on future federal spending is a difficult question. But it should be debated honestly, unclouded by specious warnings of default.

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/default-on-u-s-debt-is-impossible-deficit-treasury-cbo-janet-yellen-supreme-court-constitution-public-debt-clause-federal-reserve-328dafe5