Author: Henry Wray

President Biden’s decision to drop out of the 2024 election, while hardly surprising, certainly adds drama to the already dramatic twists and turns in the election–particularly of late. While it remains to be seen how it plays out, a few things seem fairly obvious.

First, Biden had no real choice but to quit the race. Democratic politicians and their media allies virtually destroyed his chances by their escalating expressions of doubt over his capacity to win reelection and serve a second term. It had reached the point where the growing perception they fed that he was unelectabe became a self-fulfilling reality. With friends like these, he was almost sure to lose.

Second, their hypocrisy in now praising Biden for his “selflessness” is breathtaking. These are the same folks who have been working intensely for weeks, overtly or covertly, to undermine his viability as a candidate and make it almost impossible for him to continue effectively. Many among them were also surely aware of his limitations for some time, but willing enough to cover them up before his debate performance made that no longer possible.

Third, it’s hard to believe that Democrats have either the time or the inclination to mount a serious, substantive contest over their presidential nomination at this late stage and after all their internal angst and dissension over Biden. Many are already coalescing behind Kamala Harris. If they do go through some sort of process other than selecting her by acclamation, it will probably be mainly window-dressing. What credible Democratic rival, particularly anyone looking to the future, would want to risk mounting a forceful, potentially divisive, and probably long-shot challenge to her at this point? Any real competition will most likely be limited to the nominee for vice president, where a couple of swing state governors (Whitmer, Shapiro) might give Democrats a much needed boost.

Last but not least, Trump’s malignant and utterly graceless statement on Biden dropping out refutes once again any fleeting notion that he has somehow taken on a less toxic persona.

In Trump v. United States, the Supreme Court held that presidents have broad immunity from criminal prosecution for acts involving their official functions. Notably, the six conservative justices in the majority abandoned the originalist and textualist interpretive principles they usually claim to embrace. Instead, they essentially invented presidential criminal immunity in a manner reminiscent of decisions from the freewheeling Warren Court era.

Nothing in the Constitution’s text grants criminal immunity to presidents; on the contrary, the most relevant constitutional provisions strongly suggest that there is no such immunity. History and tradition, albeit limited, likewise support the conclusion that presidents do not enjoy immunity from criminal prosecution.^[1]See here and below for more detail on these points.

The Court’s opinion rejects these specific points out of hand. It reasons more generally that the nature of presidential power under the Constitution and separation of powers principles require that presidents be accorded sweeping immunity from criminal prosecution for all their official actions. Such immunity is “absolute” regarding a president’s “core” constitutional functions; all remaining presidential functions are entitled either to absolute or “presumptive” immunity.  

The Court holds that the president’s exercise of core powers is wholly beyond the reach of Congress, including the criminal laws it enacts. Regarding other presidential powers, it says immunity is rooted in the need to ensure that the president is “energetic,” “vigorous,” and not “unduly cautious.”^[2]Slip op. at 14. The presumption of immunity can be overcome only by a showing that prosecuting a particular presidential act “would pose no [i.e., zero] ‘dangers of intrusion on the authority and functions of the Executive Branch.’”^[3]Id. (emphasis added).

In arriving at these conclusions, the Court relies mainly on prior decisions dealing with presidential privileges and immunities in other contexts. It leans heavily on a 1982 decision, Nixon v. Fitzgerald, which held that presidents enjoy absolute immunity from civil liability for all actions within the outer perimeter of their duties. However, this 5-4 decision likewise rests on a shaky foundation of policies the majority justices deduced from the structure and general provisions of the Constitution rather than anything dealing specifically with presidential immunity. The Fitzgerald opinion also put some distance between its holding on civil immunity and potential criminal immunity, observing that “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”^[4]457 U.S. at 754, n.37.

As noted above, the Court glosses over or ignores multiple specific indications that the Constitution does not grant presidents immunity from criminal prosecution. For starters, while the Constitution confers limited immunity on members of Congress, it says nothing about presidential immunity. On the contrary, Article I, section 3, clause 7 provides that persons convicted in an impeachment shall nevertheless remain “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” This language explicitly recognizes that officials subject to impeachment—which, of course, includes the president–are likewise subject to the criminal law.^[5]The Court rejected Trump’s absurd argument that this provision makes impeachment and conviction a prerequisite to criminal prosecution. Rather, it merely clarifies that an impeachment conviction … Continue reading

The Court’s only response is that this provision “does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular.”^[6]Slip op. at 38 (emphasis in original). But it does clearly indicate just that. It applies by its terms to any official who has been impeached and convicted on any grounds. Obviously, presidents are subject to impeachment and conviction on grounds relating to their official acts. Indeed, impeachments are typically grounded on official misconduct rather than private acts.

The Court asserts that historical evidence concerning presidential criminal immunity is “fragmentary” and “unhelpful.” It’s not surprising that the history is sparse since the framers of the Constitution gave no serious thought to immunizing the president. Having recently won independence from the British Crown, they had no interest in creating a chief executive with king-like attributes. Alexander Hamilton, a leading advocate for a strong president, affirmed in the Federalist Papers Nos. 65, 69 and 77 that the president would be subject to criminal prosecution. In Federalist 69, Hamilton distinguished the president from the English king in this respect:

“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” 

By contrast, he observed, “[t]he person of the king of Great Britain is sacred and inviolable.”

Finally, the Court asserts, wrongly, that all our Nation’s past practice establishes regarding whether presidents can be prosecuted is “silence.” Issues concerning presidential criminal immunity did not arise until the Watergate scandal of the 1970’s. Since then, however, it has been widely and consistently assumed that presidents are subject to criminal prosecution. Among those sharing this assumption were former Presidents Nixon, Ford, and Clinton as well as Trump’s attorneys during his second impeachment trial along with many senators who voted to acquit him on the basis that criminal prosecution was the proper recourse for his misconduct.

