Amicus Curiae Brief — Donald J. Trump, Petitioner v. United States

Supreme Court briefApr 8, 2024

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No. 23-939

In the Supreme Court of the United States

DONALD J. TRUMP, Petitioner,

UNITED STATES

On Writ of Certiorari to

the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF STEPHEN R. McALLISTER

AND SCOTT PAUL AS AMICI CURIAE

SUPPORTING RESPONDENT

ERIK S. JAFFE

Counsel of Record

JAMES A. HEILPERN

SCHAERR|JAFFE LLP

1717 K Street, NW

Suite 900

Washington, DC 20006

(202) 787-1060

ejaffe@schaerr-jaffe.com

Counsel for Amici Curiae

APRIL 8, 2024

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY .................................................................. 2

ARGUMENT ................................................................ 5

II.

Presidential

Immunity

from

the

Commands and Consequences of Federal

Law Must Be Based on the Original

Public Meaning of the Text of the

Constitution, Understood in Light of Its

History and Tradition. .................................... 5

The Text of the Constitution Does

Not Create Presidential Immunity

from Federal Law. ................................... 7

Past Immunity Cases Are Not Based

on the Text of the Constitution............. 19

Policy Considerations and Line Drawing

Are for Congress, Not this Court. ................ 22

CONCLUSION .......................................................... 28

Cases

TABLE OF AUTHORITIES

Page(s)

Baxter v. Bracey,

140 S. Ct. 1862 (2020) ............................................ 22

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023),

cert. granted, 144 S. Ct. 374 (2023) ....................... 23

Collins v. Virginia,

584 U.S. 586 (2018) ................................................ 21

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .................................... 5, 6, 7, 24

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) .................................................. 22

Hans v. Louisiana,

134 U.S. 1 (1890) ...................................................... 8

Jennings v. Rodriguez,

583 U.S. 281 (2018) .................................................. 9

Kansas v. Garcia,

589 U.S. --, 140 S. Ct. 791 (2020) .................... 11, 19

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................................. 6

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ................................. 21

Merck Sharp & Dohme Corp. v. Albrecht,

587 U.S. 299 (2019) .......................................... 11, 12

Murphy v. National Collegiate Athletic Ass’n,

584 U.S. 453 (2018) ................................................ 19

iii

National Pork Producers Council v. Ross,

598 U.S. 356 (2023) ................................................ 10

New York State Rifle & Pistol Ass’n, Inc.

v. Bruen, 597 U.S. 1 (2022) .................................. 6, 7

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ................................................ 21

Rutledge v. Pharm. Care Mgmt. Ass’n,

592 U.S. 80 (2020) .................................................. 11

Staples v. United States,

511 U.S. 600 (1994) ................................................ 24

Trump v. Vance,

591 U.S. 786, 140 S. Ct. 2412 (2020) ..................... 21

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ...................................................... 6

Virginia Uranium, Inc. v. Warren,

587 U.S. --, 139 S. Ct. 1894 (2019) .................. 10, 11

Wyeth v. Levine,

555 U.S. 555 (2009) ................................................ 11

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................................ 22

Constitutional Provisions

U.S. Const. amend. XI ................................................. 8

U.S. Const. art. I, § 1, cl. 6 ........................................ 12

U.S. Const. art. I, § 3, cl. 7 ........................................ 14

U.S. Const. art. I, § 6 ................................................... 8

U.S. Const. art. I, § 9, cl. 8 ........................................ 18

U.S. Const. art. II, § 1 .................................................. 9

U.S. Const. art. II, § 2, cl. 2 ....................................... 20

U.S. Const. art. II, § 3 ...................................... 9, 20, 28

U.S. Const. art. II, § 4 ................................................ 14

Other Authorities

Robert H. Bork,

Neutral Principles and Some

First Amendment Problems,

47 Ind. L.J. 1 (1971) ............................................... 23

Marshall Cohen,

1 in 10 defendants from US Capitol

insurrection have military ties,

CNN (May 28, 2021) .............................................. 26

Kristen East,

Trump: I could ‘shoot somebody’

and I wouldn’t lose voters,

Politico (Jan. 23, 2016) .......................................... 26

The Federalist No. 65

(Easton Press ed. 1979) ................................... 15, 16

The Federalist No. 69

(Easton Press ed. 1979) ......................................... 16

The Federalist No. 77

(Easton Press ed. 1979) ......................................... 16

John F. Manning,

The Eleventh Amendment and the

Reading of Precise Constitutional Texts,

113 Yale L.J. 1663 (2004) ........................................ 8

Ashley Parker et al.,

How the rioters who stormed the

Capitol came dangerously close to Pence,

Wash. Post (Jan. 15, 2021) .................................... 27

READ: McConnell Speech After Trump’s

Impeachment Trial Acquittal,

U.S. News & World Rep. (Feb. 14, 2021) .............. 17

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ................................................. 9

INTERESTS OF AMICI CURIAE 1

Amicus Stephen R. McAllister is the E.S. & Tom W.

Hampton Distinguished Professor of Law at the

University of Kansas School of law, where he teaches

and writes about constitutional law, including

constitutional and Section 1983 immunities. Among

many other positions, he has served as dean of the law

school, Solicitor General of Kansas, and U.S. Attorney

for the District of Kansas.

