Read the following except from the United States’ brief from the proceeding in Trump v. United States. Using your understanding of presidential immunity, write up to a page response examining the BOTH the strengths and weaknesses of the United States’ argument. Trump v. United States RESPONSE IN OPPOSITION TO APPLICATION FOR A STAY OF THE MANDATE OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT From January 2017 until January 2021, applicant was the President of the United States. The indictment alleges that after 4 losing his campaign for re-election, applicant engaged in fraudulent conduct for the purpose of overturning the 2020 election and preventing the transfer of power. On August 1, 2023, a federal grand jury sitting in the District of Columbia charged applicant in a four-count indictment. D. Ct. Doc. 1. Count One, which charges a conspiracy to defraud the United States, in violation of 18 U.S.C. 371, alleges that applicant, then a candidate seeking re-election to the presidency, conspired with, among others, several individuals outside the Executive Branch to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” D. Ct. Doc. 1 ¶¶ 1, 7, 8. The indictment further alleges that applicant sought to accomplish the conspiracy’s objectives in five ways: using deceit toward state officials to subvert the legitimate election results in those States, id. ¶¶ 13-52; using deceit to organize fraudulent slates of electors in seven targeted States and cause them to send false certificates to Congress, id. ¶¶ 53-69; leveraging the Department of Justice to use deceit to have state officials replace the legitimate electoral slate with electors who would cast their votes for applicant, id. ¶¶ 70-85; attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, 5 id. ¶¶ 86-105; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. ¶¶ 106- 124. Counts Two and Three, which incorporate allegations from Count One, charge conspiracy and substantive violations of 18 U.S.C. 1512(c)(2) for corruptly obstructing the certification of the presidential election results on January 6, 2021. Id. ¶¶ 125- 128. Count Four, which likewise incorporates the allegations from Count One, alleges that applicant conspired to violate voters’ constitutional right to vote and have their votes counted, in violation of 18 U.S.C. 241. Id. ¶¶ 129-130. ARGUMENT I. APPLICANT HAS FAILED TO ESTABLISH A FAIR PROSPECT OF SUCCESS Applicant’s position is that he is absolutely immune from federal criminal prosecution based on any conduct that falls within 10 the outer perimeter of his official duties as President, unless Congress has previously impeached and convicted him for the same conduct. That position finds no support in constitutional text, separation-of-powers principles, history, or logic. And if that radical claim were accepted, it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law -- particularly where, as here, a former President is alleged to have committed crimes to remain in office despite losing an election, thereby seeking to subvert constitutional procedures for transferring power and to disenfranchise millions of voters. The President, of course, “occupies a unique position in the constitutional scheme.” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). The Constitution vests the “executive Power” in the President, ibid. (quoting U.S. Const. Art. II, § 1), and entrusts him with supervisory and policy duties “of utmost discretion and sensitivity,” id. at 750. The President is “the only person who alone composes a branch of government.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020). The President’s duties, however, do not operate in a realm without law. They exist within a framework of separated powers in which Congress makes laws, U.S. Const. Art. I; the President “shall take Care that the Laws be faithfully executed,” U.S. Const. Art. II, § 3; and the Article III courts exercise the judicial power to “say what the law is,” Marbury v. 11 Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Applicant’s novel immunity claim would “collapse our system of separated powers by placing the President beyond the reach of all three Branches.” Appl. App. 40A. His immunity claim is especially at odds with our system of government as applied to this prosecution, where a former President is charged with criminal conduct intended to overturn the results of an election in order to perpetuate himself in office, in violation of Article II. See U.S. Const. Art. II, § 1, Cl. 1 (the President “shall hold his Office during the Term of four Years and * * * be elected” according to the procedures set forth in the Constitution); see Appl. App. 37A-40A (explaining the heightened constitutional interests implicated