The Supreme Court’s immunity decision in Trump v. United States has rightly received strong criticism from legal analysts, including me (here, and here, for example). This morning, I am testifying before the Senate Judiciary Committee at a hearing titled, “‘When the President Does It, that Means It’s Not Illegal’: The Supreme Court’s Unprecedented Immunity Decision.” Based on my nearly 25 years in the Executive Branch, most of it at the Department of Justice under both Republican and Democratic administrations, I am focusing on the consequences of the decision on government functions and separation of powers.
As I explain in my testimony, my concern is that the majority’s opinion in Trump v. United States capaciously defines core constitutional powers—for which the President is absolutely immune—to extend far beyond the pardon power, the veto power, and the power to recognize foreign governments. Concluding that the investigation and prosecution of crimes is a “quintessentially executive function,” the majority holds that the former President is absolutely immune for “alleged conduct involving his discussions with Justice Department officials.” That means the President’s authority in this domain vis-à-vis the executive branch is “conclusive and preclusive”: Congress cannot act upon it, and the courts cannot review it.
The potential abuses of official power that are made possible by the Court’s ruling, and the neutering of Congress’s ability to act, are alarming.
Is Congress now disabled from tying the appropriation of funds to certain areas of law enforcement? From enacting legislation that governs Justice Department organization and functions? From requesting records and testimony from Department and FBI leadership?
Could the President direct the FBI to engage in unlawful surveillance of Americans? Or to target individuals or groups based on race or religion?
If the President were to bring a civil suit against the Department of Justice, as the former President has provided notice he intends to do, could he order the Department to settle the case for millions of dollars even if the suit itself were baseless?
To make matters worse, the rationale of the majority’s decision would appear to apply to all executive departments and agencies. No potential criminal prosecution would prevent a president from directing the IRS to launch baseless criminal investigations. Likewise, no potential criminal prosecution would prevent a president from using the CIA for domestic operations. Many of the vital reforms enacted by Congress in the wake of past abuses would be impotent in the face of a president unconcerned about adhering to the rule of law.
You can stream the hearing here and read my statement in full, below.