Amicus Scott Paul is the executive director of the

Center for Constitutional Studies (CCS) at Utah

Valley University (UVU). CCS examines important

constitutional issues found at the intersections of

political thought, public policy, religion, law, history,

and economics, emphasizing practices critical to the

perpetuation of constitutional government, ordered

liberty, and the rule of law. He oversees CCS’s

research partnership with Oxford University’s

Pembroke

College

the

Quill

Project

(www.quillproject.net), which creates interactive

textual and visual models of constitutional

conventions, and launched and leads the Center’s K–

12 Constitutional Literacy Initiative.

Amici are interested in this case because a

principled and conservative jurisprudence requires

fidelity to constitutional and statutory text, without

resort to penumbras, emanations, or judicial

policymaking when the text leads to results at odds

with the approach a judge might otherwise prefer.

1 No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amici, its members, and

counsel, made a monetary contribution to the brief’s preparation

or submission.

SUMMARY

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 potential 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 how

Petitioner’s claims of immunity lack any basis in the

Constitution’s text. Indeed, Petitioner’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 penumbras, 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

jurisprudence to get away from such subjective and

malleable approaches to constitutional and statutory

interpretation, and this case is not the place to

backslide on such jurisprudential principles. Alleged

violations of federal criminal law are not discretionary

choices left to the President by the Constitution or

statute. Even Presidents must be legally accountable

for violations of the laws they are sworn to faithfully

execute.

The Constitution itself provides no textual basis for

Presidential immunity from federal criminal laws.

When Petitioner cites actual constitutional provisions,

he either invokes the strained implications—

penumbras 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 authority says

nothing about immunity when such authority is

abused or exercised in violation of laws enacted

pursuant to Congress’ legislative authority. Nothing

in the text suggests it is left to the discretion of the

President to violate federal or constitutional

commands and limitations. And nothing in the text

precludes the executive branch 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

against 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

Constitution 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 Constitution intended

immunity for elected officials, it said so explicitly and

with built-in limitations, such as in the Speech 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 should be more than

sufficient to dispose of Petitioner’s claimed immunity.

Unable to point to any immunity provision in the

Constitution itself, Petitioner relies on older precedent

based upon the very methodologies now viewed as

illegitimate. 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, should not be extended further.

Finally, this Court should resist any policy urges to

invent immunities for the President and instead hold

that the agent of the People charged with faithfully

executing the laws is also subject to those self-same

laws and will not be given a free pass out of fear for

the consequences of applying the Constitution 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 legitimate 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,

however, it should take a narrow view of what

presidential conduct is “discretionary” and hold 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

constitutional command that a President “take Care

that the Laws be faithfully executed” provides as good

a basis as any for holding, at a minimum, that

intentional or reckless violations of federal criminal

laws are not part of the “faithful[]” execution of the

laws and not entitled to immunity. The alternative

proposed by Petitioner 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.

ARGUMENT

Presidential Immunity from the Commands

and Consequences of Federal Law Must Be

Based on the Original Public Meaning of the

Text of the Constitution, Understood in

Light of Its History and Tradition.

This Court’s recent jurisprudence has been at pains

to reemphasize that legitimate constitutional rulings

must derive from the original public meaning of the

text of the Constitution, not from penumbras,

emanations, or other Rorschach-test manifestations of

the policy views of the judicial branch. Recent cases

re-focus on the text of the Constitution and the history

and tradition that gave meaning to the words at the

time they were adopted. See Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 235 (2022)

(“Constitutional analysis must begin with ‘the

language of the instrument,’ Gibbons v. Ogden, 9

Wheat. 1, 186-189, 6 L.Ed. 23 (1824), which offers a

‘fixed standard’ for ascertaining what our founding

document means, 1 J. Story, Commentaries on the

Constitution of the United States § 399, p. 383

(1833).”); New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1, 22-25 (2022) (applying the text of

the Second Amendment and looking to history and

tradition to evaluate any claimed limits on the scope

of such textual commands); Kennedy v. Bremerton Sch.

Dist., 597 U.S. 507, 536 (2022) (“An analysis focused

on original meaning and history, this Court has

stressed, has long represented the rule[.]”).

The complement to this textual emphasis is a

rejection of nebulous claims of constitutional

commands in the ether—or of squinting hard to find

things that are not there. See Dobbs, 597 U.S. at 332

n.* (2022) (THOMAS, J., concurring) (noting the “facial

absurdity of Griswold’s penumbral argument”);

United States v. Arthrex, Inc., 594 U.S. 1, 58 (2021)

(THOMAS, J., dissenting, joined by Breyer, Sotomayor,

and Kagan, J.J.) (“I would not be so quick to stare

deeply into the penumbras of the Clauses to identify

new structural limitations” from the Appointments or

Vesting Clauses).

Indeed, this Court has regularly criticized more

free-wheeling approaches as inappropriate judicial

policymaking. See Dobbs, 597 U.S. at 240 (failure to

interpret constitutional text according to history and

tradition leads to the “freewheeling judicial

policymaking that characterized discredited decisions

such as Lochner * * *. The Court must not fall prey to

such an unprincipled approach.”).

Just as policy, preference, or evolving practice and

circumstance will not be allowed to functionally delete

constitutional text, nor can it be allowed to blue-pencil

in further requirements that are not there. Compare

Bruen, 597 U.S. at 22-23, 33, 36 (cannot ignore text of

Second Amendment), with Dobbs, 597 U.S. at 235, 300

(cannot add protections to the Constitution that are

not supported by the text). Presidential immunity

from the very laws he is tasked with faithfully

executing is not provided by the Constitution.

