{I} f we granted former presidents immunity from criminal prosecution, we’d basically be saying that a president could sell a pardon with impunity.
Listening this week as the D.C. Circuit heard arguments over former president Donald Trump’s claim that he is immune from prosecution on special counsel Jack Smith’s election-interference charges, it was ironic to hear Smith’s appellate lawyer, James I. Pearce, highlight this dark potential for corrupt pardons.
Pearce was doing it because this seemingly hypothetical prospect had clearly made an impression on Judge Florence Y. Pan. We discussed the very able Judge Pan earlier this week in connection with the holes she poked in Team Trump’s reliance on one of the Constitution’s impeachment clauses. She is one of two Biden appointees on the three-judge appellate panel (the other is Judge J. Michelle Childs; also sitting on the panel is Judge Karen L. Henderson, a Bush 41 appointee.) The panel is reviewing the rejection of Trump’s immunity claim by District Judge Tanya Chutkan, the Obama appointee presiding over the case in Washington, D.C.
Pan appears to have been swayed by the special counsel’s brief, which laid out a parade of the horrible crimes presidents might commit if given immunity from prosecution. (See here, pp. 28–29.) She used it to grill Trump attorney D. John Sauer early in the argument. Naturally, when came the prosecutors’ turn to respond, Pearce sought to hammer the point home: If you grant Trump’s immunity claim, we could end up with presidents selling pardons. But there’s an interesting wrinkle. While Pearce invoked the pardon sale at oral argument, obviously because Pan had invoked it, the special counsel had steered clear of it in the brief. Instead, Smith, Pearce, and their colleagues had raised the specter of a president’s selling “a lucrative government contract.” It was Pan who slightly tweaked it to a pardon — a better example because it’s a well-known constitutional power of the chief executive.
So why had the prosecutors avoided mentioning pardon-bribery in the brief? Why had they waited to pile on until Pan mentioned it? Undoubtedly, it is because they know — as Sauer reminded Pan — that the pardon example is not really hypothetical.
President Bill Clinton did effectively sell a pardon to the late Marc Rich, then a fugitive financier. It was exactly the doomsday scenario Smith, Pearce, et al. were seeking to evoke: A president is on his way out the door, having served two full terms, and carries out some outrageous abuse of power. As a practical matter, such a president would not be impeached: Being term-limited and by now out of office, he could no longer be removed from power and would already be disqualified from holding presidential power in the future. Consequently, if a court were to find him immune from criminal prosecution, that would mean he’d never be held accountable for his egregious act.
And that’s exactly what happened with Clinton. President George W. Bush’s Justice Department did not prosecute him for bribery or some other honest-services-fraud-type crime dreamt up for the occasion by creative prosecutors.
It is not that Clinton’s eleventh-hour pardons of Rich, a couple of Marxist domestic terrorists, his brother Roger, a member of his cabinet, and sundry rogue characters were not a historically shameful episode. It is not that some of the pardons, Rich in particular, did not smack of a quid pro quo — grist for an indictment when the perp is someone other than the president of the United States. No, it is that on balance, the nation is better served by avoiding the banana-republic corruption of the governing system that would happen if we normalized the prosecution of former presidents. And it is that, when the chief executive acts within the ambit of his executive authority — as a president undeniably is when issuing a pardon — subordinate executive officials, prosecutors, have no business, post facto, trying to turn the official act into a crime by reading the former president’s mind and finding corrupt intent.
If I could indulge in some similar mind-reading here, I surmise that the Biden Justice Department’s special counsel omitted any allusion to the inconveniently un-prosecuted Clinton pardon scandal in the brief, but dove right into it at the oral argument, because the current case is about Trump. When Trump is involved (and when isn’t he?), the Trump-obsessed can think of no one and nothing else. Precedents, they reckon, don’t matter because Trump is a Unique Evil in the World. He has convinced the all-id-all-the-time crowd that whatever governmental norm may be in their way is worth bulldozing for the greater good of bowling him over — as if the new, dangerous precedents they set won’t erode the rule of law and, ultimately, our constitutional republic.
The pardon bit has not gotten much attention in the post-argument coverage. That’s because it paled in comparison to the headliner in the parade of horribles: Imagine a president who orders SEAL Team 6 to kill a political rival and then resigns before he can be impeached! Pearce also leapt on that one after Pan had buzzed Trump’s lawyer with it. Once again, though, she seems to have gotten the idea from the government’s brief. The judge, we should note, has more flare for the dramatic: The brief envisioned a corrupt president “who orders the National Guard to murder his most prominent critics.” Pan tweaked it to “SEAL Team 6.” You can just see Trump-obsessed Hollywood winking!
