Over at the Lawfare blog, Jack Goldsmith offers some early thoughts on the Supreme Court's decision. Trump vs. AmericaLike much of what Goldsmith wrote on executive power and responsibility, this is well worth reading. [Readers may also recall that Goldsmith was one of the first to explain why the Supreme Court should review the D.C. Circuit’s decision rejecting any claim of presidential immunity.]
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The court faces a host of new questions about the scope of the president’s power. Many seem to have strong opinions about whether the court was “right” or “wrong” in granting the president a fairly broad immunity. But the standard sources of constitutional law do not allow for a definitive answer to that question. And only time will tell the ultimate question of whether the court’s decision was wise.
This case touches on a tension at the heart of the U.S. Constitution. Article II grants the U.S. president “executive power” and imposes on him the duty to “take care that the laws be faithfully executed.” These words give the president the power to interpret the law for the executive branch, to enforce it (including the judgments of the prosecutors), to supervise the operation of the government (including the dismissal of lower-level executive officials), and to direct government policy.
The same phrase, especially the “take care” clause, ensures that the president is not above the law. The great irony of the American presidency is that the same constitutional provisions that require the president to be subject to the law also give the presidency enormous power and discretion to interpret and enforce the law, thus providing a tool for an unscrupulous president to abuse the law.
The paradox is evident in the Biden administration’s prosecution of former President Trump. The case raises many difficult questions about what it means for a president to perform the essential functions of his office under the law, but they can be roughly summarized in two points: First, did Trump commit a crime in a post-election conspiracy? Second, did Special Counsel Jack Smith wrongfully threaten the presidency when he charged the former president with these crimes?
As Goldsmith observed, the special counsel’s office’s attorneys acknowledged that the case raises far more difficult questions and demands more nuanced answers than most legal commentators on cable news. In oral arguments, the special counsel made numerous concessions that you wouldn’t hear on MSNBC.
It is fair (and indeed important) to point out that there is no clear literary basis for any form of presidential immunity. However, there are several non-literary precedents that point to the contrary.Nixon v. Fitzgerald In particular), and few have called on the court to sweep away this precedent. Moreover, as Justice Barrett noted in her concurrence, there are structural reasons why some form of immunity is inevitable. If Congress cannot regulate or control the exercise of certain executive powers (the powers that fall under Justice Robert Jackson’s first box), Youngstown Steel Therefore, such exercise of administrative power cannot be considered a crime.
The Constitution was not written to restrict ineligible residents of the White House. That is ultimately the job of Congress and the voters.