Whether such immunity is good policy or bad, where

the lines should be drawn, and other such questions

are not the purview of this Court. If Congress wishes

to amend its laws to exempt Presidents from

compliance, it presumably can do so, subject to any

other constitutional constraints on the legislative

power. But there is no “dormant” immunity from

legislation—and especially from criminal laws—and

this Court should not invent such immunity or expand

upon its previous forays into legislative policymaking.

The Text of the Constitution Does Not

Create Presidential Immunity from

Federal Law.

Nothing in the text of the Constitution grants

Presidents immunity from federal law. Unlike the

flawed readings, inferences, and emanations relied

upon by Petitioner, when the Framers of the

Constitution sought to provide immunity, they did so

expressly. Article I, section 6, of the Constitution

provides that “The Senators and Representatives * * *

shall in all Cases, except Treason, Felony and Breach

of the Peace, be privileged from Arrest during their

Attendance at the Session of their respective Houses,

and in going to and returning from the same; and for

any Speech or Debate in either House, they shall not

be questioned in any other Place.” U.S. Const. art. I,

§ 6.

Such immunity as the Constitution provides is not

absolute but is limited to the specific facts and

circumstances deemed appropriate by the Framers,

with “speech or Debate in either House” receiving the

most protection from external consequences, whereas

“Treason, Felony and Breach of the Peace” being

exempted from any immunity at all and other crimes

being given only limited immunity as to the time and

place where arrests may occur. 2

Petitioner, by contrast, seeks far broader immunity

yet can point to no comparable clause in the

Constitution that even provides the limited immunity

given Senators and Representatives. Under ordinary

principles of textual interpretation, the detailed

provision of immunity as to some elected officials and

the absence of any such textual immunity as to the

President would be compelling evidence that such

claimed immunity does not exist.

Jennings v.

Rodriguez, 583 U.S. 281, 300 (2018) (“express

exception to detention implies that there are no other”

exceptions) (citing Antonin Scalia & Bryan A. Garner,

Reading Law 107 (2012) (“Negative–Implication

Canon[:] The expression of one thing implies the

2 The

Eleventh Amendment similarly provides express

immunity from the federal judicial power for States sued by

“Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. This Court has,

unfortunately, read more into that limited immunity than the

text supports. See Hans v. Louisiana, 134 U.S. 1 (1890)

(expanding Eleventh Amendment Immunity beyond the terms of

the Amendment); see also John F. Manning, The Eleventh

Amendment and the Reading of Precise Constitutional Texts, 113

Yale L.J. 1663, 1670 (2004) (criticizing counter-textual

interpretation of the Eleventh Amendment). That expansion

would not likely survive de novo application of this Court’s

current methodological emphasis on text and a proper reticence

toward judicial policymaking.

exclusion of others (expressio unius est exclusio

alterius)). Given the express immunity the Framers

plainly knew how to provide, the absence of express

Presidential immunity from federal criminal law is

compelling evidence that such immunity does not

exist.

The few clauses misconstrued by Petitioner either

say nothing about immunity or squarely support the

opposite conclusion.

1. The Vesting Clause. Petitioner, at 10-16,

relies initially on the Vesting Clause of Article II, § 1

of the Constitution, which provides that “[t]he

executive Power shall be vested in a President of the

United States of America.” U.S. Const. art. II, § 1.

Such “executive” power requires something to execute,

with the objects being defined by the Constitution

itself or the laws enacted by Congress. And, indeed,

Section 3 of Article II specifically requires that the

President “shall take Care that the Laws be faithfully

executed.”

The notion that the constitutional

command to “faithfully” execute the laws somehow

provides immunity from those very laws seems like an

oxymoron on its face. One cannot faithfully execute

the law by violating the law, much less violating the

law in its most serious and weighty form—enacted

criminal prohibitions.

But assuming, arguendo, a plausible claim that

two different portions of the law are in tension—a

supposed constitutional delegation of absolute

discretion versus a legislative limitation on such

discretion, perhaps—there is ample precedent for

dealing with such claimed conflicts of law and deciding

which prevails: preemption doctrine. Under standard

preemption doctrine addressing whether one law

supersedes another, courts have noted three species of

preemption: express preemption, conflict preemption,

and field preemption. Virginia Uranium, Inc. v.

Warren, 587 U.S. --, 139 S. Ct. 1894, 1911-1912 (2019)

(Ginsburg, J., concurring) (discussing three categories

of federal preemption of state law). That approach can

equally be applied to claims that one provision of

federal or constitutional law preempts or supersedes

another purportedly inferior provision of federal or

constitutional law.

The first species, express preemption of federal

criminal law (i.e., express presidential immunity from

federal criminal law) does not exist here. The third,

field preemption of criminal law inferred from the

mere delegation of presidential power, is questionable

on its face, generally requires fully comprehensive

regulation of the field at issue, and has been rejected

as applied to other constitutional delegations of power.

Virginia Uranium, 587 U.S. at --, 139 S. Ct. at 1912

(Ginsburg, J., concurring) (preemption when

“‘Congress has legislated comprehensively to occupy

an entire field of regulation, leaving no room for the

States to supplement federal law.’” (citation omitted));

National Pork Producers Council v. Ross, 598 U.S.

356, 370 (2023) (rejecting broad dormant Commerce

Clause claim and noting critiques of earlier dormant

Commerce Clause cases as not based on text).

That leaves only a claim of conflict preemption.

Such preemption occurs when it is impossible to

comply with conflicting commands or when two

commands logically contradict even if they are not

impossible to satisfy simultaneously.

