If Congress’s Power to Criminalize Official Executive Acts Is Limited, That Is a Prohibition on Prosecution

I agree with Charlie that it “becomes horribly semantic” to draw a meaningful distinction between (a) immunity from prosecution and (b) whatever we want to call separation-of-powers bars against prosecution that have exactly the same effect as immunity. I also agree with his thoughtful explanation of why it’s not just a semantic difference; for the reasons I elaborated on here, I am sympathetic to the conviction that we should resist conferring on presidents and former presidents something we unreservedly call “immunity from prosecution.”

Former president Trump’s insistence that our government cannot function absent acknowledgment of presidential immunity is belied by its functioning for nearly a quarter-millennium prior to Trump’s claim — and for nearly two centuries before the Supreme Court recognized immunity from civil suits in Nixon v. Fitzgerald (1982).

That said, we are now in an era of unabashedly politicized prosecutions. I cannot say with the same confidence I once had that we’d be better off continuing to function without an explicit recognition of immunity. But it’s possible that we might be: The wrong turn the justice system has taken into punitive partisanship could be righted, allowing a return to the very workable status quo ante; an express grant of presidential immunity, by contrast, could become an invitation to dangerous executive lawlessness that the status quo ante never was.

Nevertheless, prior to the politicized-prosecutions era, the government functioned without an express grant of immunity because there was tacit immunity.

Some of this is best seen as a policy of non-prosecution rather than constitutionally driven immunity. The Bush-43 Justice Department, for example, did not pursue a prosecution of former president Bill Clinton on a theory that his last-minute pardons were bribery transactions. I’m not sure there was a prosecutable case (there were certainly grounds for an investigation) but I am certain that declining prosecution was the right call. Ditto the Obama administration’s lack of interest in prosecuting Clinton on what may have been the illegal retention of classified information. (As I’ve contended here, contrary to Trump’s recitation of the so-called Clinton Socks case, the ruling was merely that the national archivist lacked authority to attempt to retrieve the recordings Clinton made during his presidency, not that he would have had immunity from criminal prosecution if the Justice Department had chosen to get involved.)

Still, the avoidance of prosecution is not just policy. The Justice Department’s so-called plain-statement rule (as explained here by Jack Goldsmith, formerly head of the Office of Legal Counsel in the Bush-43 DOJ) is a “constitutionally based” rule of statutory construction. Under it, if a congressional statute — including a criminal statute — does not expressly apply to the president, the Justice Department will not apply it to the president if it would “arguably limit the president’s constitutional role” or “conflict with the president’s constitutional prerogatives” (quoting a 1995 OLC opinion by its then-chief, Walter Dellinger).

Goldsmith’s and Dellinger’s point is congruent with what I take to be Charlie’s point: To the extent this rule is useful, it is best thought of as separation of powers not a conferral of immunity. Indeed, Goldsmith notes Dellinger’s acknowledgment of an exception to the plain statement rule: It is inapposite when a statute would “raise[] no separation of powers questions were it applied to the president.” (The textbook example is bribery — which, as I suggested above, is what made the Clinton pardons a tough call. The Constitution makes bribery an impeachable offense and does not confer on a president authority to accept bribes; ergo, the clear-statement rule would not bar application of the bribery statute to a president or former president.) Goldsmith goes on to cite Supreme Court precedents that, similarly, decline to apply statutes to the president owing to separation-of-powers concerns.

But why is all this deep consideration necessary? Because things are not as cut-and-dried as Charlie’s latest post implies.

He says: “If an action cannot be criminalized in the first instance, then the person who takes that action does not need ‘immunity’ from such criminalization, does he?” Well, he needs some legal assurance — whatever you choose to label it — because things are not so straightforward. Congress legislates in language that sweeps in more conduct than Congress intended to target. Or, quite frequently in progressive governance dominated by administrative agencies, Congress legislates in broad (even vague) terms, quite intentionally creating running room for creative prosecutors to, in effect, criminalize conduct reasonable people would not have understood to be prohibited when the underlying statute was enacted. (In Trump’s own case, for example, would the 19th-century Congress that enacted the civil-rights laws targeting KKK intimidation of voters have predicted that their statutes could be used to indict a former president who — whether or not in good faith — questioned the legitimacy of state election results?)

This is why I don’t think Charlie’s tetanus-vaccine analogy works. Putting aside that there are important differences between legal and medical immunity, it’s not correct to say that “if Congress is constitutionally unable to take certain actions related to the president, then, unlike tetanus, those actions can’t legally exist, and, as a result, the president can’t be ‘immune’ from them.” To the contrary, just as Congress takes many actions that end up having wider impact than anticipated (or that quite intentionally have wider impact than was apparent at the time of enactment), it may make laws that negatively affect executive authority in ways that were not clear when the laws were passed.

It’s not the case that “those actions can’t legally exist.” In fact, courts accord acts of Congress a presumption of constitutionality, and they will adopt constructions of them that depart from the plain meaning of the text if necessary to avoid finding them unconstitutional. Moreover, in constitutional challenges to statutes, a distinction has always had to be drawn between “facial” and “as-applied” challenges, and the vast majority are in the latter category. That’s because it’s the rare statute that is so patently unconstitutional we can tell, on its face, that there is no application in which it would be valid. Most of the time, a disputed statute may legitimately be applied in some or most situations, but is unconstitutional as applied to the complaining defendant. Undeniably, the statute exists as a congressional action, and we presume it is valid; yet, we concede that some of its applications run afoul of the Constitution.

This was the point I believe Mike Dreeben was trying to make in the exchange with Justice Gorsuch that I excerpted and that Charlie also discusses. As the government prosecutor in Trump’s case, Dreeben did not want to say presidents or former presidents have “immunity.” He preferred to say they could raise “an as-applied Article II challenge” — and by “Article II,” which defines executive authority, he clearly meant a challenge based on the Constitution’s separation-of-powers principle.

I don’t have a problem with that because, to repeat, I think the system works better if (a) we assume criminal statutes are valid, (b) the Justice Department (i.e., the prosecuting authority) avoids applying to the president statutes that don’t expressly apply to the president and that could encroach on executive authority, (c) and in the hopefully rare event of a prosecution of a president or former president, the courts seriously entertain as-applied challenges based on separation-of-powers principles. That kind of framework would not encourage presidential lawlessness in the way an express acknowledgment of presidential immunity for official acts probably would.

Still, I don’t see much (if any) daylight between immunity and separation of powers as rationales for non-prosecution. And I think the reluctance to acknowledge presidential immunity from prosecution (which I share) is informed by the assumption that the Justice Department can be relied on to enforce the laws in a non-partisan manner, without fear or favor. Notwithstanding what Dreeben assured the Supreme Court at oral argument, I’m no longer sure that’s a safe assumption. I am thus at least as worried about the partisan weaponization of the criminal-justice process as I am about a clear acknowledgment of presidential immunity from prosecution over official acts.