Goodbye to Special Counsel Investigations of Incumbent Presidents

The Supreme Court’s decision in Trump v. United States will remain the subject of intense debate and disagreement for decades to come. The arguments will understandably focus on the precise issue that was before the Court: the immunity that a former president may enjoy from criminal indictment or prosecution. However, with considerable consequence, and little notice in the commentary today, the Court slipped into a single footnote one additional conclusion, relating to the protections of presidents while in office. It effectively shut the door on any further questions about the controversial Department of Justice legal opinions finding that presidents were immune during their terms from any such prosecution.

In doing so, the justices put that immunity on a firmer constitutional case law footing, rather than on mere executive branch say-so. This move prepares the grounds for an even more aggressive Office of Legal Counsel (OLC) immunity opinion in a future administration that is inclined, or highly motivated, to go in this direction: extending in-office immunity to investigations and not only prosecutions. And this decision has ramifications beyond the terms of office during which this immunity attaches.

The Justice Department’s Office of Legal Counsel issued these opinions on presidential immunity in 1973 and 2000, two years when the president—the boss of the office—was subject to criminal investigation and impeachment. The opinions acknowledged that the Constitution contained no express grant of such an immunity. However, OLC concluded that subjecting presidents to prosecution would fatally undermine presidents in the conduct of the duties of their office. It was reasoning from constitutional structure, but as one prominent scholar rightly pointed out, it was more a policy than a legal analysis: more OLC’s view of good constitutional sense, certainly not a mandate of constitutional text. (This was a view I shared and expressed in these pages and elsewhere.)

The department lawyers simply reasoned that given all that presidents must do—all that they represent at home and abroad—they should not have to bear the burdens and the stigma of the defense against criminal prosecution. It was a “complex” inquiry, they conceded, and it called for a “balancing” analysis. Fine lines had to be drawn. Would immunity extend to indictment, not just to a full-blown trial that could be deferred until after the president left office? Yes, OLC concluded, indictments were also precluded, as this was the “better view” of the Constitution.

For some reason, OLC determined that just an all-out investigation would not have nearly the incapacitating effect of an indictment. History has since demonstrated they were quite wrong, but the opinions stood. However, those opinions were executive branch interpretations of constitutional law binding with the executive branch but not passed on by the courts.

That is, until the Trump decision of two weeks ago.

There, in what might be termed a quiet footnote, the Court endorsed OLC’s reasoning, citing to the Department of Justice’s brief in which it acknowledged having “long recognized” that “the separation of powers precludes the criminal prosecution of a sitting President.”

The Court has made a choice here, if we assume, as we should, that every line and word of its opinion was carefully considered. It could well have noted this department conclusion but clarified that it was simply the department’s, that is, a position that OLC took. At oral argument, Michael Dreeben, representing the special counsel’s office, put it exactly that way: that presidential immunity from prosecution while in office reflects a “longstanding Justice Department position.” But the Court chose instead to stress the department’s “recognition” that immunity followed from constitutional separation of powers principles:

In the criminal context, however, the Justice Department “has long recognized” that “the separation of powers precludes the criminal prosecution of a sitting President.” Brief for United States 9 (citing A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. OLC 222 (2000).

Framed in this way, the department was not fashioning a claim about the law of presidential immunity, putting forward a “position.” Rather, it was accepting—“recognizing”—constitutional reality grounded in the separation of powers that dominates the Court’s Trump opinion.

It is not surprising that the Court would embrace the department’s “recognition” of this immunity for incumbents. Throughout the Trump opinion, the Court majority makes clear that presidents have absolute control over the Department of Justice and that all law enforcement decisions are exclusively their responsibility. “Investigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’ … and the Constitution vests the entirety of the executive power in the President, Art. II, § 1.” This view of the core constitutional functions would dictate that the department cannot separate itself from the president and charge the president against his or her will. It would effectively be the president suing himself or herself. Put another way, the department cannot assume some independent responsibility to perform this core constitutional function assigned exclusively to the president. Furthermore, the Court in Trump closes off any inquiry into a president’s motives in initiating, directing, or suppressing any investigation or prosecution. 

That’s it: The OLC opinion is reinforced by new constitutional case law. Imagine a “rule of law” president (and/or his or her attorney general) urged to call for OLC reconsideration of its 1973 and 2000 opinions establishing absolute immunity for incumbents. Such a president may feel the pressure to answer this demand and yet be less enthusiastic about any breach in this wall of immunity presidents have enjoyed for a half century. But he or she likely need not worry. OLC may now affirm its long standing view on precisely “rule of law” grounds—citing Trump v. United States, page 15, footnote 2, and connecting this “recognition” quite reasonably to the opinion’s sweeping separation of powers rationale. Once the handiwork of department lawyers, free to fashion the opinions as they saw fit, the Supreme Court can be said to have settled the question.

It is, of course, significant enough that an executive branch opinion has been recast in the constitutional terms bolstered by case law. But the importance of what the Court did on this issue becomes clearer still when connected to the other pieces of the presidential immunity puzzle.

Prior to the opinion, the Department of Justice was barred from pursuing the indictment and conviction, but not the investigation, of a sitting president. Even then, in total control of the department, presidents could order that investigations be terminated, whether they did so decisively, bringing the inquiry to an abrupt end by firing a zealous prosecutor, or by replacing him or her with a crony. But there was always a political cost. An interference with investigations would be understood to be purely self-protective, a power play rather than a vindication of constitutional principle. Nixon discovered this when he fired Special Prosecutor Archibald Cox in the “Saturday Night Massacre,” which also precipitated the resignations of his attorney general and deputy attorney general. Trump itched to fire Robert Mueller and concluded he could not withstand the fierce response he would face even from senior congressional Republicans.