The Justice Department’s Office of Legal Counsel (OLC), another zealous advocate for the presidency, also espoused this position. OLC maintains that a president cannot be prosecuted while in office, but it has long recognized that former presidents are subject to the criminal law for their conduct in office. For example, summarizing earlier opinions, a 2000 OLC memorandum observed:

“To be sure, as the Court has emphasized, ‘[n]o man in this country is so high that he is above the law.’ . . . [I]mmunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial. . . . A sitting President who engages in criminal behavior falling into the category of ‘high Crimes and Misdemeanors,’ U.S. Const, art. II, §4, is always subject to removal from office upon impeachment by the House and conviction by the Senate, and is thereafter subject to criminal prosecution.”

In sum, the Constitution’s text as well as all specifically relevant history and past practice that exists contradict the Court’s holding. But the Court had no persuasive response—in fact, little response at all—to any of this.

Unmoored from specific objective legal criteria, the Court’s opinion makes liberal use of policy arguments, many imported from Fitzgerald. It repeatedly stresses the need to ensure that the president is energetic, fearless, and not unduly cautious. It downplays the dissents’ concerns over presidential lack of accountability and potential abuses. It accuses the dissenters of “fear mongering on the basis of extreme hypotheticals” without specifically refuting any of them.^[7]Id. at 40. It counters with its own seemingly extreme but, according to the Court, “more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

The Court ridicules the dissenters’ assertion that it places the president “above the law.” However, if the president is not entirely above the law, he is very close to it. The combined effect of this decision and Fitzgerald is to grant presidents absolute or presumptive immunity from all civil and criminal liability for all their official acts. They remain fully subject to criminal law only for their wholly private actions, which was never at issue.

The Court leaves some room for the presumption of criminal immunity to be rebutted and remands the case to the trial court to initially sort it out. However, the Court’s comments on the Trump indictment and its other general observations indicate that it will be challenging to overcome the presumption. It may also be difficult to separate out a president’s private actions.

The Court starts by placing official discussions between a president and his attorney general in the core functions category of absolute immunity.^[8]Id. at 20, 37. This approach would seem potentially applicable to presidential discussions with a host of other government officials as well. The Court also holds that the president’s motivations may not be scrutinized and that the fact that an action is allegedly illegal does not make it unofficial. Finally, the Court seems to severely limit the use of evidence concerning a president’s official acts in a prosecution based on his unofficial conduct.^[9]This may effectively foreclose prosecutorial efforts to counter Trump’s far-fetched claims that he sincerely believed the 2020 election was stolen from him.

It’s hard to predict the legal and practical fallout from the Trump decision either as to Trump or looking farther into the future. Perhaps the dire consequences that critics anticipate will prove to be exaggerated. What is clear is that the Court eschewed textualism and originalism, which provide a straightforward answer in this case, in favor of a muddled decision that rests on a highly dubious legal foundation.^[10]There may well be circumstances in which the application of particular criminal laws to particular presidential acts raises legitimate constitutional issues. (See Justice Barrett’s concurrence.) … Continue reading Conservative justices accuse those who favor such loose interpretive methods of “making stuff up,” particularly when they announce constitutional rights and protections that are nowhere mentioned in the Constitution’s text or firmly grounded in history and tradition. Yet, that is exactly what the conservatives did here.

Many critics will insist that this decision is further evidence that the current Court is “illegitimate” or in the tank for Trump. A far more likely explanation is that the conservative justices have a sincerely-held, if excessive, philosophical bias in favor of presidential prerogatives.^[11]See, for example, this article by (then Judge) Kavanaugh.

First the good news: The absence of an audience and the fact that the moderators did not engage in debate with the debaters eliminated distractions and enabled the candidates to be themselves. The bad news, which permeated everything else, is that the candidates were indeed themselves.

Overall, the debate reinforced how degraded our national politics have become with a presidential contest featuring two highly unpopular candidates who, for different reasons, both appear unfit for the presidency. As the ever-acerbic Maureen Dowd put it, we face an electoral choice between “the ghastly” and “the ghostly.”

The primary, pervasive takeaway from the debate was that President Biden is significantly impaired. Based on his excruciating debate performance and prior incidents, it’s hard not to doubt his capacity to serve a second term. Few are buying the notion that he was the victim of a “cold” or just having a “bad night.” Instead, many prominent voices on the left now openly question his electability and fitness for office and are calling for him to drop out of the race. (This includes some who had previously downplayed concerns over his acuity.)  

The intense focus on Biden diverted attention from Trump’s own miserable performance. He hardly answered any of the moderators’ questions and spewed a torrent of exaggerations, misrepresentations, and outright lies. Some were so preposterous as to insult the intelligence of anyone listening. The notion that Trump “won” the debate, at least in any positive sense, is bizarre. At best, he was marginally less outrageous and obnoxious than in previous debates. Even this probably resulted more from the format (limiting his ability to interrupt) than any genuine improvement on his part.

Who knows exactly what will unfold in the aftermath of the debate. Clearly, however, the main consequence is to leave Democrats in a very difficult bind of their own making (surely those close to Biden have long known of his issues) and very little time to resolve it.

One option is to ride it out with Biden. Actually, this is the only option unless Biden can be persuaded to step aside. So far, there is no indication that he will; to the contrary, he seems to be pushing back hard.  Continuing with Biden is risky and likely to become more so. There were major concerns over Biden’s physical and mental fitness going into the debate and it strongly reinforced them. According to a post-debate poll, close to three-quarters of registered voters think Biden lacks the mental capacity to be president and should not be running. Almost half of Democratic voters think he should not run.

These concerns will not simply blow over; people can’t unsee what they saw in the debate. Assurances of his fitness and rejection of any contrary suggestions  will no longer be taken at face value. Insulting and dismissing as “bedwetters” those who are skeptical based on what they observed first hand is likely to backfire; it will only engender resentment at being gaslighted. Biden will not get away with a stealth campaign; everything he says and does will be scrutinized for signs of possible decline. There will be intense pressure for him to submit to unscripted events such as media interviews and press conferences in order to prove himself. Assuming that his debate performance was not an aberration, these events don’t figure to go well.

The other option is for Democratic elder statesmen (Obama, Schumer, etc.) and close confidants to convince Biden—probably both Joe and Jill—that he should step aside for the good of the party, his legacy, and the country. However, this option carries its own complications. First among them is what to do about Kamala Harris. While she is as unpopular as Biden, dropping her would be a major challenge for identity-obsessed Democrats. Another problem is holding an open convention. This would invite chaos and warfare among the many Democratic factions that have up to now coalesced behind Biden.

