Today, the Supreme Court heard oral arguments in Trump v. United States, a case concerning presidential immunity. The discussion focused on unresolved issues from the Trump presidency. One issue raised during the Mueller investigation was whether Trump violated the federal obstruction of justice statute. Some argued that a criminal statute should only apply to the President with a clear statement to that effect. Another issue was whether the federal bribery statute applied to the President, despite no clear statement. However, bribery is listed as a ground for impeachment in the Constitution, making it difficult to argue that the President has the authority to engage in impeachable conduct.
The case also raised questions about what constitutes bribery in the context of the presidency. Seth Barrett Tillman and I proposed a theory based on mixed motives, where public and personal motivations are intertwined. We argued that trading one public official act for another does not constitute illegal conduct. This theory, though initially focused on impeachment, could apply more broadly to a federal criminal prosecution of a former president.
Motivations play a crucial role in this analysis, as personal and public motivations are often intertwined for politicians like Trump. Acting with an eye towards reelection is not necessarily improper, as long as the action also serves the public interest. Justice Kavanaugh showed particular interest in the “clear statement rule,” given his experience working under Independent Counsel Ken Starr and as a White House attorney under President George W. Bush. He emphasized the significance of the case for the presidency and the country as a whole. Kavanaugh inquired of Trump’s counsel, John Sauer, whether a statute explicitly mentioning the president is necessary for criminalizing the president’s official acts. He later emphasized the need for a clear statement in the statute to alert the president and ensure they act accordingly. Kavanaugh argued that Congress must consider the implications of subjecting the President to criminal liability. In a discussion with Michael Dreeben, counsel for Jack Smith, Kavanaugh pointed out that the OLC opinions establish a clear statement rule for covering official acts. He noted that none of the statutes in the indictment specifically mention the president, thus suggesting the president cannot be charged for official acts under these statutes. However, Dreeben disagreed with this interpretation. Marty Lederman later challenged the clear statement rule, stating that it is not an established canon. Kavanaugh raised a constitutional question regarding the application of statutes to the president’s official acts, suggesting that statutes should not apply to the president unless Congress explicitly states so. Dreeben countered that not all statutes pose a serious constitutional question. Kavanaugh expressed concerns about obstruction and conspiracy charges being used against presidents historically by creative prosecutors.
Kavanaugh criticized the Morrison v. Olson decision as a mistake and praised Justice Scalia’s dissent in that case. He suggested that the clear statement rule should apply universally, citing Franklin v. Massachusetts. Kavanaugh also discussed the complexity of bribery cases involving the president, with Chief Justice Roberts questioning the distinction between official and private acts. Dreeben provided examples of how bribery could involve official powers, such as the pardon power or foreign recognition power. Roberts highlighted the interconnected nature of the quid and quo in bribery cases. Dreeben emphasized that bribery involves the abuse of public office for private gain. The concept of private gain versus public gain was debated, with Justice Jackson and Judge Easterbrook offering differing perspectives on the issue. Dreeben argued that many acts violating federal criminal law involve the misuse of official power for private gain. The discussion highlighted the challenges in determining when actions constitute personal gain versus public gain in cases involving public officials. Jack Smith would likely argue that Trump’s actions were motivated by “private gain,” while Trump himself would likely justify his actions as being in the national interest of ensuring fair elections as well as for his own re-election. The line between personal gain and national interest can be blurred for a President. Dreeben’s concept of “private gain” could potentially criminalize normal political actions, but recent Court cases like McDonell and Kelly suggest otherwise.
An interesting exchange during the oral argument was between Justice Gorsuch and Michael Dreeben regarding assessing the President’s motives. The discussion touched on past Presidents using their powers for personal gain, such as Lincoln during his re-election. Justice Kavanaugh also raised examples of Presidents making false statements or taking controversial actions. Dreeben hesitated to delve into motivations, acknowledging the complexities involved. Justice Gorsuch pushed for clarity on whether motives should be considered for core presidential powers like pardons or removals.
Dreeben’s responses were evasive, leading to further questions about the limits of investigating a President’s motives when exercising constitutional authority. The Department of Justice’s reluctance to address this issue was evident. Justice Barrett also inquired about the consequences of a President’s actions with bad motives.
Assessing a President’s motives is a challenging task, especially within the realm of constitutional authority. The Department of Justice’s resistance to probing into motives is understandable, given the complexities involved. The oral argument highlighted the difficulties in defining the limits of presidential powers and the role of motives in such decisions.
Overall, the oral argument raised important questions about the intersection of personal motives and presidential authority. The Court’s ruling on this case could have significant implications for future presidential actions and the scrutiny they may face. Stay tuned for further analysis on this topic.
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