Many are shocked — understandably—at the suggestion seemingly embraced by some justices on the Supreme Court that at least when the president is exercising “core” presidential power, he cannot be held criminally responsible for “crimes” committed through his “official acts.”
This view, however, is familiar. It was most famously articulated by Richard Nixon in his 1977 interview with David Frost. Here’s the relevant part of that interview:
Frost: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.
These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president’s approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.
So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.
Nixon: Well, when the president does it that means that it is not illegal.
Frost: By definition.
Nixon: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
Frost: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there’s no subtle way to say that there was murder of a dissenter in this country because I don’t know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president’s judgment?
Nixon: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA’s covert operations are concerned, as far as the FBI’s covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don’t know whether it can be done today or not.
Frost: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, “It’s quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation’s security are lawful, but which if undertaken by private persons, are not.” What, at root, did you have in mind there?
Nixon: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, “Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.”
Now that’s the kind of action I’m referring to. Of course in Lincoln’s case it was the survival of the Union in wartime, it’s the defense of the nation and, who knows, perhaps the survival of the nation.
Frost: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?
Nixon:This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it’s true that we didn’t have the North and the South —
Frost: But when you said, as you said when we were talking about the Huston Plan, you know, “If the president orders it, that makes it legal”, as it were: Is the president in that sense — is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?
Nixon: No, there isn’t. There’s nothing specific that the Constitution contemplates in that respect. I haven’t read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we’re all talking about.
I still remember watching this interview. I was sitting in some basement with a tiny black and white television set. I was not yet 16. And I remember being astonished by the claim made by Nixon then (and Trump’s lawyers Thursday):
“[W]hen the president does it that means that it is not illegal.”
I was not the only one astonished by that claim. The quote became a meme about Nixon; he was ridiculed for the idea that a president’s doing something meant it was “not illegal.” And indeed, the way most interpreted what happened after Watergate was that Nixon was exactly wrong: he fought the law, but the law had won.
Yet when I began to study this claim properly, as a law student and then a law professor, its meaning and limit became clearer.
Nixon’s claim then—and Trump’s claim now—is that Congress cannot regulate the core of presidential power. Thus, a statute that would make certain actions of an ordinary individual criminal does not make those same actions of the president criminal—if, and only if, the president is performing those actions as part of his executing core presidential power.
This is a claim about the limits to Congress’ power to make certain actions by the President criminal. But there was no reason for anyone to argue about this claim in this—Trump v. US—particular case. Because whether or not actions by the President can be criminalized when they are pursuant to core presidential power, no one could believe that the actions Trump was engaged in were anywhere near his core presidential power.
This is where the great Michael Dreeben seemed to let a point slip (and by this I mean the argument that follows). Trump’s lawyer, John Sauer, invoked the story of President Grant in 1876. As he said,
We have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi [sic: it was not Mississippi but South Carolina and Florida] in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford B. Hayes. (p25)
I’m not certain Dreeben knew what Sauer was talking about. Trump hadn’t referred to the incident in his briefs in the Supreme Court. In the District Court, his lawyers had referred to it twice, once with a citation that didn’t even discuss the event, and once with a citation to President Grant’s personal correspondence. Trump bundled these bungled sources into the claim that “organizing alternate slates of electors falls within the outer perimeter of Presidential [sic] duty….” (p24). A quick search suggests that only the amicus of Senator Danforth et al. picked up on this argument, transforming it into the utterly slanderous suggestion that Grant used his power to “overturn [the] 1876 results.” (p20).
But this is just absurd. Grant was not acting under any conception of a constitutional “presidential duty.” To the contrary, the Constitution gives the president absolutely no role in the selection of electors or casting of their ballots or the collection of those ballots or the presenting of slates of electors to Congress or the counting of the votes of the electors in Congress. None whatsoever. Grant was acting pursuant to the Enforcement Act of April 1871, aka the Ku Klux Klan Act, which empowered the president to declare martial law and use federal troops to suppress the KKK and other white supremacist groups that were using violence and intimidation to prevent freedmen from voting. That law (not the Constitution) gave him the power to ensure that the elections were not marred by violence. Grant had exercised that power effectively in 1872, producing perhaps the fairest election in the post-Civil War 19th century. He had tragically failed to exercise that same level of protection in 1876, which led to extraordinary violence and the suppression of Black Republican votes throughout the South.
