The Core Issues in Trump v. United States: One Road Map

This essay provides a road map of the core legal issues in Trump v. United States as I see them. It is just a road map; I do not opine on how the Court should resolve most of the issues in the case. I am pretty sure that the Court will reject former President Trump’s immunity claim. But how the Court crafts its immunity analysis, and what collateral issues it addresses along the way, are enormously important to the impact of the Court’s decision on future presidencies. This impact will, I think, be a central issue at oral argument and a central consideration in the drafting of the opinion. I address the impact issue at the end of this lengthy piece, after first laying out how I think the various legal doctrines in the case fit together.

The Issues

Special Counsel Jack Smith indicted Trump for conspiring with a Justice Department official and with several private persons to overturn the results of the 2020 presidential election through public statements and through communication with and pressure on state officials, fraudulent state electors, Department of Justice officials, Vice President Pence, and the joint session of Congress. The indictment alleges that Trump conspired to defraud the United States in violation of 18 U.S.C. § 371; conspired to obstruct an official proceeding in violation of 18 U.S.C. § 1512(k); obstructed and attempted to obstruct an official proceeding in violation of 18 U.S.C. §§ 1512(c)(2) and 2; and conspired to deny the rights of persons to vote and have their votes counted in violation of 18 U.S.C. § 241.

The Supreme Court granted certiorari on a question that it crafted: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The immunity question concerns only Trump’s “official” presidential acts, as opposed to his private-capacity conduct. The courts below ruled that Trump lacks immunity for any alleged official acts but did not determine which of Trump’s alleged bad acts were official and which were private. (The U.S. Court of Appeals for the D.C. Circuit in dicta doubted that “‘all five types of conduct alleged in the indictment constitute official acts,’” as Trump had alleged.)

To understand what is at stake in the case, one needs to unpack three issues and understand their relationship to one another.

First, do the four criminal statutes Trump allegedly violated apply to the president? The § 1512 crimes apply to “whoever” does the bad acts; and §§ 241 and 371 apply to “persons” who commit the offenses. The applicability issue is whether these generally worded statutes, properly construed, govern official presidential action. A second-order applicability question is which official presidential actions do they apply to—all of them?; some subset, and if so, which one?; acts in which presidential power is not unduly burdened? (Another applicability issue, not examined here, is the question raised in Fischer v. United States on whether and how § 1512 applies to Jan. 6 events.)

Second, if the statutes govern some presidential conduct, are they constitutional, and if so, to what extent? This constitutionality issue is whether Congress has the authority to regulate the presidential actions in question, which reduces in this context to whether certain presidential actions implicate exclusive presidential power that Congress cannot regulate.

Third, if the statutes apply to the president and are constitutional, does Trump have immunity from prosecution for their violation? This immunity issue is the one formally before the Court. A second-order immunity question concerns which presidential actions should receive immunity. For example, assuming some immunity attaches, does it attach to all official acts, or a subset? And how would one determine which acts are official and which are private?

I will begin by analyzing the third question, the immunity issue explicitly contemplated by the question presented. Then I will explain the relevance of the first two.

Immunity

Trump’s claim that a former president enjoys absolute immunity from prosecution for official acts is one of first impression because no former president has previously been indicted. The Court will likely resolve the claim based on a combination of first principles, historical practice (for example, President Ford’s pardon of President Nixon), judicial precedents from other contexts, and predictions about the impact of the articulated doctrine on future presidencies.

Trump’s arguments for the criminal immunity of former presidents based on Marbury and other cases about limits on federal court coercive measures against sitting presidents are unconvincing, largely for reasons stated in the special counsel’s brief. Also unconvincing is Trump’s reliance on the Impeachment Judgment Clause, Art. I, § 3, cl. 7, to “confirm” his broad immunity argument. I find no way to read the words of that clause, as Trump does, to make impeachment and conviction a prerequisite for criminal prosecution of a president. (Trump has a more powerful argument under the clause for a double jeopardy bar to criminal prosecution after impeachment and Senate acquittal, as this 2000 Office of Legal Counsel (OLC) opinion makes clear. But that issue is not before the Court. The courts below rejected the double jeopardy argument based on the clause, and Trump signaled that he planned to seek certiorari on it before the Court granted certiorari on its own, limited to the immunity issue. As best I can tell, Trump has until May 6 or so to file a petition for certiorari on the double jeopardy issue unless he seeks an extension.)

