In 2016, with the Iowa caucuses fast approaching, presidential candidate Donald Trump famously boasted: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK? It’s, like, incredible.”

We didn’t know then that Trump could have been referring not only toIowa voters but also to the justices of the Supreme Court.

Last week’s Supreme Court argument concerning Trump’s January 6 prosecution considered both his claim of “absolute immunity” from prosecution for acts within the “outer perimeter” of his official responsibility and a supposed “plain statement rule” that could allow a president to get away with serious crimes.

This supposed rule is drawn from a 1995 opinion of the Justice Department’s Office of Legal Counsel (OLC), an office that provides legal advice to the president and executive-branch agencies. The opinion says: “[G]eneral statutes must be read as not applying to the President if they do not expressly apply where the application would arguably limit the President’s constitutional role.”

Trump’s counsel, D. John Sauer, championed this formulation, and at least one Supreme Court justice—Brett Kavanaugh—appeared to embrace it. Justice Neil Gorsuch might have indicated his approval too. But, according to the Special Counsel’s Office, only two of the thousands of federal criminal laws “expressly apply” to the president. Neither of these two laws is one of the federal murder statutes.

The OLC formulation wouldn’t prevent the prosecution of a president who shot someone on Fifth Avenue, if the president did it for purely personal reasons without any claimed “official” cover. But what if a president ordered the Air Force to bomb an apartment building on Fifth Avenue where a person on his or her enemies list resided? The Constitution says: “The President shall be Commander in Chief of the Army and Navy of the United States.” Would prosecuting the president for bombing someone he or she considered an “enemy of our country” arguably limit the president’s constitutional role? Or what if a Putin-like president pardoned a crony in exchange for the crony’s promise to poison a patron of a Fifth Avenue tea room? The Constitution says: “[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States,” and even Michael Dreeben, the lawyer who argued for the Special Counsel’s Office, told the Court that “core powers” like “the pardon power … can’t be regulated at all.” “Regardless of motive?” Justice Gorsuch asked, and Dreeben said: “Correct.”[1]

As a friend-of-the-court brief by Professor Martin Lederman shows, the supposed “plain statement rule” doesn’t exist. Here are eight observations, many of them drawn in part from Professor Lederman’s brief.