One possible approach: (1) Convince Biden to withdraw and to urge his delegates to support a specific candidate, such as the governor of one of two key swing states—Whitmer of Michigan or Shapiro of Pennsylvania. (2) Convince Harris to remain on the ticket as vice presidential nominee.

Whatever strategy the Democrats adopt to address the mess they find themselves in following the debate, they need to act quickly and decisively.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 

The Supreme Court’s decision last week in Garland v. Cargill checked a lot of boxes in the ongoing ideological and political warfare over the Court:

• • It involved the always controversial subject of gun control, although it was not a Second Amendment case as such. (No one argued that banning bump stocks would be unconstitutional.)
  • It featured a 6-3 split with all Republican-appointed “conservative” justices in the majority and all Democratic “liberal” appointees in dissent.
  • It dealt with an issue that Congress tried but failed to resolve by clarifying legislation.
  • It specifically addressed an executive agency’s attempted resolution of the issue in the absence of congressional action.
  • The majority relied on a strict reading of the relevant statutory text, while the dissenters relied primarily on the purposes of the statute and consequences of the decision.
  • While faithful to the statutory language, the outcome was unappealing (to say the least) as a matter of policy and common sense.
  • The decision was praised by conservative media but condemned by media on the left.

By way of background, federal law generally bans private ownership of machine guns, defined as weapons that fire multiple rounds automatically and without reloading “by a single function of the trigger.” When added to a semiautomatic rifle, a bump stock enables it to fire rounds at rates approaching those of machine guns with minimal effort by the shooter. However, the trigger must be activated for each round to fire. Before 2017, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) did not consider a weapon equipped with a bump stock to be a machine gun.

In 2017, a shooter in Las Vegas used bump stock-equipped weapons to kill 58 people and wound another 500 or more. This horrific tragedy understandably prompted widespread outrage and calls for bump stocks to be banned. Many bills to do so were introduced in Congress but they stalled. At the urging of then President Trump, ATF subsequently reversed its prior position and determined that weapons with bump stocks were indeed machine guns. The Court overturned that ATF determination in Cargill.

Media reaction adhered to the usual ideological divide. For example, the Wall Street Journal extolled the Cargill decision as a “straightforward case of statutory interpretation” that corrected an ATF overreach that had “let Congress off the hook.” A Washington Post pundit countered: “Conservatives on the Supreme Court have decided that more Americans must die in mass shootings because they have a quibble over the word ‘function.’”  

The Cargill decision fits neither Manichean media characterization. The majority’s reading of the specific statutory language seems correct, although hardly straightforward. It takes much excruciatingly technical analysis to get there. On the other hand, the dissent seems correct in saying that a semiautomatic weapon with a bump stock is functionally equivalent to a machine gun and thus deserves the same ban.

In any event, it’s sheer demagoguery to accuse the Court of having blood on its hands for applying the law as written, no matter how technical it may be. The real culprit here is, of course, Congress for once again abdicating its responsibilities to the executive branch and the courts.

A brief concurrence by (the much maligned of late) Justice Alito captures the essence of the case:

“There can be little doubt that the Congress that enacted [the machine gun ban] would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.”

He concludes by in effect urging Congress to finish the task it abandoned in the wake of the 2017 Las Vegas tragedy.

The guilty verdict against Donald Trump in his New York “hush money” trial certainly conveys a sense of schadenfreude. Trump’s lifetime of playing fast and loose with the law may finally be catching up with him. No doubt some also view this conviction as a proxy for the more compelling federal criminal cases against him that are unlikely to go anywhere before the election and will surely die if he wins. And it’s gratifying to see Trump’s usual scorched earth strategy—contest everything; attack everyone; deny all, including the undeniable—crash and burn. Many experts think this strategy cost him any chance for at least a hung jury.

The case looks quite different, however, from a dispassionate legal perspective. The result may not be the utter travesty those on the right claim it is. Trump is no innocent victim; and the jury can’t be faulted for the guilty verdict it delivered under the facts, legal arguments, and judicial instructions presented to it. However, this was clearly a politically motivated, selective prosecution based on dubious charges. In essence, the prosecution sought to make a crime out of something that was not illegal. The case lived up (down?) to its widespread reputation as the weakest of the criminal cases against Trump.

Background

The key facts underlying the case are well known and almost surely accurate: Trump had a tryst with Stormy Daniels, instructed Michael Cohen to buy her silence in order to suppress politically damaging information about it, and business records were falsified to cover up the true nature of Cohen’s payments to Daniels as well as Trump’s subsequent reimbursement to Cohen for those payments. The evidence of Trump’s personal involvement in falsifying the records is less clear-cut but sufficient for the jury to find him complicit.

The genesis of the decision to bring this prosecution leaves no serious doubt that it was politically motivated. According to the New York Times, the Manhattan District Attorney’s office under former DA Cyrus Vance spent years “hunting” for a criminal case to bring against Trump, but even it passed on this one. Then Alvin Bragg, who campaigned for office as a Trump nemesis, was elected DA. A generally friendly profile of Bragg in the Times described him as “a man of unmistakable ambition who has hitched his aspirations to the pursuit of Donald J. Trump.” Bragg also initially resisted this case, which had become known as “the zombie case.” He revived it only after a prosecutor in his office resigned and went public with a letter severely criticizing Bragg for not being sufficiently aggressive in pursuing Trump.

The specific charges, described in more detail below, attest to the contrived and selective nature of the prosecution. New York prosecutors hardly ever use falsification of records as the sole grounds for a criminal case, as they did here. The election law provision prosecutors invoked to bolster their case is quite obscure and hardly ever used in any way at all. The Washington Post could find only three prosecutions under this provision over its entire history.

It would be more than naive to think that a case based on such unusual charges and with such a major investment of investigative and prosecutorial resources would have been pursued against anyone other than Trump.

