The Senate Judiciary Committee held a hearing last week to explore the effects of the recent Supreme Court decision on presidential immunity in Trump v. United States. The hearing showed fault lines in different reactions to the Court’s opinion, with potentially unintended implications for Special Counsel Jack Smith’s and former President Donald Trump’s positions before the district court.
The five witnesses were:
- Philip Lacovara, former U.S. Deputy Solicitor General and former Counsel to the Watergate Special Prosecutor (prepared remarks)
- Jennifer Mascott, Associate Professor at the Columbus School of Law at Catholic University of America, Director of the Separation of Powers Institute (prepared remarks)
- Mary McCord, Visiting Professor of Law at Georgetown University Law Center, Executive Director of the Institute for Constitutional Advocacy and Protection, former Acting Assistant Attorney General for National Security (prepared remarks)
- Michael Mukasey, former U.S. Attorney General and former U.S. District Judge (prepared remarks)
- Timothy Naftali, Senior Research Scholar at Columbia University’s School of International and Public Affairs (prepared remarks)
The hearing—which included arguing over whether the title of the hearing was inflammatory, incorrect, or apt—involved a significant amount of partisan posturing. But amidst that, there were some valuable takeaways. One of the most interesting was a breakdown of different visions of the Supreme Court’s decision. Detractors of the Court’s opinion (e.g., Committee Chairman Senator Dick Durbin (D-IL)) read the establishment of presidential immunity very expansively, which would have the consequence of weakening the Special Counsel’s case. On the converse, some supporters of the Court’s opinion (e.g., Ranking Member Lindsey Graham (R-SC)) read the provision of immunity much more narrowly, with the effect of strengthening the Special Counsel’s case against Trump.
The unintended consequences of the interpretation of Chief Justice John Robert’s majority opinion are not a completely novel observation. Readers may also be interested in Adam Klasfeld’s essay in Just Security written soon after the Court’s opinion: “Trump’s Prosecutions Depend on Whether the Dissent Got It Right.”
1) Broad Vision 1 (Court detractors): Interpreting Trump v. U.S. as expansive and radical
From his opening remarks, Durbin characterized the Supreme Court’s decision as so expansive as to be “a game-changing act of judicial fiat that puts all future presidents above the law, protecting them from criminal prosecution for abusing the authority given to them for personal or political gain.”
Senator Sheldon Whitehouse (D-RI), a former U.S. Attorney and state attorney general, went further, claiming that this opinion allows a president to “freely commit crimes,” that it “didn’t even carve out treason,” and that “now the [official] acts can’t even be used as evidence” of a quid pro quo bribery scheme.
This read of the majority opinion—as having far-reaching application—gives credence to the argument that this Supreme Court is uniquely unbounded by law, but it also makes Jack Smith’s job more difficult. If Durbin and Whitehouse are correct, Smith may struggle to salvage much of his indictment, depending on what’s left of unofficial conduct. (Notably, Justice Sonia Sotomayor’s dissenting opinion criticized the majority for “narrow[ing] the conduct considered ‘unofficial’ almost to a nullity.”)
2) Broad Vision 2 (Court supporters): Interpreting Trump v. U.S. as expansive, but grounded in precedent
Senators Mike Lee (R-UT) and John Kennedy (R-LA) joined Durbin and Whitehouse in characterizing the opinion as expansive, but argued that this scope was necessary. Lee highlighted that, as distinct from the other two branches of government, “the President of the United States is himself the living embodiment of the Executive Branch.” To Lee, this unitary nature of the Executive requires that there be broad immunity protections for the president. In an exchange with retired judge and former U.S. Attorney General Michael Mukasey, Lee asked what it would do to the presidency if, without this ruling, presidents “had to look over their shoulder constantly in evaluating their own personal future personal stake in [a given decision] and what could subject them to criminal prosecution.” Mukasey replied that the institution of the presidency would be “whittled away.” (Note that others would argue this view elides how the Court potentially carved out an enormous domain of presidential conduct as only presumptively immune, allowing prosecutors to overcome it.)
On a similar note, Kennedy had an exchange with Professor Jennifer Mascott that hypothesized that a future former president could spend millions of dollars defending against “ambitious district attorneys.” Kennedy declared that, absent the majority’s decision, the threat of post-presidency criminal prosecution would have a “chilling effect” on presidents’ execution of their duties while in office.
In these exchanges, the Senators argued that presidential immunity from criminal prosecution is broad for structural and practical reasons. But contrary to this expansiveness being a novel legal development, as Durbin and Whitehouse contended, Lee and Kennedy argued that the decision is both expansive and not radical or divergent from the framing of the Constitution.
Whitehouse had earlier contended that the Supreme Court’s decision demonstrated that textualism and originalism are “laughably fake and disposable doctrines,” and Senator Richard Blumenthal (D-CT) noted that the Court “cited almost no authority for its core conclusions.” Perhaps in rebuttal to these contentions, Lee teed up a question for Mascott to opine on the textualist and originalist underpinnings of the majority decision. As authority, she cited “longstanding structural understanding” of the Constitution, sovereign immunity, the Vesting Clause, Supreme Court precedents (she admitted, “albeit in the civil context”), the 2000 Office of Legal Counsel Opinion that concluded that a sitting president is immune from criminal indictment and prosecution, and that the immunity power is inherent “in the concept of executive power itself, properly historically understood.” Lee accepted this explanation as “root[ing]” the majority decision in text and structure.