Trump’s argument under Nixon v. Fitzgerald is more serious. That decision held that an ex-president has immunity from civil damages suits for the outer perimeter of his official acts. The immunity rule in Nixon v. Fitzgerald, like many foundational separation of powers decisions, is (my emphasis) a “functionally mandated incident of the President’s unique office” that rests on a judicial “balance” of the “constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Whenever the Court does functional analysis that involves a balance of constitutional interests in a new context, it is hard to predict how the balance will come out. Yet the balancing factors considered alone point pretty clearly against Trump’s immunity claim.

In Nixon v. Fitzgerald, the Court began with the burden on the presidency from civil damages suits. As it later explained in Clinton v. Jones, the “dominant concern was with the diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” The Court emphasized in Fitzgerald that the president has unique responsibilities and thus must have “the maximum ability to deal fearlessly and impartially with the duties of his office” (cleaned up). It worried that private damages suits posed a large burden because the president’s actions concerned so many people who can theoretically sue. The Court added that such suits did not “serve broad public interests” that outweighed the burden on presidential prerogatives. The Court concluded that, due to the “special nature of the President’s constitutional office and functions, ... Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility” was warranted.

This balance probably cuts differently when a former president is subject to criminal trial. Nixon v. Fitzgerald noted that “there is a lesser public interest in actions for civil damages than ... in criminal prosecutions.” And on the other side of the balance, the likelihood of prosecution (and thus of diversion) is significantly diminished (compared to civil damages suits) because a prosecution can be initiated by only one institution, the Justice Department, which is governed by legal and norm-based constraints to action. Some members of the Court might think it relevant that criminal penalties are graver than civil damages and thus a greater threat to presidential decision-making on that dimension, but Nixon v. Fitzgerald did not credit that view.

This in a nutshell is the special counsel’s argument under Nixon v. Fitzgerald, and I find it persuasive as far as it goes. But I would note two caveats, the second of which is crucial.

Caveats on Immunity

The first caveat goes to the barriers to prosecution of a former president. These barriers are surely higher than ones to private damages suits. But the norms here might be shifting in light of the two federal prosecutions of Trump (which, justified or not, are unprecedented); of Trump’s promised retaliations if he wins the presidency; and of the general decline in norm-based constraints on federal government action. As a result, it isn’t clear how much weight the Court can put on the institutional constraint of future Justice Departments. 

The second caveat is more important to the disposition of the case. Nixon v. Fitzgerald was a private civil suit against the president via causes of action implied under the Constitution and federal statutes. “In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts,” noted the Court. And then it added in footnote 27:

In the present case, we therefore are presented only with “implied” causes of action, and we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States. This approach accords with this Court’s settled policy of avoiding unnecessary decision of constitutional issues. Reviewing this case under the “collateral order” doctrine, … we assume for purposes of this opinion that private causes of action may be inferred both under the First Amendment and the two statutes on which respondent relies. But it does not follow that we must—in considering a Bivens ... remedy [under the Constitution] or interpreting a statute in light of the immunity doctrine—assume that the cause of action runs against the President of the United States. ... Consequently, our holding today need only be that the President is absolutely immune from civil damages liability for his official acts in the absence of explicit affirmative action by Congress. We decide only this constitutional issue, which is necessary to disposition of the case before us.