by this prosecution because of Article II’s provisions for “vesting authority in a new President” and “the citizenry’s interest in democratically selecting its President”). That alleged effort to frustrate the Constitution’s provisions for transferring power to a lawfully elected successor -- and negate the will of voters -- would be, “if proven, an unprecedented assault on the structure of our government.” Id. at 39A. A. Separation-of-Powers Principles Provide No Support For Absolute Criminal Immunity For A Former President This Court has long held that when constitutional text does not directly resolve a separation-of-powers issue implicating Executive Branch functions, judicial analysis requires assessing (1) 12 whether a congressionally imposed limitation on Presidential action “prevents the Executive Branch from accomplishing its constitutionally assigned functions,” and (2) if the law has that effect, “whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.” Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); see also Fitzgerald, 457 U.S. at 754 (“balanc[ing] the constitutional weight of the interest to be served [by an exercise of jurisdiction over the President] against the dangers of intrusion on the authority and functions of the Executive Branch”); United States v. Nixon, 418 U.S. 683, 707 (1974) (weighing Executive Branch interests in confidential communications against “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions”). The Framers did not provide any explicit textual source of immunity to the President. “The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.” Appl. App. 44A (quoting Trump v. Vance, 140 S. Ct. 2412, 2434 (2020) (Thomas, J., dissenting)). Nonetheless, “the silence of the Constitution on this score is not dispositive.” Nixon, 418 U.S. at 705 n.16. In Fitzgerald, this Court held that Presidential immunity from civil damages actions is a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of 13 the separation of powers.” 457 U.S. at 749. In the present context, a weighing of the same considerations examined in Fitzgerald results in the opposite conclusion: applicant’s claim of absolute immunity from federal criminal prosecution would harm, rather than promote, the separation of powers. 1. Fitzgerald’s concern that potential exposure to private civil damages actions would chill a President’s decision-making, to the detriment of the vigorous exercise of executive authority, does not apply to the context of federal criminal prosecution. In contrast to the unchecked potential for myriad suits from private citizens who feel aggrieved by Presidential action, federal criminal prosecutions are conducted by the Executive Branch itself, under the supervision of the Attorney General acting through professional prosecutors appointed “to assist him in the discharge of his duties.” Nixon, 418 U.S. at 694. “The decision to prosecute a criminal case * * * is made by a publicly accountable prosecutor * * * under an ethical obligation, not only to win and zealously to advocate for his client but also to serve the cause of justice.” Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 386 (2004). The government’s actions are therefore afforded a presumption of regularity “in the absence of clear evidence to the contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation omitted). No evidence of abusive federal prosecutions of former Presidents exists, and inherent 14 checks in the Executive Branch itself guard against any such breakdown in our criminal justice system. See pp. 17-18, infra; cf. United States v. Brewster, 408 U.S. 501, 508, 523-524 (1972) (rejecting Speech-or-Debate Clause objections to bribery prosecutions of Members of Congress by noting, inter alia, the absence of “a catalogue of abuses at the hands of the Executive” in prosecuting legislators). Multiple structural constraints further limit the potential for abusive prosecutions of former Presidents. Federal felony prosecutions must be initiated by a grand jury, see U.S. Const. Amend. V, which is “a constitutional fixture in its own right” and “serv[es] as a kind of buffer or referee between the Government and the people.” United States v. Williams, 504 U.S. 36, 47 (1992) (citation omitted). Grand juries are “prohibited from engaging in arbitrary fishing expeditions and initiating investigations out of malice or an intent to harass.” Vance, 140 S. Ct. at 2428 (citation and internal quotation marks omitted). And Article III courts stand ready to enforce due process prohibitions against improper prosecutions, ibid., and can be expected to review any claims by a former President “meticulous[ly].” Id. at 2430 (quoting Nixon, 418 U.S. at 702); see Armstrong, 517 U.S. at 464 (“a