Kennedy similarly attempted to situate presidential immunity within an implied structural construct of the Constitution. In an exchange with Philip Lacovara, Kennedy countered Lacovara’s contention that the words “presidential immunity” do not appear in the Constitution with the fact that the words “separation of powers” similarly do not appear in the Constitution, but are nevertheless an important constitutional structure. Lacovara conceded that fact, but asserted that that very same separation of powers structure does not imply the type of presidential immunity that the majority finds.
3) Narrow Vision (Court supporters): Interpreting Trump v. U.S. as limited
Instead of seeing Roberts’ opinion as housing an expansive scope of immunity, Graham and Mukasey characterized it as significantly more limited.
In his opening statement, Mukasey said that the dissent attributes “a complete lack of common sense to the majority.” This desire to ascribe common sense to the majority permitted Mukasey to engage on hypotheticals that the majority avoided in their opinion. In his prepared remarks, Mukasey defended a president’s ability to order the “extrajudicial killing abroad even of an American citizen” (citing Anwar al-Awlaki) but called the assassination of a political rival or the organization of a coup “facially unlawful” and therefore not official. In an exchange with Senator Chuck Grassley (R-IA) discussing the political assassination hypothetical, Mukasey defended his “common sense” approach by claiming that the guardrails that he infers from the majority opinion are a “logical extension” (before correcting himself to say a “plausible extension”) of Nixon v. Fitzgerald. But it is difficult to reconcile Mukasey’s theory of a “common sense” approach based on the “facially unlawful” nature of the president’s conduct with the Court’s own words: “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.”
In an exchange with Senator Peter Welch (D-VT), Mukasey directly addressed whether a president would receive immunity in a few hypothetical scenarios. Mukasey conceded that a president ordering the IRS to go after an individual should not receive immunity and that a president ordering the targeting of Jews in government (based on Professor Timothy Naftali’s opening statement about a scheme by President Richard Nixon) should not receive immunity; but that, as he understands it, this majority decision would also not grant immunity in these hypotheticals. (In contrast, Mary McCord’s opening statement took a different view on how the majority’s opinion may apply to the IRS hypothetical: “The rationale of the majority’s decision would appear to apply to all departments and agencies. No potential criminal prosecution would prevent the president from directing the IRS to launch baseless criminal investigations.”)
Echoing Mukasey reading “common sense” into the majority opinion, Graham defended it as a “logical approach” in his opening statement. In sketching the majority’s three-part framework for immunity, Graham noted that a factual determination is required to determine whether an act is official. But this “logical approach” that Graham outlined began to fall apart when he engaged with the only hypothetical that the majority opinion uses: a prosecution for bribery in footnote 3:
“In the footnote it says that you can prosecute a president who took a bribe for a pardon. [Asks for agreement from Mr. Lacovara.] But it also says that you can’t go into the motive stuff because I don’t know where all that ends. So, an explicit grant of authority to the president seems to have a standing with the court different from things that are not specifically addressed by the Constitution.”
This explanation not only demonstrated the shared confusion around what footnote 3 means, it also suggests that Mukasey’s and Graham’s attempts to find “common sense” and a “logical approach” in the majority’s framework may be speculative or exaggerated, rather than supported by the opinion itself. That said, their efforts to provide a narrowing interpretation and their conceding certain hypotheticals makes the Supreme Court decision more palatable and is the likely strategy that Jack Smith will take on remand.
Trump v. U.S. Supporter |
Trump v. U.S. Critic |
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Broad View of Immunity Holding
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Narrow View of Immunity Holding
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4) Open Questions: Congress’s and the courts’ ability to check and balance the executive branch
McCord, who previewed her testimony in a Just Security piece, had an important exchange with Senator Amy Klobuchar (D-MN). McCord foregrounded how the majority’s opinion may remove congressional checks on the executive branch in domains of official conduct deemed “conclusive and preclusive” executive authority.
Klobuchar expressed a concern about maintaining the independence of the Justice Department if the president can decide which crimes to investigate and prosecute, particularly if Congress cannot act on that decision and the courts cannot examine it. In response, McCord noted that there are norms, but no constitutional protections, that address Klobuchar’s concerns. But Klobuchar’s follow-up question exposed a greater danger of the “conclusive and preclusive” language that the majority quoted from Youngstown. Klobuchar asked:
“Could the Court’s decision mean that Congress and the courts are powerless to insulate any Justice Department official, from line attorneys to the inspector general, from the direct partisan control of the White House?”
McCord responded that, in Youngstown, Justice Robert Jackson wrote that a claim of presidential power “at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” McCord noted that the majority opinion does leave open the exact type of question that the Senator raised.