  1. Trump’s counsel and Justice Kavanaugh may think otherwise, but no judicial decision approves or recognizes this rule. In the decision that comes closest, the Supreme Court held that the president is not an “agency” subject to procedural rules set forth in a federal statute. The Court remarked that it would require an express statement by Congress before subjecting the president to these rules. But the Court’s statement was an invitation for Congress to amend and clarify a particular statute, not a declaration about the inapplicability of all general statutes that fail to mention the president.
  2. Opinions of the OLC are not powerful authorities. Many of them manifest the Justice Department’s home-team bias in favor of broad presidential power. Moreover, the OLC opinion that articulated the “plain statement rule” also contradicted it. The federal bribery statute doesn’t mention the president, but OLC acknowledged that a president can be prosecuted for accepting a bribe in exchange for appointing an ambassador, granting a pardon, vetoing a bill, or exercising another official power. The opinion explained: “The Constitution confers no power in the President to receive bribes.” But the Constitution gives the president no power to commit any of the crimes with which Trump has been charged. Recognizing a bribery exception swallows the rule. The OLC statement proved too much.
  3. OLC did note a circumstance that might make bribery seem different from crimes like obstructing an official proceeding, conspiring to defraud the United States, and murdering someone on Fifth Avenue: “The Constitution expressly authorizes Congress to impeach the President for … bribery.” But the Constitution’s authorization of impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors” doesn’t treat bribery differently from other crimes. A president who bombs a building on Fifth Avenue can be impeached too.
  4. The supposed “plain statement rule” is a rule of statutory construction, not a rule of constitutional law, and the Supreme Court has no power to tell state courts how to construe state statutes. Could New York apply its laws to a chief executive who bombed Fifth Avenue even if the federal government could not? Precluding the application of federal but not state laws to a corrupt federal official seems topsy-turvy.
  5. When Justice Amy Coney Barrett noted that, under Trump’s proposed rule, even a president who staged a military coup couldn’t be prosecuted “if there was not a statute that expressly referenced the president,” Trump’s counsel, Sauer, agreed that this traitorous president could escape prosecution (it’s at p. 57 of the transcript). Dreeben noted that Trump’s “novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power.” Justice Kentaji Brown Jackson added that “a president would not be prohibited by statute from perjuring himself under oath about official matters, from corruptly altering, destroying, or concealing documents to prevent them from being used in an official proceeding, from suborning others to commit perjury, from bribing witnesses or public officials [and] on and on.”
  6. No president other than Trump has asserted the supposed “plain statement rule.” For example, when President Nixon unsuccessfully resisted delivering White House tapes to a grand jury, he did not argue that he was exempt from the statute authorizing grand jury subpoenas and criminal enforcement of that statute because that statute didn’t specifically mention the president. No one imagined that President Ford’s pardon of Nixon was unnecessary because the statutes Nixon might have been charged with violating didn’t explicitly apply to him. And when President Clinton unsuccessfully argued that a civil lawsuit against him should be delayed until he left office, he didn’t claim that the statute authorizing the lawsuit was inapplicable because it didn’t specifically authorize suing him.
  7. Of course, general statutes are invalid when they prevent the president from exercising powers conferred by the Constitution. For example, the Constitution provides that the president may nominate officers of the United States and may grant pardons. A general anti-nepotism statute that prohibited a president from nominating his or her brother to be Attorney General (as President Kennedy did) or from pardoning his or her brother (as President Clinton did) would be invalid “as applied” to these actions. Moreover, courts often construe statutes to avoid constitutional questions. The Supreme Court has cautioned, however, that, in doing so, judges have no “license to rewrite language enacted by the legislature.” Unlike the “avoidance” canon, the supposed “plain statement rule” would apply even to unambiguous statutes. One of the statutes Trump allegedly conspired to violate provides: “Whoever corruptly… obstructs, influences, or impedes any official proceeding… shall be… imprisoned….” As Professors Daniel Hemel and Eric Posner observe, construing the word “whoever” to mean “whoever except the president” would do violence to the English language.
  8. Trump did not mention the “plain statement rule” when he argued for dismissal of his case in the district court or the court of appeals. An op-ed by Professor Jack Goldsmith (the rule’s principal academic champion and a former head of the OLC) might have prompted Trump’s belated invocation of the rule in the Supreme Court. Ordinarily, a defendant may not offer new arguments in the Supreme Court, and, ordinarily, a defendant may not appeal a court’s failure to apply a rule of statutory construction until after she has been tried and convicted. Acknowledging that the Supreme Court could nevertheless address the rule, Dreeben commented: “We are not wild about parties who raise an immunity case that can be presented to a court on an interlocutory appeal and then smuggling in other issues.”   

* * * * * * *

Early in last week’s argument, Justice Sonia Sotomayor noted the traditional distinction between crimes that are “malum in se”—crimes punishing what she called “fundamentally evil” conduct—and crimes that are “malum prohibitum”—crimes punishing conduct that wouldn’t be subject to strong moral condemnation if the legislature hadn’t forbidden it. It’s a good bet that the people who wrote and ratified the Constitution didn’t mean any of their grants of power—not even their “core” grants—to exempt presidents permanently from punishment for “malum in se” crimes. The focus throughout last week’s argument on “core” presidential powers rather than “core” presidential crimes was unfortunate.

After Justice Sotomayor’s preface, she asked: “If the president decides that his rival is a corrupt person and he orders… someone to assassinate him, is that within his official acts for which he can get immunity?” Trump’s lawyer, Sauer, answered: “[T]hat could well be an official act.” Lawyer Marc Elias commented: “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.” The exchange between Justice Sotomayor and Sauer marked one of many moments in the investigation and prosecution of Donald Trump that have prompted despair about the Court, our woefully ineffective legal system, and the future of democracy in America.   

[1] I’ve maintained that, although a president shouldn’t be subject to prosecution for obstructing justice in the case of a pardon recipient even when the president’s motive was “corrupt,” a president should be subject to prosecution for using the pardon power to obstruct justice in other cases—for example, by granting clemency in exchange for the recipient’s non-cooperation with prosecutors investigating the president.