Virginia

Uranium, 587 U.S. at --, 139 S. Ct. at 1912 (Ginsburg,

J., concurring) (actual conflict where cannot comply

with both requirements); Merck Sharp & Dohme Corp.

v. Albrecht, 587 U.S. 299, 314 (2019) (conflict

preemption based on impossibility, and the mere

“‘possibility of impossibility [is] not enough’” (citation

omitted)); Kansas v. Garcia, 589 U.S. --, 140 S. Ct. 791,

808 (2020) (THOMAS, J., concurring, joined by

GORSUCH, J.) (“‘[F]ederal law pre-empts state law only

if the two are in logical contradiction.’” (quoting

Albrecht, 587 U.S. at 319 (THOMAS, J., concurring)). 3

A claim of presidential immunity from a criminal

prohibition is tantamount to a claim that the

Constitution’s delegation of certain executive powers

conflicts with and preempts its delegation and the

subsequent exercise of legislative powers and

3 A more questionable form of conflict preemption is sometimes

applied where a state law “creates an unacceptable ‘obstacle to

the accomplishment and execution of the full purposes and

objectives of Congress,’” Wyeth v. Levine, 555 U.S. 555, 563-564

(2009) (citation omitted). Reliance on such nebulous and

speculative “purposes and objectives: as the basis for preemption

has been rightly criticized as non-textual and inappropriate.

Rutledge v. Pharm. Care Mgmt. Ass’n, 592 U.S. 80, 92, 95 (2020)

(THOMAS, J., concurring) (criticizing “purposes and objectives”

preemption as having “veered from the text” of the relevant

statutes being analyzed); Kansas v. Garcia, 589 U.S. at --, 140

S. Ct. at 808 (2020) (THOMAS, J., concurring (joined by GORSUCH,

J.) (“The doctrine of ‘purposes and objectives’ pre-emption

impermissibly rests on judicial guesswork about ‘broad federal

policy objectives, legislative history, or generalized notions of

congressional purposes that are not contained within the text of

federal law.’” (citation omitted)); id. (“I therefore cannot apply

‘purposes and objectives’ pre-emption doctrine, as it is contrary to

the Supremacy Clause.[]” (footnote omitted)); id. (“the Court

correctly distinguishes our ‘purposes and objectives’ precedents

and does not engage in a ‘“freewheeling judicial inquiry into

whether a state statute is in tension with federal objectives.”’”

(citations omitted)).

preempts the exercise of other executive powers by a

successor President. But ordinary conflict preemption

takes a narrow view of such preemption, with

impossibility read narrowly. See Albrecht, 587 U.S. at

314 (“we have refused to find clear evidence of such

impossibility where the laws of one sovereign permit

an activity that the laws of the other sovereign restrict

or even prohibit” (citing cases)). And it certainly would

not extend to claims of merely chilling a President

from approaching the line of illegality and hence being

reluctant to act “boldly” in circumstances that test the

limits of the criminal law.

Even assuming some potential conflict where

criminal process initiated against a sitting President

would interfere with the current execution of the

duties of the presidency, such a conflict does not apply

here. Prosecution did not commence until after

Petitioner had left office, and hence it does not conflict

with the current performance of the duties of office. 4

The claim that the mere threat of prosecution would

deter future Presidents from performing the duties of

4 And even assuming that prosecution of a sitting President for

alleged federal crimes interfered with his performance of his

duties, the Constitution recognizes that Presidents may not

always be capable of performing their duties and makes provision

accordingly. See U.S. Const. art. I, § 1, cl. 6 (“In Case of the * * *

Inability [of the President] to discharge the Powers and Duties of

the said Office, the Same shall devolve on the Vice President”).

An “inability” to perform the duties of office, due to probable

cause to believe a President has committed a federal crime and

thus faces legal peril, does not upend the constitutional allocation

of powers, it merely triggers a contingent allocation to the Vice

President. Circumventing that constitutional process in the

name of supposed field or conflict preemption is a distortion of the

constitutional text.

office in the bold manner they might prefer (or in bold

disregard of federal criminal law) is wild speculation.

(What is certain, however, is that immunity for former

Presidents will directly interfere with a sitting

President’s authority to faithfully execute federal

criminal law.) In any event, deterring Presidents from

committing federal felonies seems like a feature, not a

bug. But feature or bug, that is a policy question not

to be asked or answered by this Court absent some text

in the Constitution requiring it to do so.

Because the mere vesting of authority to execute

the laws does not expressly or logically confer absolute

discretion in the President to violate such laws, there

would be no conflict preemption between Congress’

authority to enact general criminal laws and the

President’s authority and obligation to “faithfully”

execute those and other laws.

2. The Impeachment Clause. The other textual

provisions relied upon by Petitioner involve

impeachment and the supposed implications of that

Congressional power and its consequences. Pet. Br.

16-22. The executive branch Impeachment Clause

provides that “The President, Vice President and all

civil Officers of the United States, shall be removed

from Office on Impeachment for, and Conviction of,

Treason, Bribery, or other high Crimes and

Misdemeanors.”

U.S. Const. art. II, § 4.

The

Impeachment Judgment Clause further provides that

“Judgment in Cases of Impeachment shall not extend

further than to removal from Office, and

disqualification to hold and enjoy any Office of honor,

Trust or Profit under the United States: but the Party

convicted shall nevertheless be liable and subject to

Indictment, Trial, Judgment and Punishment,

according to Law.” U.S. Const. art. I, § 3, cl. 7.

Petitioner would read the latter Clause as setting

a condition precedent for subsequent liability. Pet. Br.