Analysis of the Case

In addition to its political origins, the case rested on convoluted, highly imaginative legal theories that distorted what were relatively minor misdemeanor falsifications of records into ill-defined felonies. Remarkably, the prosecution’s theory of the case and core narrative had little to do with the actual charges.

Based on the above facts, prosecutors had solid grounds to charge Trump with misdemeanor falsification of business records under Article 175 of the New York Penal Law, which criminalizes making or causing to be made false entries in the business records of an enterprise with intent to defraud.^[1]The “intent to defraud” element is somewhat elusive. There were no apparent victims of fraud—certainly not voters since all the entries were made after the 2016 election. In fact, because the … Continue reading However, the statute of limitations for such misdemeanor charges expired long before prosecutors finally decided to resurrect the hush money case.

In order to overcome the statute of limitations problem and make the case appear more serious, prosecutors decided to charge Trump under another provision of Article 175^[2]Section 175.10, Falsifying business records in the first degree. that elevates falsification of records to a felony (with a longer limitations period) when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

Prosecutors did not actually charge Trump with any crime beyond falsifying records. They used the “another crime” theory only to enhance the records falsification counts. It took them a long time to decide, or at least disclose, what this other crime could be. They finally identified it as section 17-152 of the New York Election Law, which provides:

     “Conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

Prosecutors opened the trial by describing the case as “election fraud, pure and simple.” Their apparent theory was that Trump sought to interfere in the election and defraud voters by depriving them of knowledge about his affair with Daniels, which might materially affect their vote. One pundit observed at the end of the trial that the prosecutors “did a masterly job of telling a compelling story not of faulty bookkeeping but of criminal election interference.”

There are two basic problems with this. First, Trump was not prosecuted for criminal election interference; rather, he was charged only with bookkeeping violations. Second, the “hush money” payments to Daniels at the heart of the prosecution’s theory of election fraud or interference, while perhaps unsavory, were not illegal as such.

Section 17-152 prohibits conspiracies to influence an election by unlawful means. The alleged conspiracy here was to influence the 2016 presidential election (to promote Trump) by buying Stormy Daniels’ silence. But neither the objective (silencing Daniels) nor the means to achieve it (paying her off) was unlawful. Political candidates seek to limit negative information about themselves all the time, and paying to suppress information is commonplace in politics and other contexts.

In an effort to identify something illegal in this scheme that would convert it into a prohibited section 17-152 conspiracy, prosecutors came up with three alternative “unlawful means” of accomplishing it: (1) violations of the Federal Election Campaign Act (FECA), (2) falsification of other business records, and (3) violations of tax laws. Judge Merchan incorporated all three into his jury instructions.^[3]Pages 30-34.

This is a huge stretch. None of the three constitutes a “means” to achieve the alleged conspiracy’s objective of silencing Daniels under any reasonable interpretation of that term. All were at most peripheral to the scheme or consequences of it rather than ways to make it happen.

Injecting FECA into this case raises a number of legal issues.^[4]They include, among others, whether FECA can be used in state prosecutions, whether the Daniels payments constituted a campaign contribution under FECA, and whether Judge Merchan’s instructions and … Continue reading But putting those aside, any violations of FECA’s contribution limits or reporting requirements that may have occurred played no direct role–certainly not a determinative role–in buying Daniels’ silence. The same is true of any additional bookkeeping violations. They might be part of the effort to disguise the true nature of the Daniels payments, but they played no significant role in silencing her.

Possible tax violations are the most attenuated of all. Presumably,^[5]Judge Merchan’s jury instructions did not address what the alleged tax violations (or additional bookkeeping violations) were or how they could constitute an “unlawful means” under section … Continue reading the contention here is that the effort to disguise the purpose of Trump’s repayments to Cohen  resulted in improperly attributing income to Cohen and businesses expenses to Trump. But this has no bearing whatever on the Daniels payments.

In sum, FECA, bookkeeping, or tax violations cannot reasonably be substituted as an unlawful means of effecting an election-related conspiracy for purposes of section 17-152. Their relationship to the true means of carrying out the alleged conspiracy—the Daniels payments—ranges from tangential to nonexistent.    

Finally, it’s noteworthy that since Judge Merchan told the jury they need not agree on which of the three purported “unlawful means” satisfied section 17-152, what they decided on this issue is unknown. Therefore, if an appellate court rejects any one of the three as a viable unlawful means under section 17-152, that would seem to constitute automatic grounds for reversing Trump’s conviction.

Potential Impact of the Case

While the Trump verdict rests on a shaky legal foundation and appears vulnerable to reversal on appeal, its ultimate fate will not be determined for some time—almost certainly not until after the 2024 election. Its political effect on the 2024 election is also hard to foresee at this point. 

What can be predicted with great confidence is that this case, whatever its ultimate legal outcome and impact on the election, will further debase our already fractured politics. Given the political and legally problematic nature of the case, a large segment of the American public will never accept Trump’s conviction as legitimate.^[6]Even some of the few remaining Republicans who are not Trump acolytes strongly criticized the prosecution of this case. And if Trump loses in November, the legitimacy of the election will surely be widely challenged based on it.

The pushback figures to be even more severe than what followed the 2020 election. Unlike Trump’s phony stolen election claims then, there will be a plausible basis for such claims this time around. The outrage will surely intensify all the more in the (not unlikely) event that the conviction is overturned after the election.

It’s regrettable that the far more serious federal criminal case against Trump now pending in Washington did not precede this one to trial and verdict.^[7]There are several reasons for this, but  the Justice Department deserves primary blame due to its multi-year delay in initiating the case. A guilty verdict in that case would have been more credible than Trump’s New York conviction and surely would have carried greater weight with the general public, excluding MAGA die-hards.

 

Here’s a thought experiment for those obsessing over the Alito family’s flag-flying practices:

Assume that you are a judge on a court whose credibility and legitimacy are under constant political attack and whose members are accused of bias and partisan hackery at the slightest provocation.

Assume further that you understand the inverted American flag and the “Appeal to Heaven” flag to symbolize support for Trump’s “Stop the Steal” campaign and the January 6 attack on the Capitol—dubious as this assumption is.^[1]It’s far from clear that either the inverted American flag or the Appeal to Heaven flag were then, or are even now, widely known as pro-Trump symbols. Indeed, many commenters expressed surprise at … Continue reading

Given these assumptions, would you publicly display the two flags, thereby giving your critics a silver platter full of grist to use in their efforts to undermine you and your court?

