A Legal Scholar Explains Why Trump’s Immunity Argument Is Bogus

Supreme Court oral arguments were made for social media. Social media was not made to make Supreme Court arguments persuasive or even understandable.

The court’s latest Donald Trump case is a perfect illustration. The justices on this court are relatively young. Their questions are clear and direct, and they all are engaged, respectful, and fair. If you listen from start to finish, you can’t help but think this is the most deliberate and serious branch of the three-ring circus that is Washington, D.C.

Yet clips from any argument, taken out of context, especially for an audience untrained in law, are catnip for the kitten-focused internet. They trigger us, and become the focus of angry exchanges. We yearn to roll our eyes and ridicule, and social media provides an endless supply of eye-rolling treats. When Justice Elena Kagan asked Trump’s lawyer to say whether a president ordering the military to stage a coup would qualify as an official act, Sauer responded that “it would depend on the circumstances.” It would depend on the circumstances? What the freak are you talking about?!

But what was troubling about the exchange last Thursday was not the snippets. It was the whole show drawn together. The court let this case appear to be much harder than it actually is. And if we’re lucky, it will recognize in time that it need not map a full range of executive insanity to decide whether Donald Trump should face trial in a D.C. district court.

Donald Trump v. United States is an easy case made difficult only because we can so easily imagine Trump behaving in ways that would actually raise difficult constitutional questions.

Lawyers and scholars of the Constitution have long struggled to understand the limits that the Constitution imposes on Congress’ ability to hold the executive accountable. The great Chief Justice John Marshall, in the one decision that every high school student reads about, Marbury v. Madison (1803), signaled clearly that there would be some limit. But alas, he didn’t grant us the favor of specifying precisely what that limit would be.

As Marshall wrote for a unanimous court: “[Is the act] a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our Constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy? … By the Constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”

More recently, a lesser lawyer (but still quite a lawyer), Richard Nixon, tried to explain the puzzle to David Frost in perhaps Nixon’s most famous post-presidency interview.

Frost: So … you’re saying … there are certain situations … where the president can decide that it’s in the best interests of the nation … and do something illegal.

Nixon: Well, when the president does it, that means that it is not illegal.

Frost: By definition.

Nixon: Exactly. Exactly. If the president, for example, approves something because of the national security … then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law.

Yet what makes these questions so hard is the same thing that makes Trump v. United States so easy: Marshall and Nixon are speaking about cases where the president is clearly executing core presidential powers. But left obscure in the oral argument in Trump v. United States is that Donald Trump was not executing presidential power in any legally relevant sense when he engaged in the behaviors charged in Jack Smith’s indictment. None of the hard questions of presidential immunity are raised by the case. Indeed, the only hard question is why the lawyers have let it seem as if this is a difficult case.

The trigger for any question of presidential immunity is the president’s performing an “official act,” as the leading Supreme Court case on absolute presidential immunity, Fitzgerald v. Nixon, put it in 1982. The lawyers at the oral argument last Thursday obscured the clarity of that trigger by speaking of “official powers” and “public acts.” But those are confusions of a much clearer idea: The first question that must be asked when asking whether the president is immune is whether his act was an “official act,” part of, as Justice Story put it in 1833, the “duties of his office” as president of the United States.

What is absolutely clear about our Constitution and constitutional tradition, however, is that the president has absolutely no official duty when it comes to selecting the next president. Indeed, it’s a hard question whether Congress itself has anything to do with the selection of the president, beyond the (naively expected-to-be simple) counting of electoral votes. Instead, it is the states that have the primary, and perhaps exclusive, power to determine the elements necessary for choosing the president of the United States. The state legislatures are given the exclusive power to “appoint, in such manner as [they] may direct” presidential electors; in 2020, the court held that power to tell presidential electors how they must vote.

The Constitution then imagines that those certified slates of electors and their votes will then be transmitted to Congress, where those votes are ” counted on a date set by Congress [read: Jan. 6], those votes are “counted.” Unlike with elections to the House and now Senate, the Constitution does not make Congress the judge of those elections (someone needs to explain that fact to Sen. Josh Hawley). And the Constitution certainly does not involve the president in any part of the process by which state legislatures determine the electors that will cast the ballots representing their states.

This doesn’t mean the president won’t play a role in that process. It’s a free country. Any of us are free to lobby a legislature or reach out to a secretary of state. But it does mean that when a president does try to play a role in that process, he or she does so as a citizen, or a candidate, not as a president performing the “duties of his office.” Or more directly, he or she is not executing an “official act.”

Trump’s lawyer in the Supreme Court brilliantly suggested the contrary, and perhaps because the argument had not been made in Trump’s briefs in the Supreme Court, the government’s lawyer, perhaps the greatest Supreme Court advocate of our time, Michael Dreeben, let the point slide.

When Justice Sotomayor suggested that Trump’s acts “insisting and creating a
fraudulent slate of electoral candidates” could not be seen as “plausibly” legal, Dean Sauer responded: “We have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes. The notion that it’s completely implausible I think just can’t be supported …”

Later on, Sauer gave a similar response to Justice Elena Kagan. Kagan had asked why engaging with the RNC to “gather electors” “would … be [an] official [act]?”

“Because the organization of alternate slates of electors is based on, for example, the historical example of President Grant as something that was done pursuant to and ancillary and preparatory to the exercise of the core recommendation clause power,” Sauer claimed.

