Table of Contents
Follow along here.
Question Presented
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.
Argument
I. A Former President Enjoys Absolute Immunity from Criminal Prosecution for His Official Acts
This heading is the strongest portion of Part I–it answers in the affirmative, that a former President does enjoy presidential immunity from criminal prosecution and the extent is absolute.
It flubs two important points.
The claim is for only official acts and does not extend by its terms for conduct alleged to involve official acts. Those are two different things. The official act, say signing a veto, is not the same as conduct involving signing the veto. The official act is much narrower than the associated conduct. If the brief's line of reasoning is followed the question arises: which official acts are at issue here, not what conduct is alleged that involves an official act. A self-inflicted wound..
The second misstep is ignoring the qualifier alleged.
Nixon v. Fitzgerald is cited in support:
“In view of the special nature of the President’s
constitutional office and functions,” the President has “absolute Presidential immunity from [civil] damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
The bold is bracketed, which is the legal citation convention for something added to a direct quotation. Failing to mark it would be an officially big deal. But it's a head fake.
There is as yet no attempt to distinguish the question presented, which was criminal prosecution, not damages liability.
A swing and a miss.
Not content with implicitly asking for credit drawing attention to the head fake, as they were bound to anyway, they follow the citation to Fitzgerald with the parenthetical
(quoting Barr v. Matteo, 360 U. S. 564, 360 U. S. 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable ...")
Well, yes, the Nixon v. Fitzgerald does cite Barr. But.
But. But the devil in the details. Particularly in the context in which the the quotation appears:
When judicial action is needed to serve broad public interests – as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra [emphasis added] – the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not. [Footnote 37]Page 457 U. S. 755. In defining the scope of an official's absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity's justifying purposes [emphasis added]. Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U.S. at 438 U. S. 508-517; cf. Imbler v. Pachtman, 424 U.S. at 424 U. S. 430-431. But the Court also has refused to draw functional lines finer than history and reason would support [emphasis added]. See, e.g., Spalding v. Vilas, 161 U.S. at 161 U. S. 498 (privilege extends to all matters "committed by law to [an official's] control or supervision"); Barr v. Matteo, 360 U. S. 564, 360 U. S. 575 (1959) (fact "that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable . . ."); ...
A swing and a miss. At a wild pitch. The bolded language may turn on their case.
The weakest part of the argument, that absolute immunity applies to criminal, as well as civil, matters, just took friendly fire. There are public interests in ongoing criminal prosecutions, merely private is a different matter [than criminal], and functional lines (of the scope of the office) are drawn on "history and reason"]. Opening either door is potentially a loser, and holding fire until later would have been better advocacy.
I did analysis of briefs in the farm teams to the minor leagues. I was an administrative law judge for the California Public Utilities Commission. I knew to expect some arm waving and posturing, but past a point, it pissed me off because it made me feel that I was being taken for a fool. That made me have to take pains to counteract the bias that produced against the offending party to avoid the equivalent of reversible error. I had a pretty good track record, my proposed findings of fact and conclusions of law were adopted by the appointed Commissioners in all but two cases. In the one, my opinion reversal was the vehicle for a spontaneous change of policy, which was their call but not something for me to have advanced. In the other, having to do with the a weird case actually dictated by federal law, I was ultimately "upheld" by the Supreme Court in the most obscure possible way. My work passed from being the main event, to the precard, to the stats and on to a footnote several steps before it came up. But still. Told you so.
The brief continues with
This conclusion [of absolute Presidential immunity from [civil] damages liability for acts within the ‘outer perimeter’ of his official responsibility] rests on the Constitution’s text and structure, the common law, historical practice, the Court’s precedents, and considerations of public policy.
That again begs the question, which is simply this:
Do the same considerations underlying the case for civil immunity for a President's acts within the outer perimeter of his duties apply with equal force to whether a former President enjoy[s] presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?
That's 2-0 for the lead-off batter.
What this argument should have been
In view of the special nature of the President’s constitutional office and functions, the absolute immunity of a former president from criminal prosecution rests on the same basis as the “absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald.
This formulation avoids both strikes. It invokes the same precedent but only within the limits of its reasoning, not its holdings. It introduces the concept of absolute immunity without prematurely arguing it.
At this point it is premature arguing whether the "outer perimeter" is a legal, factual or mixed question within the meaning of the framing of the question presented
conduct alleged to involve official acts
Consistent with the entire appellate framework, matters before the Supreme Court that turn on facts are decided on the basis that the allegations in a criminal complaint are assumed to be true. In this case there is only a single allegation of conduct involving official acts
The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant's fraudulent elector plan by using the Justice Department's authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states' legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.
If the Court were to rule that absolute immunity attaches only to allegations (not evidence) involving official conduct the result would be that Count One would be invalid insofar as it involved
Trump's communications with Co-conspirator 4, Jeffrey Clark, a Justice Department official. (That does not necessarily insulate Clark, however, from prosecution.)
None of the other allegations on their face involve official conduct. Since the whole purpose of the collateral order doctrine, as articulated by the DC Circuit's opinion, is to vindicate a right not to be tried at all, it follows that the right can only exist within the narrow confines of what is alleged. And what is alleged is not a matter of fact for the jury but a matter of law for the judge. In other words, it does not matter whether an allegation is true. It only matters that if the allegation is assumed to be true, does it involve official conduct?
Wrap up
Next will be the support given in the rest of Part I
A. The Executive Vesting Clause and Separation of Powers
B. The Impeachment Judgment Clause Confirms Immunity
C. “The Presuppositions of Our Political History”
D. Common-Law Immunity Doctrines
E. Functional Considerations Rooted in the Separation of Powers
F. Arguments to the Contrary Are Meritless
So far, the advocacy has been dicey.