prosecutor’s discretion is subject to constitutional constraints”) (citation and internal quotation marks omitted). Prosecutions are also subject to public scrutiny in 15 proceedings guaranteeing a defendant a fair trial, with an array of procedural rights. U.S. Const. Amend. VI. They are conducted under judicial supervision, with the government bearing the burden to prove its allegations beyond a reasonable doubt to a unanimous jury. United States v. Gaudin, 515 U.S. 506, 510 (1995). These established safeguards against unfounded federal prosecution sharply contrast with the potential multiplicity of private damages actions that concerned the Fitzgerald Court. Cf. Cheney, 542 U.S. at 386 (contrasting the criminal justice system’s protections “to filter out insubstantial legal claims” with the absence of “analogous checks” in civil litigation). Given these institutional safeguards and constitutional constraints, applicant’s speculative claim (Appl. 2) that future Presidents will be chilled from carrying out the duties of office by the remote prospect of post-Presidency federal criminal prosecution is unpersuasive. History supports that conclusion. Even under applicant’s view, from the inception of the Nation, all Presidents have understood that the commission of criminal acts in their use of official powers could potentially result in post-Presidency prosecution. Appl. 29 (conceding the possibility of prosecution after impeachment and conviction). Consequently, “past Presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances, so the possibility of chilling executive action” that applicant fears “is already 16 in effect.” Appl. App. 33A. Watergate confirmed that possibility. See pp. 27-28, infra. Yet no evidence of abusive or overreaching federal criminal investigations of former Presidents has emerged, let alone evidence of chill in the Oval Office arising from fear of unwarranted prosecution.4 Likewise, applicant’s claim (Appl. 1, 21-22) that history supports his position because no former President was previously prosecuted disregards the “unprecedented” scale, nature, and seriousness of his alleged crimes -- a fraudulent effort to stay in office in defiance of the will of the electorate. Appl. App. 39A. The conduct alleged in the indictment is of unparalleled gravity. Applicant’s efforts to compare the present charges to acts by past Presidents that (he asserts) could have been prosecuted is deeply flawed. See Appl. 22-23 (citing secondary sources collected in his brief in the court of appeals). Applicant makes no effort to examine the specifics of any criminal statutes, consider unique legal defenses, or -- critically important -- address the threshold requirement that “the admissible evidence will probably be sufficient to obtain and sustain a conviction” as is necessary for prosecutors to bring federal criminal charges. See U.S. Dept. of Justice, Justice Manual § 9-27.220 (2023) (Principles of Federal Prosecution). Accusations leveled in political discourse do not constitute evidence. To credit applicant’s fear that future Presidents will be cowed by opponents’ threats to bring unfounded indictments, one would have to assume that a host of institutional actors -- the Attorney General, career federal prosecutors, grand jurors, petit jurors, and federal judges -- would all abandon their oaths of office and allow baseless, vindictive prosecutions to proceed. That dystopian vision runs contrary to the checks and balances built into our institutions and the framework of the Constitution. Those guardrails ensure that the legal process for determining criminal liability will not be captive to “political forces,” as applicant forecasts. Appl. 11 (emphasis added). Applicant overlooks how these checks have worked in the past. For instance, former President Reagan was subject to criminal investigation for Iran/Contra, with the responsible federal prosecutor determining that the evidence did not warrant prosecution. More recently, then-Attorney General William Barr rebuffed calls “to use the criminal justice system as a political weapon”; “[i]t cannot and will not be a tit-for-tat exercise.”6 See also U.S. Dept. of Justice, Justice Manual § 9-27.260 (2023) (prosecutors “may not be influenced by” such factors as the person’s “political association, activities, or beliefs”). Those examples illustrate the resilience of the Presidency and the vitality of institutional safeguards to protect against abuses. Applicant provides no basis for believing that Attorneys General -- members of the Executive Branch themselves -- would permit groundless prosecutions of former Presidents that would damage the Presidency as an institution. To the contrary, Attorneys General have every incentive