Today, Andy meditated on the question of presidential immunity. He began by noting that he:
started out pretty much where Charlie is on the question of presidential immunity — the issue on which we expect a Supreme Court ruling in the coming days. There is no clause in the Constitution expressly granting immunity to the president. And one has to assume that this was not an oversight. The Constitution explicitly grants members of Congress speech and debate immunity (art. I, §6, cl.1). Hence, if the Framers intended to grant the president immunity for official acts, it’s fair to conclude they would have said so unambiguously.
(Andy’s “where Charlie is” refers to my long piece on the topic, here.)
Andy then wonders about the separation of powers. Pointing to an exchange during oral argument between Justice Gorsuch and Michael Dreeben (the government’s lawyer in this case), Andy suggested that the:
interesting thing about this is that, while it contains no immunity clause, the Constitution does have a structure and an animating separation-of-powers principle that blocks the criminalization of at least some executive actions. Dreeben, of course, doesn’t want to call it “immunity” because, he fears, that would give the game away: If he concedes there is some quantum of immunity, we’re then onto groping for limiting principles regarding its contours.
Gorsuch, however, declines to play this game: If there is executive action that Congress cannot criminalize because doing so would transgress the Constitution, then that is immunity — even if Dreeben would rather avoid the i-word and call it an “as applied Article II challenge” to a penal statute.
Trump’s prosecutors want to narrow the scope of immunity (or, if you prefer, of conduct that is non-prosecutable on separation-of-powers grounds) to a tight core of presidential powers (i.e., Congress cannot use its legislative power to enact criminal laws in a way that attrits Article II executive power).
Yet, as the dialogue with Dreeben continued, Gorsuch went on to show that, once you admit there is an ambit of executive action that Congress cannot legislate away, then it’s tough to corral that — at least as long as the president is undeniably exercising executive power.
I comprehend this argument, but I don’t think that it meaningfully affects the question of “immunity.” Eventually this all becomes horribly semantic, but, in my view, if we’re dealing with a question that is driven by the Constitution’s rules delineating the separation of powers, then we’re dealing with a separation of powers issue and not an immunity issue.
Logically, one can quite credibly say (a) that the president does not enjoy immunity from prosecution, and (b) that Congress is constitutionally limited in which of the president’s actions it may criminalize. Why? Well, because, 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? Linguistically, I am correct to say that I am “immune” from Tetanus because, despite Tetanus existing in the world, I have received medicine that prevents it from hurting me. But 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.
Think about this the other way around. Within our system of separated powers, it seems self-evident that the executive branch cannot prosecute members of Congress for, say, overriding the president’s veto. But that doesn’t imply that the members of Congress have “immunity,” or that the limits of that “immunity” are hard to discern; it implies that there are some things that the executive branch isn’t allowed to do per se. Certainly, that is a limit, but it is a limit that is being placed on the branch that might take the action, rather than on the branch against whom that action might be taken. Properly understood, we would not call that “immunity”; we would call it “impotence.”
Andy is clear in saying that he does not “believe the Court will or should wholesale adopt Trump’s extravagant view of executive immunity.” Nevertheless, he seems to think that the mere presentation of that “extravagant view” creates a tricky line-drawing problem. “Once you admit there is an ambit of executive action that Congress cannot legislate away,” he writes, “then it’s tough to corral that — at least as long as the president is undeniably exercising executive power.” I do not see why this is the case. Our courts draw nuanced separation-of-powers distinctions all the time — and, usually, they do so absent all-encompassing claims of executive imperviousness. Typically, judges start from the premise that the members of each branch enjoy no intrinsic immunity, and, from there, consider the narrow questions of institutional authority with which they have been presented. As a political matter, I understand why Donald Trump is trying to invert this process so that the presumption is of blanket immunity and the search is for intelligible exceptions. I don’t understand, however, why we have to play along.