Footnote 27 shows why the immunity issue in Trump v. U.S. is inextricably tied to the applicability and constitutionality issues noted above. The Court in Nixon v. Fitzgerald limits the broad presidential immunity it recognized in civil cases to situations in which Congress has not specified that the statutes invoked by plaintiffs apply to the president. It suggests that such immunity might not be available, or be so broad, if Congress had expressly applied such statutes to the president. But it also states that its immunity ruling rests on a concern about applying statutes of general applicability to presidential action for fear of impinging on the president’s Article II power. Importantly, the Court appears to imply that if it had determined that President Nixon did not warrant immunity, it would have needed to face the applicability and constitutionality issues.

Thus if the Court in Trump v. United States rules that Trump lacks criminal immunity, it might need to consider the applicability and constitutionality issues since the generally worded criminal laws at issue here do not expressly refer to the president. (These statutes differ from the small number of criminal statutes where Congress expressly includes or expressly excludes applicability to the president.) The close relationship between the immunity issue and the applicability and constitutionality issues almost certainly justifies their consideration in the case as entailed by the question presented even though it is contested whether Trump raised the issues in the lower courts. Rule 14 states that the question presented “is deemed to comprise every subsidiary question fairly included therein,” and the Court has stated that an issue is “fairly included” if it is “inextricably linked” to the question presented. Consistent with this conclusion, the Trump brief, the special counsel’s brief, and an important amicus brief address this cluster of issues at some length. (Indeed, the special counsel, perhaps recognizing the issues’ importance for this case and for future presidents, treats them with more seriousness than does Trump.)

How to Think About the Applicability and Constitutionality Issues

Here is how I think about the applicability and constitutionality issues.

1. Basic Legal Issues

The executive branch recognizes a constitutionally based clear statement principle, with important qualifications, to determine whether generally worded statutes, including criminal statutes, apply to the president. This principle turns on a combination of the applicability issue and the constitutionality issue.

Office of Legal Counsel head Walter Dellinger described the principle in a 1995 opinion in very broad terms: “[G]eneral statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role” or “would involve a possible conflict with the President’s constitutional prerogatives” (emphasis added). Dellinger later explained that the presidential clear statement principles flow from the “canon of avoiding serious constitutional questions” and the “constitutional principle of separation of powers.” It reflects a worry, as Deputy Attorney General Laurence Silberman put it, that the criminal law could “disempower [the president] from performing some of the functions prescribed [by] the Constitution.” And it reflects the idea, as Special Counsel Robert Mueller wrote, that “Congress should not be assumed to have altered the constitutional separation of powers without clear assurance that it intended that result.” This worry, and this idea, appear very close to the ones reflected in footnote 27 of Nixon v. Fitzgerald.

As I recently explained, the executive branch principle is grounded in Supreme Court precedent but has been applied to matters the Court has not yet considered:

The main case is Franklin v. Massachusetts (1992), where the Court reasoned that “[o]ut of respect for the separation of powers and the unique constitutional position of the President,” the term “agency” in the Administrative Procedure Act (APA) did not apply to the president—even though the express exceptions to the term did not include the president. The Supreme Court cited “respect for the separation of powers and the unique constitutional position of the President” as a basis for requiring “an express statement by Congress” to subject presidential decisions to the APA’s abuse of discretion standard. In addition, in Public Citizen v. Department of Justice (1989), the Supreme Court applied the clear statement rule (among other tools) to determine that the president and Justice Department did not “utilize” the American Bar Association under the Federal Advisory Committee Act when it sought its advice on judicial nominations. The Court said that reading “utilized” to apply to the executive’s relationship with the ABA would raise serious questions about whether the statute “infringed unduly on the President's Article II power to nominate federal judges.” The Court added: “[W]e are loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils.”

And of course in addition to these precedents are the implications of footnote 27 in Nixon v. Fitzgerald.

It is an entirely open question how the Court will apply its precedents to the criminal law context in Trump v. United States. There are too many possibilities to run through in this already-too-lengthy piece. The special counsel accepts (as he arguably must) that the Justice Department’s “clear statement principle,” with important qualifications described below, is the right one. He argues only that it “cannot justify the blanket presidential exception from the criminal law that [Trump] seeks” and acknowledges that it should inform “statutory construction and as-applied constitutional challenges.” I believe that this executive branch principle is a plausible candidate for where the Court will land and, thus, will analyze that rule.