One might well debate whether Congress had the power to pass the KKK Act. But Donald Trump’s efforts to produce alternative slates of electors in 2020 had nothing to do with enforcing any federal statute. Thus, the only basis he could have invoked for rendering his actions “official” was some express constitutional authority granting him such power. There is no such express constitutional authority.
The opinion of the Supreme Court should thus simply say,
“Yes, when the President is exercising core presidential power, Congress can’t regulate it. But the president has absolutely no constitutional power over slates of presidential electors. Thus, anything Donald Trump did with respect to those is clearly not an official act. And as counsel for President Trump has conceded, the President has no immunity when he is acting as a private citizen rather than as president.”
The failure to see this point — and insist upon it more vigorously—is a product of our modern gloss on the nature of federal authority over the presidential electoral system. Neither Congress nor the President is given any authority by the Constitution to supervise or protect the process by which electors are selected and cast their ballots. The Electoral Count Acts may suggest the contrary. I don’t think they do, but regardless: properly read, they are simply commitments by Congress about how Congress will process slates of electors and their votes. The context of Reconstruction may well have given Congress the power to pass the KKK Acts (I think it did, but many questioned that). But Trump was not acting under the authority of any KKK Act. Trump’s actions were, therefore, not official acts. They should carry with them no possible claim of presidential immunity.
Update:
Friends have asked whether the analysis in Fitzgerald v. Nixon (1982) doesn’t suggest the contrary conclusion. It plainly does not.
The government avoids Fitzgerald by arguing it was a civil case, not criminal. That’s true, but not the stronger response. The stronger response insists that even under the terms of Fitzgerald, Trump’s acts are not “official acts.”
Fitzgerald held that Nixon was absolutely immune from civil damages for his official act of discharging an Air Force employee, even when that discharge was later determined improper. Whether you like that conclusion or not, it’s impossible not to see Nixon’s act as an “official act.” The purpose of the immunity, as the Court explained, citing Story, was to ensure that “the president cannot … be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.” (457 U.S. 749). The Court then described what were the “duties of his office”:
The President occupies a unique position in the constitutional scheme. Article II, §1, of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States. ...” This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law—it is the President who is charged constitutionally to “take Care that the Laws be faithfully executed”; the conduct of foreign affairs—a realm in which the Court has recognized that “[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret”; and management of the Executive Branch—a task for which “imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties.” (emphasis added) (457 US 749–50)
For acts “within the ‘outer perimeter’” (457 US 756) of these responsibilities, the Court held, the President is absolutely immune.
Even under this standard, Trump’s acts are not official acts.
- They are not “within the ‘outer perimeter’” of his role “as the chief constitutional officer of the Executive Branch.”
- They are not “within the ‘outer perimeter’” of “the enforcement of federal law.”
- They are not “within the ‘outer perimeter’” of “the conduct of foreign affairs.”
- They are not “within the ‘outer perimeter’” of the “management of the Executive Branch.”
In short, acts related to electors and the election of the President have nothing to do with the President’s “official acts.”
Some say, “but what about his conversations with his vice president”? Tell me what the conversations are “within the ‘outer perimeter’” of, and I’ll tell you whether they’re immune. If he’s talking about, e.g., whether the FCC is an independent agency, sure. If he’s talking about hiring a prostitute, no.
Put most fundamentally: “Official acts” must be acts (even at the “outer perimeter”) that flow from law — either the Constitution or statutory law. Trump’s actions with respect to presidential electors flow neither from the Constitution (the President has absolutely no role with respect to presidential electors) nor from the law (unlike Grant in 1876). His acts are, therefore, and plainly, even under the standard of Fitzgerald, not “official acts.”