As I chuckled on listening to all this, two things sprang to mind.
First, for the uninitiated, this is what appellate argument is about. Lawyers arrange moot courts in advance to prepare for a grilling by three smart, occasionally irascible federal judges, egged on by opposing counsel. A staple of these sessions is the development of arguments that frame the logic of the adversary’s position in the worst possible light, and readying oneself for similar worst-case-scenario questions from the court.
Doom-speak can be an effective rhetorical tactic, for the same reason it is often said that hard cases make bad law.
We aspire to law that is rigorously logical, but in our hearts we know that the law falls short of that aspiration. Laws, after all, are the result of legislative compromise, which delivers not the most sensible policy but the policy that can draw enough votes to get enacted. Hence, it is usually not hard to dream up hypothetical situations — unlikely but not unimaginable — in which the law or policy advocated would deliver an undesirable result, even if it functions well most of the time.
More to the point, life throws us many curveballs that are not, and cannot be, anticipated by our laws. These situations should call to mind Thomas Sowell’s wisdom: “There are no solutions. There are only trade-offs.” While we’d like the law to solve every human problem, human problems are too various for that. What we often find is that our law does not so much solve our problems as balance our competing interests.
Having spent many years arguing knotty criminal-law problems in trial and appellate courts, I’d have prepared for the Pan/Pearce parade of horribles with one of my own. Imagine, for example, that I commit a murder but my wife is the only witness; or the prosecutors are stumped but could prove the murder if, just this one time, the court would allow them to subpoena my lawyer or my priest, to whom I’ve confessed. Should we dispense with spousal privilege, attorney–client privilege, and priest–penitent privilege? After all, maybe I didn’t have the SEALs kill a political rival, but my doomsday scenario does involve a gruesome murder. If we don’t bend the rules, I’ll be beyond accountability. I’ll be . . . yes . . . above the law.
But in reality, if this scenario played out, I wouldn’t be above the law. I’d be the beneficiary of a gray area in which the law resolves two important but competing objectives: our interest in upholding the law, which generally requires forcing relevant but reluctant witnesses to testify; and our interest in promoting relationships and institutions without which it would be impossible to have a flourishing society. The vast majority of the time, these interests coexist without our noticing. Yet, they are always in tension. Every now and then, upholding a testimonial privilege will frustrate a worthy criminal prosecution. We don’t like it in the individual case, but we accept it because, in the big picture, preserving bedrock relationships and vital institutions benefits society.
Which brings me to the second thing that sprang to mind about the imaginary (but somehow very Trump-resonant) president who deploys the SEALs: Jack Smith has finally discovered “meat and potatoes” crime.
You may remember this expression from Bill Barr’s tenure as Trump’s attorney general. Many people in Trump-world are still very angry over the Justice Department’s “failure” to prosecute Hillary Clinton, Jim Comey, Andy McCabe, Peter Strzok, Lisa Page, John Brennan, James Clapper — even President Obama, then-vice president Biden, and everyone else who might be rounded up in what a Fani Willis-type impresario might call the Russiagate RICO conspiracy.
Barr, to the contrary, took the view that in a properly functioning constitutional republic, one of our highest interests is keeping law enforcement out of electoral politics. We don’t want the Justice Department deciding elections, he explained. We don’t want to normalize the incumbent administration’s punitive use of criminal investigation and prosecution against rivals in the opposition party. On the other hand, we don’t want a situation in which high officials commit serious criminal offenses with impunity — as if their privileged status were a personal immunity rather than a public trust.
So where to draw the line? Prudently in my view, Barr drew it at “meat and potatoes” crime: If a president’s Justice Department is faced with a decision about whether to indict a member of the opposition party, especially when such a prosecution is going to inject law enforcement into political campaigns, then there should be no indictment unless a very serious crime has been committed and the government has very strong evidence to prove it. For the sake of legitimacy, such a politically fraught indictment must involve a criminal offense so egregious that the public sees prosecution as imperative, as driven by the need to vindicate the rule of law, not by the desire to settle partisan scores.
As a result, there was no Russiagate RICO case. An investigation of the opposition party is not the time for prosecutors to get creative.
