Having criticized the majority opinion in Trump v. United States, let me move on to Justice Barrett’s concurring opinion.
Justice Barrett is more concerned about the legitimacy of the reasoning than is the majority. And she ends up with a much narrower rule of presidential immunity. Since I criticized the majority opinion for its reasoning and its unjustified establishment of a presidential immunity, Barrett’s opinion is superior. But Barrett’s opinion still has problems.
Barrett’s opinion has four basic moves.
1. First, she argues that certain of the President’s powers are conclusive and preclusive. Therefore, Congress cannot regulate them and the President cannot be made criminally liable for their exercise. For other official actions of the President, the President’s criminal liability turns on a two step analysis.
2. Under the first step, one must ask whether the criminal statute actually is best interpreted as extending to the President. Some statutes might apply to ordinary people but not to Presidents.
3. If the statute does apply to the President, one reaches the second step. The court then asks whether the prosecution poses no “danger of intrusion on the authority and functions of the Executive Branch” – the standard that Barrett derives from Nixon v. Fitzgerald’s treatment of immunity in civil suits. The answer will depend on the specifics of the case.
4. While a district court determination that the defendant can be prosecuted will normally allow the prosecution to proceed, Barrett argues that the President is entitled to an interlocutory appeal on whether the criminal statute applies to him and whether he has immunity.
On point #1, I believe that Barrett is probably mistaken. I think it is unlikely that the President’s so called conclusive and preclusive authority actually cannot be regulated. As I have previously mentioned, it is not clear to me that Congress could not criminally prohibit the President from taking a bribe to give a pardon. This involves a regulation of the pardon power. These so called conclusive and preclusive powers may severely restrict Congress’s powers but I do not believe they are entirely insulated from congressional regulation. One probably needs to ask the question whether the criminal statute is constitutional in each case.
Barrett is not clear on this point since she appears to argue that a President taking a bribe could be prosecuted. Her justification is that the Constitution "does not authorize a President to seek or accept bribes." But if the President takes a bribe to issue a pardon, the bribe-for-pardon action would appear to be the regulation of the pardon power and satisfy Barrett's support for absolute immunity for actions "within [the President's] 'conclusive and preclusive' authority and closely related acts." At the least, Barrett owes us some explanation for her views here.
On point #2, I agree with Barrett. One must first conclude that the statute reaches the conduct of the President. While I do not believe that the courts should be applying a substantive canon that avoids extending a statute to the President, Barrett also rejects that canon.
On point #3, I disagree with Barrett as an original matter but acknowledge that there is a reasonable argument based on precedent for applying the test in Fitzgerald here. The problem is that I generally believe courts should not be expanding nonoriginalist precedent like Fitzgerald to new situations. But there are enough precedents in this area recognizing some kind of presidential immunity to make her position reasonable, even if not the ideal originalist position.
On point #4, I acknowledge that precedent supports Barrett, but once again one might question the correctness of that precedent. It is true that immunity claims generally allow the defendant an interlocutory appeal. But it is my understanding that this interlocutory appeal is based on the collateral orders doctrine, which was an atextual, made up doctrine by the Supreme Court. So once again Barrett relies on a nonoriginalist precedent. Still, it seems unrealistic to expect the Court to simply overrule the collateral orders doctrine now in a single case (especially where no one argued for that result).
In sum, Barrett’s position is far superior to the majority’s, and can be defended as reasonable based on a combination of original meaning and precedent, even if the original meaning claim about conclusive and preclusive authority is not quite persuasive and the cases relied upon are nonoriginalist precedents.
Posted at 8:00 AM