Neither would Justice Alito.

The assertion by the Justice’s critics that the flag displays signaled pro-Trump bias requiring his recusal or even his resignation is illogical and implausible. A far more plausible explanation: Like most people, neither Justice Alito nor his wife^[2]According to the Washington Post, Mrs. Alito has no known history of support for Trump’s stolen election claims or the January 6 riot. associated the inverted flag with Trump at the time. Rather, as the Alitos insist, Mrs. Alito intended it only as a distress signal to a neighbor with whom she was feuding. This bizarre incident is surely not a good look for either Alito, but hardly the basis for an ethics scandal. Like most of us, the Alitos probably did not associate the Appeal to Heaven flag with Trump either. (No doubt most of the public had never heard of this flag.) Thus, there is no reason to think that their purpose in flying it, whatever it may have been, was to show allegiance to him.

The argument that these flag displays give rise to at least the appearance, if not the reality, of bias likewise presumes that the Alitos as well as the public associated the flags with Trump and his bogus election claims at the time the displays occurred. But the evidence for this connection is both thin and obscure. Indeed, there appears to be no evidence that the flags were seen or used in this way by anyone other than a few January 6 rioters and members of some fringe MAGA sects.

Importantly, the media is only now devoting major reporting to the notion that such a connection exists, long after the events in question took place. It’s telling in this regard that the flags did not create a stir at the time they were displayed—particularly so in the case of the inverted flag, which was displayed when the Stop the Steal campaign and the January 6 riot were fresh in the public mind. In fact, we now learn that the Washington Post investigated this episode at the time and determined it to be a nothingburger.^[3]The Post declined to report on the episode, finding no clear indication that it was rooted in politics. If the inverted flag was indeed widely understood at the time as a symbol of support for … Continue reading

 

If the Trump immunity case is decided using textualist and originalist interpretive methods,^[1]See here and here. the answer is straightforward. Nothing in the text of the Constitution or federal statutory law references presidential immunity from criminal prosecution for conduct while in office. Rather, the constitutional language closest on point indicates that there is no such immunity.

The Speech or Debate Clause (Article I, section 6, clause 1) shows that the framers of the Constitution knew how to confer immunity if they wanted to, and they did so explicitly. It provides that senators and representatives–

“shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

No comparable provision applies to the president. Even more to the point, Article I, section 3, clause 7 of the Constitution provides:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Emphasis supplied)

As even Trump’s lawyers concede, this provision affirms that former presidents can be subject to criminal prosecution.^[2]His lawyers make the ludicrous argument, which nobody seems to buy, that prosecution can occur only if an official has first been impeached and convicted. This provision also undercuts the notion that there is a difference for purposes of criminal prosecution between a president’s official and private acts. The post-impeachment criminal liability it refers to draws no such distinction but applies to all impeachable acts.    

Aside from the absence of textual support, other factors weigh against presidential criminal immunity. Historical context makes it wholly implausible that the framers had the slightest interest in exempting presidents from the criminal law. Having recently won freedom from the British crown, they firmly rejected the concept of the president as akin to a king who would be above the law.

Thankfully, we don’t have much tradition of potential criminal conduct by past presidents. What little there is indicates an understanding that presidents are subject to prosecution for their conduct in office. Former President Nixon accepted a pardon for any criminal liability relating to Watergate. President Clinton negotiated a plea deal to avoid prosecution arising from the Ken Starr investigation. Notably, President Trump’s defense attorneys in his second impeachment trial maintained that the proper remedy for any misconduct on his part was criminal prosecution—a position endorsed by many senators who voted for his acquittal.^[3]The opinion by the D.C. Circuit elaborates on these points.

In a 1982 decision, Nixon v. Fitzgerald, the Supreme Court held that presidents have absolute immunity from civil liability for conduct within the “outer perimeter” of their official duties. However, this 5-4 decision from the pre-textualist era is itself dubious and likewise lacks any foundation in the words of the Constitution. In any event, as the Nixon opinion recognized, different considerations apply to civil versus criminal immunity.

Consistent with the foregoing, lower court trial and appellate judges unanimously rejected Trump’s immunity claims. Nevertheless, the Supreme Court decided to take up the case. Based on the oral argument, it appears likely that the Court’s conservative justices will once again depart from the textualism/originalism they claim to favor and find at least some sort of presidential criminal immunity.

The oral argument featured a hypothetical-laden free for all that focused heavily on the policy pros and cons of presidential criminal immunity but gave scant attention to the Constitution’s text and history. Remarkably, the argument also largely avoided the facts of the Trump case.

Even the policy debate was somewhat bizarre. Conservative justices emphasized how the prospect of criminal liability could inhibit presidents in the performance of their functions. On the flip side, however, deterring unlawful behavior is of course a primary purpose of the criminal law. Some justices also expressed great concern over the potential danger that prosecutors could act in bad faith to go after a former president, but they ignored the massive evidence of Trump’s actual bad faith that underlies the criminal charges against him.

The justices also struggled to find a coherent, workable dividing line between official acts by a president that might be subject to immunity and acts outside the president’s official responsibilities, which most if not all justices seemed to agree would not be immunized. But isn’t criminal malfeasance in office by a president just as bad, indeed probably worse, than non-official criminal misconduct?

As noted at the outset, this is an excellent example of a case in which textualism and originalism provide a clear, legally sound resolution: There is no specific basis in the Constitution’s text and history to exempt presidents from the criminal laws that apply to all other citizens. Unfortunately, the Court may eschew this approach in favor of a muddled decision unmoored from the Constitution’s language.

Textualists and originalists accuse those who favor more free wheeling interpretive methods of “making stuff up.” They are particularly critical of announcing constitutional rights or protections that are nowhere mentioned in its text. Yet, the conservative justices seem poised to do just that in this case. If they do, it would have been better for the Court to stay out of the case altogether.     