to protect that institution. Speculative fears of chilling Presidential action based on threats by “political opponents” to seek “indictment by a future, hostile Administration, for acts that do not warrant any such prosecution,” Appl. 2, are insufficient to support applicant’s extraordinary claim that a President must be absolutely immune from any criminal accountability in order for that office to function. Finally, Applicant’s speculation that denying him absolute immunity will lead to chilling is belied by the longstanding position of the Department of Justice that a President may be prosecuted “once [his] term is over or he is otherwise removed from office by resignation or impeachment.” Memorandum from Randolph D. Moss, Assistant Atty. Gen., Office of Legal Counsel, to the Atty. Gen.: A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 255 (Oct. 16, 2000). While a sitting President has temporary immunity, ibid., the Executive Branch itself has disavowed the position that former Presidents must be placed above the law with a novel immunity in order for the Presidency to survive. Former Presidents have likewise acknowledged that they may be prosecuted after leaving office. See, e.g., Resp. Br. United States v. Nixon, No. 73-1766, 1974 WL 174855, at *98 (June 21, 1974) (“[A President] can be indicted after he leaves office at the end of his term or after being ‘convicted’ by the Senate in an impeachment proceeding.”). Applicant makes no effort to square his position with that established view. 2. A powerful interest on the other side of the scales is the need to “vindicate the public interest in an ongoing criminal prosecution.” Fitzgerald, 457 U.S. at 754. This Court has frequently recognized the compelling public interest in enforcing the 20 criminal law, explaining that “the primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.” Nixon, 418 U.S. at 707; see also Cheney, 542 U.S. at 384 (recognizing that the “commitment to the rule of law is nowhere more profoundly manifest” than in criminal justice) (citation and ellipsis omitted). And here the Executive Branch’s decision to enforce laws enacted by Congress places those branches’ constitutional roles at odds with applicant’s immunity claim. Separation of-powers considerations thus cut against recognizing an absolute immunity that contradicts our constitutional heritage by placing the President “above the law.” United States v. Lee, 106 U.S. 196, 220 (1882); see also Vance, 140 S. Ct. at 2432 (Kavanaugh, J., concurring) (the principle that no one is above the law “applies, of course, to a President”). These considerations are heightened, as the court of appeals explained, by the exceptionally strong constitutional interest in enforcing the law when a former President is charged with having committed crimes in a bid to retain power despite having lost the election. Appl. App. 37A-40A. The conduct alleged in the Indictment, if proved at trial, represents a concerted effort to violate the Constitution’s Term-in-Office Clause, see U.S. Const. Art. II, § 1, Cl. 1 (elected President “shall hold his Office during the Term of four Years”), and the President’s duty to “take Care that the Laws be faithfully executed,” id., § 3. The proposition that 21 a former President is immune from federal criminal liability for conduct that would overturn his electoral defeat contravenes bedrock constitutional principles and threatens democracy itself. Applicant never acknowledges the constitutional cost of insulating a former President from criminal accountability for that conduct.7 3. A balance of these considerations therefore weighs against applicant’s conjecture that “[w]ithout immunity from criminal prosecution, the Presidency as we know it will cease to exist.” Appl. 2; id. at 10-11. Only one historical precedent bears relevant comparison to the Indictment’s allegations. During the Nixon Presidency, misconduct in the White House intended to harm political rivals and keep the Administration in power led to a criminal investigation, federal indictment of the Watergate conspirators, and the naming of then-President Nixon as an unindicted co-conspirator and his subsequent acceptance of a pardon for all criminal 7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at offenses arising from his conduct. Yet no later prosecutions of former Presidents ensued -- until applicant’s indictment 50 years later for allegedly seeking to thwart the political process and perpetuate himself in power. The Nation’s tradition is therefore clear: Presidential conduct that violates the criminal law to achieve the end of remaining in power may be subject to a prosecution. That possibility should not chill legitimate Presidential conduct.
READ MORE >>