Trump v. United States now provides a constitutional justification for a president attempting in this way to evade any step in criminal law enforcement. In judging the burdens of enforcement on the presidency, the 1973 and 2000 opinions never drew a satisfactory distinction between allowable investigation and impermissible indictment and trial. The Nixon, Clinton, and Trump experiences underscore that presidencies can be severely damaged or, in Nixon’s case, destroyed by investigation. Nixon took little comfort, and his presidency did not escape fatal damage, when it emerged that he was named as an “unindicted co-conspirator” in the Watergate prosecutions of senior White House aides. The concerns about the incapacitating effects of prosecution—their incompatibility with presidential performance of core constitutional functions—apply with considerable force, well supported by the historical record, to investigations as well. After Trump v. United States, may the president who cannot prosecute himself somehow be investigated against his will by the department he controls?

It would not be surprising if a future Office of Legal Counsel opinion, ordered up by a president dedicated to this mission, builds on Trump to provide the president with a constitutionally grounded excuse to prevent the Justice Department from pursuing even an investigation of alleged criminal misconduct. The 2000 opinion was just such a reconsideration. It reviewed the previous department position rendered 13 years before in the light of new constitutional case law: United States v. Nixon, Nixon v. Fitzgerald, and Clinton v. Jones. OLC then concluded that “Clinton and the other cases do not undermine our earlier conclusion that the burdens of criminal litigation would be so intrusive as to violate the separation of powers.” It seems highly probable that an OLC pressured by a president to reconsider the 2000 opinion in light of Trump would reach the opposite conclusion, especially the OLC of a department run and staffed by a president determined to dispose of any legal threat from within his or her administration. In any such reconsideration, the power to investigate could well now fall within, not outside, the constitutional bar on “criminal litigation” deemed threatening to separation of powers principles.

The Court’s decision in Trump v. Vance would not pose problems for the administration seeking to lock in this self-protective position. Trump failed in his challenge to a subpoena issued to his accounting firm in a state criminal proceeding. Consistent with United States v. Nixon, the Court found that presidents, whether under investigation or called to provide evidence in the investigation or prosecution of others, are subject to judicial process. And the Court emphasized that only the subpoena, not the prospect of personal criminal liability, was at issue in assessing the disruption this investigation might introduce into the discharge of official responsibilities. The decision has no bearing on the question of whether presidents are constitutionally subject to federal criminal investigation and prosecution by the departments of justice they control.

So, in the wake of Trump v. United States, this is what the future may hold: no federal investigations or prosecutions of presidents while in office. But the consequences range well beyond the conclusion of their terms of office. Over the course of the presidential term, and perhaps two, the un-investigated crime becomes that much harder to pursue once the president leaves office. Delay of any investigation degrades the effectiveness of prosecution. The OLC 2000 immunity opinion “recognize[d] that a presidential immunity from criminal prosecution could … make it more difficult for the ultimate prosecution to succeed.” Yet it concluded that “when balanced against the overwhelming cost and substantial interference with the functioning of an entire branch of government, these potential costs of delay, while significant, are not controlling.” Now, in the wake of the Trump decision, an OLC may conclude that the “balance” once struck no longer holds, that even investigation of a sitting president is impermissible—with the effect of undermining any potential future prosecution. Even if pursued after the president left office, the investigation and prosecution would then confront all the hurdles the Supreme Court established in the recently decided Trump case.

Of course, a president could take matters into his or her own hands, rescind the special counsel regulations that authorize the appointment of prosecutors who have the power to investigate sitting presidents, and not bother with the finer points of process and law in an OLC reconsideration. But presidents seek legal cover for controversial behaviors or conduct. The more clearly self-interested the conduct, the greater the craving for this cover: It’s just good politics. 

It bears noting that the bar on prosecution while in office applies to any alleged crime, not just the ones the Trump Court addressed that may involve more or less clear connections to official duties. A president can be impeached, for sure, as the OLC opinions recognized, for crimes for which they may not be criminally prosecuted while in office, such as sexual assault, financial fraud, or the attempted or successful commission of illegal “black bag” operations against political opponents. If Congress is unwilling to impeach, the crimes may go neither investigated nor prosecuted, until the term of office concludes—but only after time has passed and, as the OLC acknowledged, successful prosecution has become more difficult.

This is the road we have traveled since Watergate. Without any clear grounding in the Constitution, much less an express textual basis, expansive immunity for presidents, while in office and afterward, has been established.

Jack Goldsmith, my co-author of “After Trump: Reconstructing the Presidency,” and I have written about and proposed reforms to the special counsel regulations pursuant to which the department may conduct criminal investigations of the president. Goldsmith has since argued that the regulations have proved to be a failure, attempts at reform will fail, and the rules ought to be withdrawn. He made his case by appeal to experience. I did not agree. I have had second thoughts and now conclude that, after the Supreme Court immunity decision, there’s little point left to these regulations, at least insofar as they purport to authorize investigations of presidents. Perhaps they could remain in place for cases involving other senior administration officials, but it is not obvious why, once on the chopping block, any piece of them survives. 

The Archibald Coxes, the Leon Jaworskis, the Robert Muellers, the Jack Smiths: We may never see the likes of them again.