 

     

The New York Times recently published a remarkable op-ed by Jesse Wegman captioned “The Crisis in Teaching Constitutional Law.” Wegman observes that Con Law professors traditionally operate under the premise that the Supreme Court is “a legitimate institution of governance,” the justices “care about getting the law right,” and they are more concerned with “upholding fundamental democratic principles” than “imposing a partisan agenda.” He then asserts that this premise “no longer holds today.”

Wegman claims that the Court, “under the pretense of practicing so-called originalism,” issues decisions that “virtually always [align] with the policy priorities of the modern Republican Party.” This, in turn, “has made it impossible for many professors to teach in the familiar way.”

He quotes one distraught Con Law professor who describes his job as “teaching students what the law isn’t.” Another was reduced to tears and felt “depleted.” She couldn’t see how “any of this makes sense” or why she should “respect it.” A third quit, saying that he “couldn’t stand up in front of the class and pretend the students should take the Court’s decisions seriously in terms of legal analysis.”

The arrogance of these professors (and Wegman) is striking. For them, the certainty that they are right and the Court is wrong apparently leaves no room for good faith debate or honest difference of opinion over the merits of its decisions and interpretive methods. Rather, the Court has simply ceased to be a legitimate institution in their eyes and its decisions no longer constitute valid sources of law.

A small group of disgruntled law professors does not make for a “crisis.”^[1]Wegman interviewed fewer than 20 professors. He admits most were politically liberal, as are most Con Law professors in the country. However, their sentiments may be shared by many others in the legal academy and among political and media influencers. The dean of one prominent law school shamefully endorsed the description of Supreme Court justices as “partisan hacks.” Recent years have witnessed relentless attacks from many corners on the legitimacy of the Court and the integrity of the justices. The Court and its members are portrayed as thoroughly politicized, intellectually dishonest, unethical, and wholly at odds with American public opinion.

These caricatures are as baseless as they are extreme. Objective data refute the notion that the Court operates like a conservative monolith producing radical decisions that are out of touch with the American public:

• • The Court’s decisions rarely break down into 6-3 splits between the conservative and liberal justices. There is far more consensus than one would think from media reports. (See here)
  • When there are split decisions, the six conservative justices diverge considerably more among themselves than do the three liberals. The liberals vote far more frequently as a block, particularly in politically charged cases. (See here)
  • Contrary to media assertions, the current Court is less likely than its predecessors to overrule precedents. (See here)
  • More often than not, the Court’s decisions in controversial cases align with public opinion. In fact, the Court is much more in tune with the American public as a whole than are the law professors. (See here and here)
  • No serious ethics violations or corrupt acts have been identified regarding any justice. Tireless media efforts to find them uncovered only some ambiguities and errors regarding financial disclosure reporting. (See here and here)

The accusation that the justices are mere politicians in robes is equally unfounded. Tellingly, former Justice Stephen Breyer, a leading liberal critic of the Court (and a less partisan one), firmly rejects the notion that the justices are political actors. He does not question their integrity or good faith, only their jurisprudence.

What really accounts for the almost visceral contempt the law professors (and others like Wegman) apparently hold for the Court is a change in its dominant judicial philosophy that, while at odds with their own, is perfectly legitimate and even salutary. 

Many of today’s law professors came of age in the heady era starting with the Warren Court and lasting for decades when judge-made law served as an important and reliable instrument for advancing liberal political causes. One law professor told Wegman that the professors who taught his generation “were all Warren court people” who “valorized” it. They regarded its members as “heroes who would save us all.”

The free-wheeling decisions by the justices who dominated the Court in those years consistently aligned with values the law professors share. However, many of those decisions were less than meticulous (to be charitable) when it came to their legal reasoning. They often glossed over statutory and constitutional language. For example, a 1965 decision found a constitutional right to privacy based on “penumbras, formed by emanations from” the Constitution. Another decision resorted to the text of a law in order to resolve ambiguities in its legislative history.

Spearheaded by former Justice Antonin Scalia, the Court in more recent years has shifted its focus to what the relevant law actually says and means. Far from being “pretenses,” textualism and originalism are conceptually sound interpretive methods and well within the mainstream of legal thought.^[2]See here and here. In fact, they have been endorsed in concept by liberal Justices Kagan and Jackson. Of course, it’s fair to critique when and how the Court applies these methods in specific cases. Indeed, the liberal justices frequently accuse their conservative colleagues of invoking them selectively. But properly used, textualism and originalism can provide a much-needed, more objective framework for deciding cases.

No doubt a major gap does exist between what many recent Supreme Court decisions say the law is and what overwhelmingly liberal law professors would prefer the law to be. However, the blame for any resulting teaching “crisis” lies with the law professors, not the Court.

Like anyone else, law professors are certainly free to disagree with the Court’s ideological turn and its embrace of textualism and originalism. However, it is irresponsible and unprofessional to disparage the Court to law students as a rogue institution whose decisions should not be respected. This is also a grave disservice to the students, most of whom will practice in the real world.

Professors who can no longer bring themselves to teach Con Law in a traditional, straightforward way should follow the lead of one of Wegman’s interviewees and find another line of work.

 

 

 

 

 

 

Retired Supreme Court Justice Stephen Breyer is making the media rounds^[1]See here, here, and here. to discuss his new book entitled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” As the title suggests, he rejects the Supreme Court’s use of “textualism” as a method of interpreting the law. He also criticizes its use of “originalism” to interpret the Constitution.

Notably, Justice Breyer wants no part of the vitriolic attacks on the Court that have become commonplace on the left—denying its “legitimacy” and dismissing the Justices as ethically challenged “political hacks.” He does not accuse them of acting in bad faith or from partisan political motives. Rather, his criticisms center on differences in jurisprudential philosophy.

The civil tone and substantive nature of Justice Breyer’s critiques are a welcome relief from the unhinged rants aimed at the Court these days. But is he right?