Bullshit. Ulysses Grant, in 1876, was not executing any inherent presidential power — certainly not the “recommendation clause power” — when he sent troops not to “Florida and Mississippi” but to Florida, North Carolina, and Louisiana. Instead, Grant was executing powers given to him by Congress in the Enforcement Act of 1871. That statute gave the president extraordinary power to ensure fair and peaceful elections. Grant had exercised that power effectively in 1872, making that the most peaceful and fair election in the post-Civil War 19th century.

He had tragically failed to repeat the exercise of that power to protect the vote in 1876, leading most to conclude that violence and intimidation had radically suppressed the Black Republican vote across the South, giving Samuel Tilden, the Democrat, a popular vote majority. Many questioned whether Congress had the power to pass the Enforcement Acts. But whether they did or not, Grant’s acts were “official acts” only because he was exercising power given to him by Congress, not because of any power given to the executive by the Constitution.

Trump, by contrast, was not exercising any power to police presidential elections given to him by Congress when he engaged in the acts charged in Jack Smith’s indictment — because, again, neither Congress nor the president has any constitutional power to police how the states carry out their obligation to participate in a presidential election. Trump’s acts were, therefore, not “official acts” because the authority to perform those acts flowed neither from the Constitution nor from any federal law. He acted, in other words, not with any shield of federal law, but merely as an ordinary citizen trying to bring about the political result that he wanted.

Granted, it is sometimes difficult to see this point clearly, given the extraordinary immunity the Supreme Court has granted the president in Fitzgerald v. Nixon, at least in the civil context. There, the high court instructed lower courts to secure presidents immunity for acts “within the ‘outer perimeter’” of the “duties of his office.” But to suggest that there is an “outer perimeter” is to recognize that there are acts beyond that perimeter. And if one parses carefully the sort of “duties of … office” that Fitzgerald was speaking of, it is perfectly clear that acting to secure or overthrow a presidential election is nowhere near any “outer perimeter” of any constitutionally granted presidential duty.

As the court in Fitzgerald explained, the president’s position is “unique.” He is vested with the “Executive Power of the United States” — not the power to ensure the Georgia secretary of state has not missed 11,780 ballots. The Constitution makes him “the chief constitutional officer of the Executive Branch.” But the “Executive Branch” does not oversee presidential elections — the states do.

The president oversees “the enforcement of federal law” — which is why Grant was empowered to send troops to the South in 1876, and why Trump had no license from Congress to muck about with alternate slates of presidential electors. The president is charged with the “conduct of foreign affairs” — which a presidential election is not. And he is charged with the “management of the Executive Branch” — which again does not oversee state elections or state legislatures or slates of presidential electors or anything else related to electing a president.

The point is that even though Fitzgerald gave incredibly broad immunity (in the civil context) to a president when performing anything within the “outer boundaries” of the “duties of his office,” Fitzgerald gives no protection to a president who has wandered outside of the “duties of his office.” And though many wonder whether there is anything that is truly beyond the duties of an American president, here is one clear case: the selection of the next president.

And obviously, this choice by the Framers makes infinite sense. If an incumbent has absolute immunity to muck about with the process that will determine whether he or she is reelected — while his or her opponent is bound by law to avoid fraud or threats or physical violence — then incumbency in America becomes something perfectly Putin-esque. Everyone understands why no effective challenger to Vladimir Putin ever appears on a Russian ballot: Anyone credible with the courage to challenge him ends up either dead or in jail; anyone left sees local and regional administrators bending over backward not to insult Russia’s current czar. Yet, though I doubt any incumbent, including Trump, would ever assassinate a political opponent, I don’t doubt that with absolute immunity, some would do everything in his or her power to coerce election officials to bend the rules to favor the incumbent.

Such a system would be a nightmare. But the point is, it is not our nightmare! The Constitution is perfectly clear that the president has no role in a presidential election. Any act an incumbent engages in to advance his candidacy should, therefore, be considered a personal act, not within the “duties of his office.”

As confident as pundits watching Supreme Court arguments are, the truth is that the court — and especially this court — is a much more careful institution than social media clips might suggest. Though I’ve long given up forecasting, I do believe that this court will see that there is a very simple path they could follow to decide this case and decide nothing more. Yes, when a president executes the “duties of his office,” there’s a really hard question about how much Congress can involve itself in that execution. But this court need not answer that question now. Because neither the Constitution nor current federal law gives any president any official “duties” when it comes to his or her own reelection. His or her acts are, therefore, his or her own. And a D.C. jury should thus have the power to determine whether those acts violated federal law.

So then, would, as Justice Sotomayor asked, a president be immune if “the president decides that his rival is a corrupt person and he orders the military … to assassinate him?”

This is a deliciously ambiguous question that invites two very different answers. If “a corrupt person” means simply a person who shouldn’t be president, then no, the incumbent’s order enjoys no presidential immunity. It is the action of a candidate trying to secure his own election.

But imagine the president is told by the CIA that his or her opponent is the Manchurian candidate — an agent of a foreign power. Is the president immune then?

Here, the D.C. District Court should do exactly as the Supreme Court instructed in United States v. Nixon: Presumptively, the president would not be immune. But the president could ask the court for immunity, and the high court could decide, in camera, whether the president could show that his order was indeed related to the “duties of his office.” Undoubtedly, protecting the nation from a foreign operative could be related to the “duties of his office.” The president could receive immunity.

Thus, candidates challenging an incumbent need not worry that immunity would embolden the incumbent. Manchurian candidates should beware.

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School.

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