16 (“By specifying that only the ‘Party convicted’ may

be subject to criminal prosecution, the Clause dictates

the President cannot be prosecuted unless he is first

impeached and convicted by the Senate.” (emphasis

added)). But, as always, reading is fundamental, and

even a cursory glance at the constitutional text belies

any claim of a condition precedent. Nowhere is the

word “only” found in the Impeachment Judgment

Clause. Nowhere does it say that absent conviction

the President or other officer impeached may not be

subject to indictment, trial, judgment, and

punishment.

Rather, the plain reading of the Clause indicates

that impeachment and conviction themselves have

only

limited

consequences—removal

and

disqualification—but do not preclude other available

consequences for the underlying conduct itself. It is

quite plainly written as a negation of any inferred

double jeopardy bar given the language of “conviction,”

thus making clear that conviction on impeachment

“nevertheless” does not provide immunity for the

otherwise ordinary consequences of felonious conduct.

Nothing in the language “presupposes that an

unimpeached and un-convicted President is immune

from prosecution.” Pet. Br. 17. Indeed, it presupposes

the exact opposite—that even conviction by the Senate

would not preclude indictment, trial, etc. Petitioner’s

reading would effectively turn an “also”—“may

nevertheless be liable”—into an “only.” But the Clause

only limits the direct legal consequences of conviction

by the Senate, not the preexisting and potential future

consequences from other legal processes.

Even the passage from Alexander Hamilton cited

by Petitioner, at 17, confirms this anti-immunity

reading of that Clause. Hamilton wrote that:

The punishment which may be the

consequence of conviction upon impeachment,

is not to terminate the chastisement of the

offender. After having been sentenced to a

perpetual ostracism from the esteem and

confidence, and honors and emoluments of his

country, he will still be liable to prosecution

and punishment in the ordinary course of law.

The Federalist No. 65, at 440 (Easton Press ed. 1979)

(Hamilton).

The punishment and consequence to which

Hamilton initially refers is the removal from office, bar

from future offices, and the shame and ignominy of

having been impeached and convicted. But Hamilton

then says that, even after such dire consequences, the

impeached person will “still be liable to prosecution

and punishment in the ordinary course of law.” Id.

(emphasis added).

That description perfectly

comports with the anti-double-jeopardy function

reflected in the actual language and confirms that the

preexisting state of jeopardy to prosecution and

punishment still remains, notwithstanding the

separate consequences of conviction by the Senate.

That later statements in The Federalist Nos. 69 and

77 refer to prosecutions that could occur “afterwards”

or “subsequent” to conviction by the Senate, Pet. Br.

18, is consistent with an anti-double-jeopardy reading

of the Clause, at no time suggest that such

prosecutions may only occur after a conviction, and

likely reflect the reality that “the ordinary course of

the law” would take time or, equally likely, the fact

that a sitting President would never be prosecuted by

the very federal officers who answer to him. That

prosecution for federal crimes would, as a practical

matter, have to wait until a particular President left

office (by Senate conviction or by expiration of term)

and no longer controlled federal law enforcement, does

not support the far broader claim that Senate

conviction was a constitutional condition precedent for

criminal prosecution. 5 A former President, however he

came by such status, is subject to prosecution and

conviction for federal crimes as both a practical

statement of fact and as a legal principle absent some

express immunity in the Constitution or laws.

Far from supporting an inference of immunity

absent Senate conviction, the Impeachment Judgment

Clause

thus

supports

the

exact

opposite

understanding of the existence of separate legal

5 Hamilton

also viewed the separation of the adjudicators

between the civil (impeachment) and criminal (prosecution and

punishment) consequences of a crime to be for the benefit of the

person impeached. The Federalist No. 65, at 440 (“Would it be

proper that the persons who had disposed of his fame, and his

most valuable rights as a citizen, in one trial, should, in another

trial, for the same offense, be also the disposers of his life and his

fortune? Would there not be the greatest reason to apprehend,

that error, in the first sentence, would be the parent of error in

the second sentence?”). That same concern, of course, applies

equally to error in the acquittal of a of an impeached person (a

political decision) not being allowed to predetermine the legal

decision concerning whether a crime has been committed and the

proper punishment therefor.

jeopardy for a President or other federal officials who

violate criminal laws. 6

6 Petitioner’s interpretation also conflicts with what members

of the Senate understood the Clause to mean, with Majority

Leader McConnell voting against conviction precisely because he

believed the Impeachment Clause did not apply to former office

holders and that the issue was best left to the criminal justice

system. READ: McConnell Speech After Trump’s Impeachment

Trial Acquittal, U.S. News & World Rep. (Feb. 14, 2021)

(“Impeachment, conviction, and removal are a specific intragovernmental safety valve. It is not the criminal justice system,

where individual accountability is the paramount goal. * * *

Indeed, Justice Story specifically reminded that while former

officials were not eligible for impeachment or conviction, they

were – and this is extremely important – ‘still liable to be tried

and punished in the ordinary tribunals of justice.’ * * * We have

a criminal justice system in this country. We have civil litigation.

And former presidents are not immune from being held

accountable by either one.”), https://tinyurl.com/mhxh2sns.

But one simply cannot have it both ways. If the Impeachment

Clause does not allow conviction of Presidents after they have left

office, even for conduct while in office, then it likewise cannot

insulate such former office holders, now private citizens, from

criminal prosecution, even for past acts while in office. If the

Impeachment Clause were both inoperative as to former

officeholders and yet still a prerequisite to criminal

accountability, then any criminality engaged in near, or

discovered after, the end of office would be completely immune,

not merely contingently so.

