In Trump v. United States, the actual distance between the majority and dissent is not vast. As Justice Barrett's concurrence points out, there is "substantial agreement" on certain points. Justice Sotomayor, in dissent, wrote that "The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue." The disagreement really turns on how the Chief Justice chose to address other issues. To that end, the dissent chose very strong rhetoric to illustrate how misguided the majority opinion was.
Three rhetorical themes were repeated: abuse of power, personal gain, and corruption.
First, Justice Sotomayor referred three times to the concept of an "abuse of power":
- Ultimately, the majority pays lip service to the idea that "[t]he President, charged with enforcing federal criminal laws, is not above them," but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.
- On the majority's view (but not Trump's), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to "at least presumptive" criminal immunity for those acts.
- Second, the majority's new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.
Long-time readers may recall that the first Trump Impeachment was premised on a charge of "abuse of power." Seth Barrett Tillman and I acknowledged that "abuse of power" could form the basis of an article of impeachment, but we explained that this term was exceptionally difficult to define with regard to politicians. I observed in the New York Times:
The House seeks to expel Mr. Trump because he acted "for his personal political benefit rather than for a legitimate policy purpose." Mr. Trump's lawyers responded, "elected officials almost always consider the effect that their conduct might have on the next election." The president's lawyers are right. And that behavior does not amount to an abuse of power.
Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable "abuse of power."
Justice Sotomayor bandies about the concept of "abuse of power" but I think this framing creates more problems than it solves. Whether that power is being "abused" is circular. If the President actually has that "core" power, then it would be immune; he would not be abusing the power, he would be exercising it. Moreover, determining whether a power is being abused will largely turn on an assessment of the President's motivations, and his policy preferences. This concept cannot be defined with any sort of neutral principles.
Second, Justice Sotomayor repeated the refrain that the President cannot act for "personal gain."
- When Presidents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority overlooks that paramount interest entirely.
- Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.
- Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
As I noted in the Times, when politicians pursue their conception of the "public good," they invariably will gain personally from it–if nothing else, through electoral success. A president who successfully accomplishes some policy goal will reap the benefits at the ballot box or the polls. If by "personal gain," Justice Sotomayor is referring to the proverbial briefcase full of cash–the quid pro quo–then we are trending towards the bribery hypothetical. But I think all sides agree that bribery would not be subject to immunity. So discussions of "personal gain" outside of the bribery context needs to be further developed.
On that point, the majority provides the correct rejoinder: the President, as the apex elected official, has the power to decide what is in the common good:
And the President's broad power to speak on matters of public concerndoes not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President's view of the public good.
Roberts is exactly right. The buck stops there. I think those who served in the executive branch understand this concept intrinsically. Perhaps it makes sense then that Justice Barrett, the only conservative appointee who did not serve in a presidential administration, declined to join the majority's opinion in full.
Third, Justice Sotomayor turns to the theme of corruption. She uses that concept to strong rhetorical effect. Sotomayor writes:
- Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.
- Whether described as presumptive or absolute, under the majority's rule, a President's use of any official power for any purpose, even the most corrupt, is immune from prosecution.
Last week I noted that the Court really does not want to define corruption. And Justice Sotomayor does not define it here. She simply assumes readers will share her understanding of that concept. As a legal matter, if conduct is immune, the motivations are irrelevant. Would Justice Sotomayor probe an official's motivations to determine whether immunity attached? That is certainly not how immunity analysis is done in other contexts.
And, once again, Sotomayor's points harken back to the first Trump impeachment. Tillman and I wrote in December 2019:
However, impeachment for an "abuse of power" based solely on "corrupt" intent gives Presidents no notice, whatsoever, of what is expected of them. There is a nearly infinite range of conduct that can fall within this category. The House report explains, "[t]here are at least as many ways to abuse power as there are powers vested in the President." Virtually anything the President does can give rise to impeachment if a majority of Congress thinks he had an improper intent.
There is nothing new under the sun. During the first impeachment, Trump was alleged to have abused his power for personal gain based on corrupt motives. Justice Sotomayor's dissent in Trump v. United States would deny immunity when an official abuses his power for personal again based on corrupt motives. While the former charge arguably may have been suited for the quasi-political impeachment context, the latter charge does not belong in a federal court. Even where I struggle with the Chief's opinion on originalist grounds, on pragmatic grounds it is solid.
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