Certainly, the Court’s use of textualism and originalism is subject to legitimate criticism. It has rightly been accused of inconsistency and selectivity in invoking them.^[2]For example, the Court’s recent unanimous decision in Trump v. Anderson contradicts both the text and original meaning of section 3 of the Fourteenth Amendment. Conservative judges differ among themselves on what these concepts entail^[3] See, e.g., here. and how they apply in specific cases.^[4]In Bostock v. Clayton County, conservative Justices disagreed fiercely with each other over the right textualist interpretation of a statute. And as Justice Breyer notes, the Court’s use of history to discern the original meaning of constitutional provisions can be especially dicey.^[5]The Court’s decision in New York State Rifle & Pistol Assn v. Bruen is a much-criticized example.

Finally, these interpretive methodologies are hardly silver bullets. Few cases reaching the Supreme Court involve issues of statutory or constitutional interpretation that can easily be decided based on unambiguous text or readily apparent original meaning. (Of course, this limitation applies to any interpretive method; cases with obvious answers rarely come before the Court.)

Nevertheless, both textualism and originalism are conceptually sound, indeed compelling. Applied consistently and where feasible, both can instill much needed discipline into the business of judging.

Textualism focuses on the actual words of written law (statutory or constitutional). It does so for one obvious and fundamental reason: The language of a statute or constitutional provision embodies what the law is; as such, it provides the best evidence–indeed the only authoritative evidence—of what the law means. It follows that any credible interpretation of the law’s meaning must be anchored in its text.

Contrary to Justice Breyer’s caricature, textualism is far from a simplistic, wooden exercise that fetishizes grammar and punctuation. Interpreting statutory text is a complex, sophisticated task that involves a host of well-established and mainly logical, common-sense principles and presumptions (so-called “canons”).^[6]See here for a description of some of prominent canons. And while textualism centers on the language of the law, it is not confined to the four corners of the document. Other sources may be considered–e.g., context, relationship to other laws, even legislative history–if they are relevant and useful to discerning the meaning of the language.^[7]While some textualists (including former Justice Scalia) distain legislative history, most see a role for it in helping to resolve ambiguities in the text. Non-textualists have been known to do the … Continue reading

Originalism as a means of interpreting the Constitution is closely related to textualism. It holds that the Constitution should be construed in accordance with the meaning of its language as understood at the time it was adopted. The premise is that the meaning of the Constitution cannot change on its own without a corresponding change in its text via formal amendment.^[8]See here for background.

Justice Breyer favors an alternative jurisprudential approach that views the Constitution as a “living” document whose meaning can “evolve” without benefit of formal amendment to better reflect contemporary mores and values. After all, he observes, “half the country wasn’t represented in the political process that led to the document.”

It’s true that the United States and its body politic look much different now from when the Constitution was adopted. Some constitutional provisions may seem anachronistic and undemocratic—e.g., the electoral college, the composition of the Senate. However, they obviously can’t unilaterally evolve to mean something other than what they say.

Even as to less specific provisions, the notion that the Constitution’s meaning can evolve to better reflect contemporary values and mores doesn’t guarantee change for the better; change can also be regressive. Many of today’s political influencers, particularly in academia and elsewhere on the left, increasingly disfavor or at best downplay traditional concepts of freedom of speech, due process, and equal protection. Living constitutionalist judges could conceivably retrench these fundamental rights on the basis that society values them less now than it once did.

In the final analysis, originalism versus living constitutionalism and textualism versus other means of statutory interpretation^[9] See here. may come down to how one sees the role of judges.

Justice Breyer views judges as problem-solvers who should interpret a law (statutory or constitutional) by “consider[ing] a problem from every angle,” as he put it in one interview. This includes assessing the law’s purposes and consequences, and whether it makes sense in relation to contemporary circumstances and values. By contrast, textualists and originalists see the judicial role as more modest–seeking to ascertain and defer to the choices the elected representatives of the people made as set forth in the enacted law. They favor relying on democratic processes to decide by formal amendment when and how the law needs to change.

With due respect to Justice Breyer, I’d submit that textualism and originalism, with all their limitations, are preferable to the alternatives.

 

 

 

Section 3 of the Fourteenth Amendment disqualifies from a wide range of State and federal offices individuals who took an oath to support the Constitution and then “engaged in insurrection or rebellion” against the United States or gave “aid or comfort” to its “enemies.” In Trump v. Anderson, the Supreme Court unanimously reversed a Colorado Supreme Court decision holding that section 3 disqualified Donald Trump from running for president.

What to make of this decision?

Putting aside for the moment its legal merits, there’s much to be said for the outcome. As the opinion observes, allowing individual States to strike federal candidates (particularly presidential candidates) from the ballot under section 3, probably applying different legal and evidentiary standards to determine whether they “engaged in insurrection,” could produce a “patchwork” of results creating chaos in elections. Invoking section 3 to challenge candidates once elected and even serving in office would be still more chaotic.

Disqualifying the odds-on favorite to be the presidential nominee of a major party also would be a tremendous shock to the political system. But the consequences of injecting section 3 into our ever more toxic politics go beyond Trump and the 2024 election. Attempted disqualification would likely become a popular new form of lawfare in many future elections, especially given the “sweeping” scope its leading advocates, such as law professors William Baude and Michael Stokes Paulsen, attribute to the term “insurrection.”

All this would be based on resurrecting an obscure constitutional provision enacted with a specific purpose in mind—barring from office Confederates who waged war against the United States—that was accomplished over a century ago and extending it far beyond its original context. The potential consequences of affirming the Colorado decision were so extreme that even many Trump opponents had qualms about it and hardly anyone expected the Supreme Court to uphold it.

As a practical matter, the Supreme Court’s decision appears to return section 3 to the mists of history with regard to the presidency and every other federal office.^[1] The Court specifically held that States could enforce section 3 against their own officials. All nine Justices agreed that States could not enforce section 3 against federal candidates and officials. To the consternation of four Justices, the other five went further and seemingly concluded that additional congressional legislation would be needed to enable even federal enforcement against federal candidates and officials. Given Congress’s dysfunction and gridlock, it’s extremely unlikely that Congress could enact such legislation.  

While the practical considerations underlying the Court’s decision may be compelling, its legal reasoning is not. The unanimous holding that States cannot enforce section 3 against federal candidates seems wrong on many levels. By its terms, section 3 clearly appears to be self-executing in the sense that disqualification attaches automatically to those it describes:

“No [such] person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State.” (Emphasis added)

The final sentence of section 3 reinforces this conclusion by authorizing Congress to “remove” the “disability” that it imposes.  