And, of course, there is the debate about whether a President

can pardon himself, meaning that if illegal conduct aimed at

usurping an election were successful, the illegitimate office

holder could then, prior to conviction by the Senate, pardon

himself for the crimes that accreted the power in the first place.

Relying on impeachment as a gatekeeper for criminal

responsibility not only contradicts the actual text, it offers only

an illusory remedy at best.

3. The “Structure” of the Constitution. Resort

to the structure of the Constitution, or abstract claims

of separation of powers, likewise do not support

immunity. As an initial matter, claimed structural

powers or immunities must still be based on the text

of the Constitution, and the mere vesting of certain

powers in the President does not imply that the

exercise of such powers is not subject to the rule of law

or the consequences for violating the law. Indeed, the

Constitution itself constrains the conduct of

Presidents and other officers, for example, in

prohibiting them from accepting, without the consent

of Congress, “any present, Emolument, Office, or Title,

of any kind whatever, from any King, Prince, or

foreign State.” U.S. Const. art. I, § 9, cl. 8. It would be

peculiar, to say the least, that a President would be

immune from a federal law enforcing that

constitutional constraint. And there is no principled

basis for line drawing where Congress exercises other

legislative authority to make certain acts criminal.

Furthermore, the “structure” of the Constitution

can often be the equivalent of an inkblot onto which

judges read what they want to read. Some will

emphasize separation, some will emphasize legislative

supremacy, some will emphasize states’ rights, and

some will emphasize the value of a bold presidency,

right up until political fortunes change and litigants

and jurists see fit to emphasize something else. To

leave constitutional interpretation to such hazy and

subjective multi-valent tests is no better than the

broad purposivism decried by many on this Court in

the statutory context. Garcia, 589 U.S. at --, 140 S. Ct.

at 808 (THOMAS, J., concurring, joined by GORSUCH, J.)

(criticizing analysis of a statute’s “purposes and

objectives” as involving “freewheeling judicial inquiry”

and

“atextual

speculation

about

legislative

intentions”); Murphy v. National Collegiate Athletic

Ass’n, 584 U.S. 453, 490 (2018) (THOMAS, J.,

concurring) (“Because we have ‘“a Government of laws,

not of men,”’ we are governed by ‘legislated text,’ not

‘legislators’ intentions’—and especially not legislators’

hypothetical intentions.” (quoting Justice Scalia

dissent) (citation omitted)).

If we have learned anything from the past decades

of jurisprudential analysis, it is that most documents

have multiple and often conflicting purposes, are the

product of compromise, not Kantian principle, and

that the best way of knowing what a document

intended to include or exclude is the text of that

document and the original public meaning of the

words used. If constitutional “structure” is to carry the

day, then certainly any meaning read into that

structure must give great weight to the textual context

of express immunity provisions for Senators and

Representatives and the absence of any comparable

express immunity for Presidents.

To resort to

overarching “purpose” or “structure” to add or subtract

from the text of a statute or the Constitution, or to

emphasize or diminish one or another conflicting

purpose, is a resetting of the constitutional and

legislative compromises struck, and a task for which

this Court is unsuited and unauthorized.

Past Immunity Cases Are Not Based on

the Text of the Constitution.

Absent direct textual support for immunity in the

Constitution, Petitioner is left to focus primarily on

past cases addressing limited instances of presidential

immunity

circumstances

involving

truly

discretionary functions of a President. Pet. Br. 10-24.

Those cases are unnervingly short on textual analysis

of the Constitution and long on policy discussions

about what would be a desirable answer.

Regarding the cases cited by Petitioner. Amici

leave it to Respondent and others to address the finer

points and limitations of those cases. They note only

that such cases lack textual basis for their various

immunities and should be limited to situations where

the Constitution, at a minimum, grants express

discretion to the President that cannot be constrained

by law. Compare U.S. Const. art. II, § 3 (President

“shall from time to time give to the Congress

Information of the State of the Union, and recommend

to their Consideration such Measures as he shall judge

necessary and expedient” (emphasis added)), with id.

(President “shall take Care that the Laws be faithfully

executed”), and id. § 2, cl. 2 (“Congress may by Law

vest the Appointment of such inferior Officers, as they

think proper, in the President alone, in the Courts of

Law, or in the Heads of Departments”).

Insofar as faithfully executing the laws is, by

definition, constrained by such laws themselves, it is

hard to imagine that violating federal criminal laws

could fall within the absolute discretion of a President

and hence be immunized. Suggestions to the contrary

typically turn on the Court’s views regarding prior

common-law as applied to Kings, not Presidents, and

considerations of “‘public policy and convenience.’”

Nixon v. Fitzgerald, 457 U.S. 731, 744-745 (1982)

(citation omitted); see also id. at 748 (“Because the

Presidency did not exist through most of the

development of common law, any historical analysis

must draw its evidence primarily from our

constitutional heritage and structure.

Historical

inquiry thus merges almost at its inception with the

kind of “public policy” analysis appropriately

undertaken by a federal court.”); Trump v. Vance, 591

U.S. 786, 140 S. Ct. 2412, 2426 (2020) (in discussing

state-law subpoena power against a President, court

addressed the perceived consequences of liability and

similar public policy arguments without specific

constitutional text beyond general reference to Article

II and claimed necessity for the proper functioning of

the government); cf. Marbury v. Madison, 5 U.S. (1

Cranch) 137, 165-166 (1803) (discussing Presidential

authority regarding discretionary “political” decisions

and limiting analysis to “cases in which the executive

possesses a constitutional or legal discretion”).