Applying versions of the principle in the criminal and civil contexts, the Justice Department has concluded that a statute that prevents closure of federal buildings to memorialize a deceased official does not apply to the memorialization of a president (William Rehnquist, OLC); the criminal conflict-of-interest statute that applies to an “officer or employee of the executive branch” does not apply to the president (Laurence Silberman, deputy attorney general); a consumer report notice requirement that applies to any “person” does not apply to the president (Dawn Johnsen, OLC); a statute prescribing consanguinity limits of judicial appointments does not apply to the president’s appointment of judges (Walter Dellinger, OLC); and the criminal contempt statute does not apply to presidential assertions of executive privilege (Theodore Olson, OLC). Sometimes the Justice Department casts statutory exemptions of executive branch officials (as opposed to the president) on what might be viewed as an as-applied rather than categorical basis. The department concluded that the criminal Anti-Lobbying Act—which applies to “Whoever” as “an officer or employee of the United States” violates the act—did not apply to executive branch officials in contexts that would raise “serious constitutional problems” related to Article II (William Barr, OLC).

These are broad pro-executive decisions, perhaps too broad for the Court, but the principle on which they rely contains an important qualification that the Court might be drawn to. As Silberman originally stated it, the conflict of interest statute did not present a “situation like the bribery statute ... where from the nature of the offense charged, no one, however exalted his position, should safely feel that he is above the law.” A decade later, Dellinger generalized Silberman’s analysis to conclude that the clear statement rule “does not apply with respect to a statute that raises no separation of powers questions were it to be applied to the President.”

It is fair to say that the Justice Department has never explained in any detail how the clear statement principle and the separation of powers qualification operate in tandem.

2. Application in Trump v. United States

Here is how I think these principles apply to Trump v. United States. Warning: many uncertainties here.

A. Immunity

I have already explained why I doubt the Court will read separation of powers principles to confer immunity from criminal prosecution by analogy to Nixon v. Fitzgerald—the balance comes out the other way. But that means that the Court may need to face the implications that it skirted in footnote 27: If there is no immunity on the assumption that generally worded statutes apply to the president (as in Nixon v. Fitzgerald), then the Court may consider “constitutional issues” that it deemed “unnecessary” to resolve there about whether and how the generally worded criminal statutes apply to the president.

B. Official Acts

If the Court proceeds to address the constitutional and applicability issues, then it may address, or at least provide guidance on, which, if any, of Trump’s alleged crimes implicate “official” presidential acts. The Court has never really explained how to distinguish official from private presidential acts. We know from Nixon v. Fitzgerald that the Court thought that President Nixon’s alleged role in the firing of Air Force official Ernest Fitzgerald was an action “taken in the former President’s official capacity during his tenure in office.” But it never explained why.

A distinguished panel of the D.C. Circuit inBlassingame v. Trump reviewed the relevant Supreme Court and lower court precedents and defined the outer perimeter of official acts under Nixon v. Fitzgerald in the civil context as follows:

[A] President’s official responsibilities encompass more than just those acts falling within the office’s express “constitutional and statutory authority.” Official responsibilities also include “discretionary acts” within the “concept of duty” associated with the office. Put somewhat differently: an act lies within the outer perimeter of an official’s duties if it is “the kind of act not manifestly or palpably beyond [the official’s] authority, but rather having more or less connection with the general matters committed by law to his control or supervision.” (cleaned up and citations eliminated)

This is not the clearest test in the world, but I am not sure what a better formulation would look like.