Section 5 of the Fourteenth Amendment empowers Congress to enforce its many provisions by appropriate legislation. However, it does not explicitly or implicitly preclude State enforcement as well. On the contrary, with exceptions not relevant here States  share both the power and the obligation to enforce the Constitution. Article VI, clause 3 requires State officials to take the same oath as their federal counterparts to support the Constitution.

In fact, States regularly enforce the provisions of the Fourteenth Amendment and many other constitutional provisions including those governing eligibility for federal elective office such as age, citizenship, and residence requirements. Enforcing section 3 obviously differs in complexity but not in kind.

The Court reasons that the Fourteenth Amendment was enacted to enhance federal power at the expense of State authority and, therefore, it would be “incongruous” to read it “as granting to the States the power—silently no less—to disqualify a candidate for federal office.” But by excluding a federal candidate from the ballot based on section 3 a State does not exercise its own power to “disqualify” that candidate; it simply enforces a disqualification already imposed by the federal Constitution.

The Court makes much of the fact that States almost never^[2]Only once, according to the Court. enforced section 3 against federal candidates (as opposed to State candidates) in the early years following ratification of the Fourteenth Amendment. However, the absence of State enforcement likely stemmed from a lack of enthusiasm for this task rather than a perceived lack of authority. (All but one former Confederate State initially refused to ratify the Fourteenth Amendment.) Indeed, congressional enactment of legislation mandating enforcement of section 3 was apparently based on dissatisfaction with State enforcement efforts.  

Finally, as the concurring opinion of Justices Sotomayor et al. points out, the five Justices who concluded that section 3 cannot be enforced even federally without additional congressional legislation offered “next to no support” for this conclusion.

In sum, the Court’s legal conclusions run counter to the Constitution’s text, structure, and logic and are thoroughly unpersuasive. However, there is a more straightforward and legally defensible (“originalist” even) rationale to support the decision’s outcome: The case that Trump “engaged in insurrection” is too weak to trigger disqualification under section 3.

There is widespread agreement that the January 6 attack on the Capitol was disgraceful and Trump’s conduct was despicable. However, whether this rose to the level of an “insurrection” for purposes of section 3 and if so whether Trump “engaged” in it pose difficult legal questions.

Legal definitions of “insurrection” at the time section 3 was enacted and now are arguably broad enough to be made to fit the events of January 6. Baude and Paulsen describe the term “insurrection” as “capacious” and define it as “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”^[3]See page 676 of their previously linked article. However, if insurrection under section 3 sweeps this broadly it would encompass a host of actions that impede governmental functions in some way, such as garden-variety protests that often feature some violence and law-breaking. Baude and Paulsen assure that their definition “requires something more than a mere spontaneous, disorganized ‘riot’” but offer no clear criteria to draw the line.

A very broad interpretation of “engaging in” or inciting insurrection would also implicate free speech rights in many contexts. Moreover, as this case illustrates, the consequences of invoking section 3 are severe, anti-democratic, and potentially very disruptive to our political system. Notably, Congress removed section 3’s disability from all Confederates not long after its enactment.  

The foregoing considerations argue for a more circumspect approach that would construe these terms, at least as used in section 3, with a view toward section 3’s original purpose and context. Section 3 was enacted with a singular focus on the Civil War and Confederates who sought the dissolution of the United States by force of arms. Invoking it should be limited to actions bearing some significant resemblance to this in kind if not in magnitude—e.g., a concerted, violent undertaking that constitutes an attack on the United States itself.

Reprehensible as it was, the January 6 debacle hardly fits this description. It was a raucous, disorderly, loosely (if at all) organized protest that degenerated, apparently largely spontaneously, into a riot in which some (but not most) participants engaged in violence. However, it did not approach, either by design (if indeed it had any) or execution, a serious effort to overthrow the government.^[4]See here and here for more background. On the contrary, it more closely resembled the kind of “spontaneous, disorganized riot” that Baude and Paulsen say falls outside the scope of section 3.

Likewise, treating Trump’s words and actions (reckless as they were) as engaging in or inciting insurrection is a stretch under contemporary First Amendment case law. Doing so could have chilling effects in many other contexts. It’s surely relevant in this regard that federal prosecutors who have been extremely aggressive in pursuing January 6 criminal cases declined to charge Trump or any participant in the January 6 attack with the federal crime of “insurrection” (18 U.S.C. 8323).

The many potentially far-reaching negative consequences and practical complications that section 3 poses, as acknowledged by the Court and discussed previously, further support setting a high bar for its application.

Nevertheless, the Court was clearly determined to avoid the insurrection issues at all cost–probably for understandable if intellectually suspect reasons. For one thing, the issues are messy factually and legally. For another, the Colorado courts developed a substantial record on these issues and it would have been awkward for the Court to summarily reverse them on it.

Perhaps most significant if speculating about the Justices’ motives, the issues of whether January 6 constituted an “insurrection” that Trump “engaged in” are as politically polarizing as they are legally fraught. No doubt the Court would have faced much more internal and external controversy by biting the bullet and addressing these issues than by retreating to the facile approach it adopted. Indeed, a decision based on the insurrection issues probably would have fractured the Court and subjected it to major criticism however it came out.

In the final analysis, one pundit observed of Trump v. Anderson:

“The Republic will not fall because the Court engaged in an unprincipled, pragmatic resolution where its self-interest was severely implicated.  But let’s not kid ourselves that this was originalism.  It was not.”

Fair enough, but there are two downsides. One is that the Court apparently gutted enforcement of section 3 in response to any future event that might bear a closer resemblance to the type of insurrection that prompted its enactment. Hopefully, the chances of such an event are exceptionally remote but who can be confident of that given the depths to which our politics and public discourse have fallen.

The other, more practical downside is that the Court leaves dangling the polarizing question of whether Trump is indeed an oath-breaking insurrectionist who should be constitutionally ineligible for the presidency even if there is no clear means to disqualify him. If Trump wins the election, this question is sure to hang over him and further erode our politics.