Policy-driven incredulity at the absence of

immunity, and resort to the supposed importation of

common law to grant Presidents the immunities of

Kings, Nixon, 457 U.S. at 746, is a stretch, to say the

least. Collins v. Virginia, 584 U.S. 586, 607-608 (2018)

(THOMAS, J., concurring) (other than a few limited

“narrow enclaves” of judicial lawmaking authority

that are either delegated “from the Constitution or a

federal statute,” or otherwise “questionable” in their

preemptive force, “‘the general rule is that ‘[t]here is

no federal general common law’”) (quoting Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938). But even so,

it is one thing to allow such untethered judicial

policymaking to override a President’s individual civil

liability for official conduct, it is quite a different

matter to deem such non-textual judicial policymaking sufficient to override federal criminal law.

At least one member of this Court has questioned

the foundations of even qualified immunity. See

Ziglar v. Abbasi, 582 U.S. 120, 159-60 (2017) (THOMAS,

J., concurring in part and concurring in the judgment)

(“Our qualified immunity precedents instead

represent precisely the sort of ‘freewheeling policy

choice[s]’ that we have previously disclaimed the

power to make.”; “‘We do not have a license to establish

immunities from’” suits brought under the Act “‘in the

interests of what we judge to be sound public policy’”;

“The Constitution assigns this kind of balancing to

Congress, not the Courts.” (citations omitted)); Baxter

v. Bracey, 140 S. Ct. 1862, 1862-64 (2020) (THOMAS, J.,

dissenting from the denial of certiorari) (“The text of §

1983 “‘ma[kes] no mention of defenses or

immunities.’”; “the defense for good-faith official

conduct appears to have been limited to authorized

actions within the officer’s jurisdiction. * * * An

officer who acts unconstitutionally might therefore fall

within the exception to a common-law good-faith

defense.” (citations omitted)). The similarly weak

foundations of the absolute immunity from federal

criminal law claimed here should give the entire Court

pause before expanding upon past cases.

II. Policy Considerations and Line Drawing

Are for Congress, Not this Court.

Given the required fidelity of the President to the

“Law,” the only real source of immunity must come

from federal law itself. Whether that is in the form of

an express immunity provision or in the form of

ordinary statutory interpretation suggesting that a

specific law does not apply to particular presidential

conduct, this Court should not place its collective

thumb on the scale or indulge its own policy

preferences. See Robert H. Bork, Neutral Principles

and Some First Amendment Problems, 47 Ind. L.J. 1,

6, 8 (1971) (“a legitimate Court must be controlled by

principles exterior to the will of the Justice”; “Where

constitutional materials do not clearly specify the

value to be preferred, there is no principled way to

prefer any claimed human value to any other. The

judge must stick close to the text and the history, and

their fair implications[.]”).

As for where to draw any immunity lines, as asked

by the question presented, such lines are not and

should not be a function of immunity doctrine, but

rather

ordinary

function

statutory

interpretation. There are ample rules of statutory

interpretation that serve to reduce the risk of

excessive or abusive prosecution. The rule of lenity

serves both due process notice requirements and the

separation of powers by requiring crimes to be defined

by Congress, not the executive branch. Cargill v.

Garland, 57 F.4th 447, 470-471 (5th Cir. 2023) (en

banc), cert. granted, 144 S. Ct. 374 (2023); see also id.

at 473 (Ho, J., concurring in part and concurring in the

judgment) (“The rule of lenity rests on ‘the principle

that the power of punishment is vested in the

legislative, not in the judicial department.’ * * * The

rule also ensures fair notice to citizens: ‘To make the

warning fair, * * * the line should be clear.’” (citations

omitted)). Mens rea principles limit when innocent

conduct can lead to criminal liability. Staples v.

United States, 511 U.S. 600, 605 (1994) (“[t]he

existence of a mens rea is the rule of, rather than the

exception to, the principles of Anglo–American

criminal jurisprudence.” (cleaned up)). Each of these

would apply equally to a President or a pauper facing

criminal charges. This Court should not make special

rules for Presidents where the Constitution or federal

statutes do not provide such rules themselves.

The difficulty with any line drawing purporting to

supersede interpretation of the relevant laws is that it

will inevitably be an exercise in subjective judicial

policymaking. What functions are discretionary and

what others are constrained by law? Does the

President ever have discretion to disobey the criminal

law? The Constitution? Numerous examples readily

illustrate the problem and demonstrate that

Petitioner’s claimed immunity for all official acts to

the outer bounds of executive authority proves too

much. Cf. Dobbs, 597 U.S. at 257 (“appeals to a

broader right to autonomy and to define one’s ‘concept

of existence’ prove too much. * * * Those criteria, at a

high level of generality, could license fundamental

rights to illicit drug use, prostitution, and the like.”

(citation omitted)).

Even assuming immunity is limited to “official

acts,” much less encompasses the “outer bounds” of

such acts, any President willing to commit a felony

would be equally willing to claim it was an official act.

The simplest example is bribery. Were a President

to accept an explicit bribe to perform an official act in

a particular manner, even a discretionary act, that

would presumably fall within Petitioner’s claimed

immunity. One billion dollars to the personal accounts

of the President or his family to sell arms to country

X? To lift sanctions on country Y? To prosecute a

business competitor? To launch an air strike against

a foreign political opponent? Even a clear quid pro quo

for the performance of an official act presumably

involves official conduct of the President. If it exceeds

the bounds of such conduct, it is only because Congress

has made it a crime for government officials to take

bribes. Either the bounds of official conduct are

delimited by federal criminal law or a whole host of

behavior is suddenly immunized. Any other lines

adopted by this Court that are not based on the

express text of the Constitution or federal statute

amount to nothing more than judicial speculation or

policymaking.

