At Volokh Conspiracy, Josh Blackman: Presidential Bribery and the Clear Statement Rule in Trump v. United States: Revisiting Issues From The First Trump Impeachment and the Mueller Investigation. From the introduction:
[On 4/25] the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency.
First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, countered that a criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President.
Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. ยง 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct. …
I am particularly interested in the supposed clear statement rule, with my new-found interest in the originalist aspects of substantive canons. On the clear statement rule, Professor Blackman comments:
The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.
Kavanaugh asked John Sauer, Trump's counsel, if "a clear statement in the statute covering the president" is required "if the president's official acts are going to be criminalized." Kavanaugh later observed that "a clear statement in the statute referencing the president" was needed "so that the president is on notice and can conduct himself or herself accordingly." Another rationale for the clear statement rule, Kavanaugh explained, is "to make sure Congress has thought about" what it would mean to subject the President to criminal liability.
That formulation appears to regard the (supposed) clear statement requirement as a substantive canon — that is, the Court will construe a statute lacking a clear statement narrowly not to apply to the President, even if absent the clear statement rule the best reading of the statute's text would apply it to the President. I think that is correct, and it makes the presidential nonapplicability canon (if we can call it that) parallel a view of the major questions doctrine as a substantive canon.
Posted at 6:10 AM