It is hard to say how a test of this sort will apply to Trump’s alleged criminal acts. Its applicability very much depends on the level of abstraction at which Trump’s acts are described. Did Trump’s efforts (as the indictment states) “to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature” involve a presidential responsibility concerning law enforcement or a private effort to gain office? What about Trump’s communications with Pence, and with state officials? The same question even arises with respect to Trump’s alleged criminal acts involving private parties because, as Marty Lederman notes, “a President can communicate with nongovernmental actors as part of his or her official duties, and urge them to take certain actions.” Lederman thinks all but Trump’s Justice Department communications are private acts, but the length and complexity of his analysis gives a flavor of the difficulty of the level-of-abstraction problem.

C. Applicability and Constitutionality

In addition to the official acts question, the Court may (if the earlier analysis is correct) apply separation of powers principles to determine whether and how the generally worded criminal statutes apply to official presidential acts. Here the Court has three basic options, none of which is obviously compelled by its case law or even the executive branch precedents. It could rule that the criminal statutes in question do not apply to the president, full stop, absent a plain statement from Congress. Or it could rule that the statutes apply to the president in full because they—like the Silberman bribery example—raise no separation of powers problem in any application. I doubt the Court will take either of these polar approaches. Instead, I think the Court will adopt some version of a middle-ground position and say that the plain statement rule does not apply to the extent that the statutes as applied to Trump raise no separation of powers questions.

This last approach would require the Court in a fine-grained way to determine which applications of the statutes burden the presidency. It would also have to figure out how much of or what type of burden counts. The Justice Department precedents are all over the map on this point. Recall that Dellinger for the executive branch maintained that generally worded statutes did not apply to the president if they would “arguably limit the President’s constitutional role” or would “involve a possible conflict with the President’s constitutional prerogatives.” But in the same opinion he also stated that “a statute that does not by its express terms apply to the President may not be applied to the President if doing so would raise a serious question under the separation of powers” (emphasis added).

D. Resolve or Remand?

It is conceivable that the Court will reject Trump’s immunity claim based on the functional balancing approach of Nixon v. Fitzgerald, stop there, and remand the case without examining the applicability and constitutionality issues. I doubt it will do that, however, since the latter issues are inextricably tied to the immunity analysis; and since the implications for the legal analysis are fully briefed; and since—a vital issue explored below—the applicability and constitutionality issues are deeply relevant to the impact of the Court’s ruling on future presidencies.

Addressing and providing legal guidance on these questions is one thing. Applying that guidance to the facts of the case is another. The questions are debated to various degrees in the briefs but were not addressed by the courts below. In a normal case it would be highly unlikely that the Supreme Court would address such fact-bound issues in the first instance. The Court would instead normally remand the case for the courts below to apply the legal analysis to the case. Such a remand, however, would certainly delay the trial beyond the presidential election. One thus might expect that Trump would urge this course of action and that the special counsel would resist it.

A Huge Underlying Consideration: Impact on Future Presidents

The impact of the Court’s decision on future presidencies is a very important consideration that will likely inform all the Court’s decisions on the issues outlined above.

The Court always considers this impact when a case implicates the president’s “unique position in the constitutional scheme.” It did this, for example, in Nixon v. United States, Clinton v. Jones, Nixon v. Fitzgerald, and Trump v. Vance. Such important cases come to the Court sporadically and have an outsized effect on the executive branch and its interactions with other branches. Even though Trump v. United States involves immunity for a former president, it could significantly affect the behavior of the current and future presidents in exercising constitutional presidential prerogatives. And it can have this impact in ways that the Court might not ever, or for a long time, have a chance to revisit or adjust.

The effective applicability of the statutes that Trump is charged with violating—whether and how they apply to the president, whether they are constitutional in those applications, and what immunity if any the president receives for their violation—are issues of great consequence to the presidency. The president every day operates with and through executive branch subordinates to make many decisions that impact operations across the government, all manner of law enforcement, and relations with Congress. These actions, even by the most virtuous of presidents, are by their nature often self-serving and very political, and frequently involve pressure, threats, coercion, exaggeration, and half-truths in the wielding of executive branch power.