Ah, but the special counsel’s brief had to get creative. Do you suppose the prosecutors wanted to roll out an absurd president-orders-military-to-commit-murder scenario, in which we’re to imagine that officers of the finest armed forces in the history of the planet, whose loyalty is to the Constitution and who can be prosecuted for following patently illegal orders, would carry out a political assassination? Clearly not.
In making his argument, special counsel Smith would much rather have prodded the judges to “imagine a president who orders a horde of his followers to violently attack the Capitol and threaten to kill the vice president” — except that doing so would have invited the unwelcome observation that Smith cannot prove any such thing happened, which is why there are no riot, incitement, insurrection, or sedition charges in the Trump indictment. And of course, Smith wouldn’t have wanted to say, “Imagine a president who adopts a cockamamie legal theory to seek the invalidation of state electoral votes that would otherwise be counted in his rival’s favor.” Had he done so, one of the judges might have said, “But wait a second, haven’t Democrats done that, too, without being prosecuted?” And another judge might have added, “Maybe that’s why a president needs immunity, so that rival administrations and ambitious prosecutors avoid the powerful temptation to use the law as a partisan weapon.”
The Biden Justice Department has to fabricate preposterous visions of presidential malevolence because it lacks real ones to draw on from Trump’s case. Smith indicted Trump on complicated fraud, obstruction, and civil-rights theories that stretch the law to the breaking point. That is, the Biden Justice Department’s special counsel ignored the prudential meat-and-potatoes guidance.
The serious criminal offense that happened here is the Capitol riot, but Smith is bereft of evidence tying Trump to it in a criminally culpable way. (Again, to establish criminal liability, political and moral culpability are insufficient.) He cannot prove that Trump incited it (under the applicable legal test), intended it, ordered it, or participated in it. The rest of what Trump did involved ostensibly legitimate actions (e.g., exhorting state and federal officials to probe possible election fraud) that Biden Justice Department prosecutors have been trying for years to turn into crimes by imputing corrupt intent.
To be sure, there is abundant reason to believe Trump had corrupt intent, just as there is abundant reason to believe Clinton pardoned Rich because Rich paid up, not because Clinton believed he was innocent. Still, in our system, the check on such abuse of executive power is Congress, not criminal prosecution. And please, don’t tell me Clinton was beyond impeachment because his presidency was over. That’s just another trade-off. Impeachment probably was a more credible threat before the 22nd Amendment imposed a two-term limit; but we’re still better off with a president limited to eight years at the helm than one who holds office interminably. If that means every few decades a departing president will do something despicable, for which he or she cannot be held accountable upon departing office after two terms, then we can live with it — perhaps while repealing the pardon power.
If, instead, the check on presidential abuse of power becomes criminal prosecution, then henceforth every president, in any controversial action (which covers a lot of presidential territory), will have to fear being second-guessed and prosecuted the next time the opposition party wins the White House.
That’s the dirty little secret exposed in the litigation over Trump’s immunity claim. In their brief and in the oral argument, the prosecutors have to hallucinate visions of presidential monstrousness because of the dearth of real-life examples. By contrast, there is no need to hallucinate visions of prosecutorial power being abused for partisan advantage. We see it every day. On that score, when Judge Henderson prudently worried that a failure to acknowledge a former president’s immunity could open a “floodgate” of politicized prosecutions, it was borderline hilarious to hear Pearce counter that there was no need to worry because prosecutors “act within strict codes” of conduct and procedural regularity — they’re not partisan at all, no siree.
That is what may give Trump’s immunity claim traction. Immunity is not, as the Biden Justice Department would have you believe, a get-out-of-jail-free card. It would be the result of a trade-off — one the Supreme Court has already endorsed in the civil-law context. While we don’t want to see law-breaking go unaddressed, we recognize that, even worse for the country than the occasional unprosecuted presidential crime, would be burdening every presidential decision with the specter of a future vindictive lawsuit — whether civil or criminal. That doesn’t mean presidential misconduct should not be checked; it means we recognize that the proper equilibrium is created by the checks we already have: Congress’s impeachment power, its oversight power to embarrass the president politically, its power of the purse to cut off funding for abusive practices, and the public’s discernment in vetting candidates and not electing monsters to be president.
No one is saying the system is perfect. It is, instead, a trade-off: To have the executive branch operate effectively, we should forfeit whatever power there may be to prosecute presidents criminally over their official acts — because we have managed to get through nearly a quarter-millennium without prosecuting a president, because we have other means of avoiding or dealing with presidential excess, and because the specter of rogue prosecutors run amok is more real than that of rogue presidents ordering political murder.