Other examples in the parade of horribles abound.

In the example discussed at the D.C. Circuit, if the

President, purporting to act in his capacity as

Commander in Chief, ordered members of the military

to execute a political rival, that would properly be

understood as an illegal order violating the

Constitution, any number of criminal statutes, and the

Uniform Code of Military Justice. See Br. for Three

Former Senior Military Officers and Executive Branch

Officials as Amici Curiae Supporting Pet’r 4-13. But

it would presumably remain an “official act,” just an

illegal one. While it is laudable and comforting that

faithful members of the military would not obey such

an illegal order, id. at 7, 9-10 not every soldier (or

former soldier), might have such scruples. 7

But even accepting that no member of the military

would carry out such an order, what if the President

carried it out himself? Simply shoot a rival under the

pretense of military necessity or some other executive

function and claim immunity. And, for good measure,

shoot or threaten to shoot any Representative or

7 See

Marshall Cohen, 1 in 10 defendants from US Capitol

insurrection have military ties, CNN (May 28, 2021) (veterans

among those who attacked the Capitol and assaulted police

officers), https://tinyurl.com/yc55f943.

Senator supporting an impeachment or conviction,

and any judge or Justice who might rule against him,

as in league with foreign powers or domestic enemies

trying to undermine the Presidency. Cf. Kristen East,

Trump: I could ‘shoot somebody’ and I wouldn’t lose

voters, Politico (Jan. 23, 2016), https://tinyurl.com/

mrxxyckn. Surely the President has the power to

order violence in a variety of circumstances—war, selfdefense, defense of others, etc.—but the test of those

circumstances needs to be the law, not the policydriven preferences of judges defining what they would

view as the “outer bounds” of presidential authority.

Similarly, and a bit closer to current events, what

if the President, claiming that the Vice President was

illegally conspiring in election fraud, expressly

instructed a crowd to stop the Vice President by any

means possible. See Ashley Parker et al., How the

rioters who stormed the Capitol came dangerously

close to Pence, Wash. Post (Jan. 15, 2021) (January 6

mob chanted of “Hang Mike Pence!” and came close to

reaching the Vice President), https://tinyurl.com/

4cuzwpeh.

While an express call for the murder of a Vice

President, even one accused of violating the law, would

seem to violate any variety of laws and due process

principles, is it really beyond the “outer bounds” of the

President’s official acts, as contemplated by

Petitioner? On Petitioner’s theory, even a squarely

illegal act can be within the bounds of a President’s

official conduct, and it is the criminal law, not the

criminal conduct, that must yield.

Further compounding the problem, if a President is

acting within the outer bounds of his authority and

immune for criminal acts, it is hard to imagine a

cogent theory that would not equally immunize the

President’s subordinates acting at the direct command

of the President. Thus, a presidential order to murder

an opponent, a Member of Congress considering

impeachment, a judge or Justice that might rule

against him, or a witness in a case against him for prepresidential conduct, if immune, might well be

claimed to confer that same immunity on a

subordinate carrying out the act. And, of course, the

President also could pardon any subordinate for all

illegal acts committed pursuant to his immunityprotected order. 8

If the Court is looking for lines to draw, it should

look no further than federal criminal law itself, and

the neutral principles used to interpret such law for all

citizens. The Court should take a narrow view of what

Presidential conduct is “discretionary” and hold that

even otherwise “official” conduct that violates federal

criminal law is ultra vires and hence neither

discretionary nor immunized. 9

Offering special

solicitude for Presidents accused of federal crimes

based on some form of implied immunity from the

vesting of executive power lacks a textual basis in the

Constitution and creates its own separation of powers

problems by overriding the legislative power of

Congress and the executive power of the subsequent

8 It is thus little comfort that some might refuse such orders.

Many others have been and might be more than willing to carry

out illegal acts in seeming fealty to a President.

9 Article II’s command that a President “take Care that the

Laws be faithfully executed” provides as good a basis as any for

holding, at a minimum, that intentional or reckless violations of

federal criminal laws are not part of the “faithful[]” execution of

the laws. U.S. Const. art. II, § 3.

President seeking faithfully to enforce such criminal

laws.

If the ordinary constraints on criminal

prosecutions are thought to be inadequate protection

for a President and hence a poor way of running the

country, that is a legislative problem to be handled by

Congress or via constitutional amendment.

Indeed, to the extent the Court is tempted to put a

thumb on the scales via a clear statement rule or the

like, such a rule would be a far more credible reason to

reject any claimed immunity absent a clear statement

in the Constitution or the laws. A President free to

commit crimes with impunity is such a remarkable

proposition that one should hesitate to infer it from

mere ambiguity or from penumbras, emanations,

policy arguments, or even perceived structural

patterns in the Constitution.

CONCLUSION

The text of the Constitution makes no provision for

presidential immunity from the requirements of

federal law or the consequences of violating such laws.

This Court should not manufacture such immunity,

but instead should interpret the laws as they would for

any other citizen, apply the laws as the facts require,

and avoid any policy-based thumbs on the scale for

Petitioner in this case or for Presidents in general.

Because the D.C. Circuit reached the correct result in

denying a claim of presidential immunity, this Court

should affirm on the question presented.

Respectfully submitted,