Once one puts a microscope on these everyday presidential actions, it is easy to see many of them as potentially implicating the vague criminal prohibition on conspiring to commit any offense against the United States or one of its agencies (18 U.S.C. § 371), or the potentially very broad criminal prohibition on obstructing an official proceeding (18 U.S.C. §§ 1512(c)(2) and 1512(k)).

The Supreme Court need not imagine these implications. All it has to do is to read the 182-page Volume II of Special Counsel Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election. There Mueller laid out in great detail how one of the statutes at issue in Trump v. United States, 18 U.S.C. § 1512(c)(2), would apply to presidential action if not limited or qualified by immunity, significant narrowing via constitutional avoidance, or the plain statement rule. That statute provides, in italicized part:

Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.

I argued at length back in the day that the Mueller report misapplied the executive branch plain statement rule in applying this statute to presidential official acts. But the report’s singular virtue for present purposes is that it shows how deeply § 1512(c)(2) would cut if it applies to presidential action.

Mueller concluded that an obstructive act includes “‘all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed,’” and that even an “‘effort to influence’ a proceeding”—which includes any action that “‘blocks, makes difficult, or hinders’” the proceeding, even in a “‘subtle or circuitous’” way—counts. And he concluded that a defendant acts with the requisite corrupt intent if he or she acts “‘knowingly and dishonestly’” or “‘with an improper motive,’” which includes an intent to “obtain an ‘improper advantage for [him]self or someone else, inconsistent with official duty and the rights of others.’”

Consider how Mueller applied these principles to Trump’s firing of FBI Director James Comey. Mueller concluded that the firing “would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding” the Russia investigation; and that the nexus element for obstruction “would be satisfied by evidence showing that a grand jury proceeding or criminal prosecution arising from an FBI investigation was objectively foreseeable and actually contemplated by the President when he terminated Comey.” He also indicated that the requisite corrupt intent requirement would be satisfied by evidence that the president intended to suppress not just evidence of presidential crimes but also evidence “that would give rise to personal and political concerns.” Here we have an important presidential power exercised in relation to an official proceeding that Mueller claims implicates the terms and requirements of § 1512(c)(2). The statute on this view could potentially apply to any presidential firing of an executive official in connection with that official’s ongoing executive performance.

But the Mueller obstruction-of-justice analysis sweeps much broader than that. As Mueller stated candidly, the “President’s position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses—all of which is relevant to a potential obstruction-of-justice analysis.” Any executive action by the president with an “improper motive”—whatever that means—that benefits the president in connection with an “official proceeding” potentially implicates § 1512(c).

One can imagine all manner of possible narrowing constructions of § 1512(c) to avoid its broad applicability to presidential actions. Mueller says (pp. 173-176), for example, that as-applied applications of separation of powers principles and the “corrupt intent” requirement would ensure that § 1512(c) does not “impermissibly undermine the President’s ability to perform his Article II functions.” I have previously explained why I find these arguments entirely unpersuasive.

The important takeaway from the Mueller report, however, is not whether it drew the applicability and constitutionality lines in the right place in interpreting § 1512(c). The important points are (a) § 1512(c) potentially applies to a vast swath of presidential action and requires narrowing constructions of some sort to prevent burdening important everyday presidential actions, and (b) the Court needs to consider this potential burden in assessing the applicability and constitutionality issues as applied to § 1512(c) and the other statutes that Trump allegedly violated. The combination of (a) and (b) are why Trump v. United States is such a hard case and a potentially monumental decision for presidential power.

* * *

The Trump indictment alleges grotesque abuses of presidential power. But the Court cannot say “Yeah, that’s really bad, no immunity” and let the case go forward on that simple basis. It has to consider how allowing a former president to be prosecuted and possibly convicted for Trump’s bad acts might impact a whole range of less bad acts by the current and future presidents. Figuring out that impact, and how to craft the opinion so as not to unduly hamstring other presidents, is one of the Court’s central tasks in Trump v. United States.