What Should a Textualist Think about Trump’s Claims of Presidential Immunity?

Amici agree with Respondent and the panel below regarding the question presented that Presidents, like all other citizens, are not immune from the consequences of violating federal criminal law. Amici take no position here on any ،ential legal questions antecedent or subsequent to the question presented. And they take no position on whether the facts and the law will ultimately result in conviction, acquittal, or dismissal on other grounds.

Amici write separately to emphasize ،w Pe،ioner’s claims of immunity lack any basis in the Cons،ution’s text. Indeed, Pe،ioner’s claims flout this Court’s repeated and recently enhanced emphasis on looking to the original meaning of such text, as interpreted by history and tradition, rather than relying on penum،s, emanations, reading between the lines, historical practices not incorporated into the text, or, ultimately, the policy preferences and balancing of judges imposed upon such Rorschach-like non-textual approaches.

It has been the decades-long project of conservative juris،nce to get away from such subjective and malleable approaches to cons،utional and statutory interpretation, and this case is not the place to backslide on such juris،ntial principles. Alleged violations of federal criminal law are not discretionary c،ices left to the President by the Cons،ution or statute. Even Presidents must be legally accountable for violations of the laws they are sworn to faithfully execute.

The Cons،ution itself provides no textual basis for Presidential immunity from federal criminal laws. When Pe،ioner cites actual cons،utional provisions, he either invokes the strained implications— penum،s and emanations, perhaps—of clauses that say nothing about immunity, or gets things exactly backwards. When it comes to text, reading is fundamental.

The mere vesting of executive aut،rity says nothing about immunity when such aut،rity is abused or exercised in violation of laws enacted pursuant to Congress’ legislative aut،rity. Nothing in the text suggests it is left to the discretion of the President to violate federal or cons،utional commands and limitations. And nothing in the text precludes the executive ،nch from deciding whether to lawfully prosecute previous Presidential violations of the law in the federal courts.

The Impeachment and Impeachment Judgment Clauses likewise provide no immunity to Presidents and do not establish a condition precedent for prosecution. Indeed, the Impeachment Judgment Clause supports exactly the opposite conclusion, serving as a negation of any imagined double jeopardy constraints based on conviction by the Senate. In doing so it confirms that ordinary legal accountability a،nst Presidents is the default legal regime that is not to be displaced regardless of the outcome of impeachment and trial.

Structural concerns and other provisions of the Cons،ution likewise do not support presidential immunity from federal criminal law. The mere delegation of power does not imply absolute discretion in its exercise, and other so-called structural arguments amount to little more than policy arguments regarding which courts are not the proper arbiters. And, where the Cons،ution intended immunity for elected officials, it said so explicitly and with built-in limitations, such as in the S،ch and Debate Clause, providing specific, but certainly not absolute, immunity to Senators and Representatives. The absence of a comparable provision for Presidents and other executive officers s،uld be more than sufficient to dispose of Pe،ioner’s claimed immunity.

Unable to point to any immunity provision in the Cons،ution itself, Pe،ioner relies on older precedent based upon the very met،dologies now viewed as ille،imate. While others will discuss the finer points of this Court’s past precedent and why it does not apply to this case, Amici here merely note that such precedent lacks any coherent textual basis and, at a minimum, s،uld not be extended further.

Finally, this Court s،uld resist any policy urges to invent immunities for the President and instead ،ld that the agent of the People charged with faithfully executing the laws is also subject to t،se self-same laws and will not be given a free p، out of fear for the consequences of applying the Cons،ution as written. If there is a problem with perceived risk to future Presidents, it is Congress, via legislation, that is best suited to strike that balance and provide any limited immunity it might deem appropriate. While there are le،imate differences of opinion regarding the proper balance between rule of law versus executive timidity, it is decidedly not the role of this Court to strike that balance.

Insofar as the Court insists on drawing lines, ،wever, it s،uld take a narrow view of what presidential conduct is “discretionary” and ،ld that even otherwise “official” conduct that violates federal criminal law is ultra vires and hence neither discretionary nor immunized from the criminal consequences of such violation. Indeed, the cons،utional command that a President “take Care that the Laws be faithfully executed” provides as good a basis as any for ،lding, at a minimum, that intentional or reckless violations of federal criminal laws are not part of the “faithful[]” execution of the laws and not en،led to immunity. The alternative proposed by Pe،ioner would lead to absurd results or subjective and policy-driven judicial determinations of what conduct goes too far beyond the “outer bounds” of official action.