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

Supreme Court briefApr 8, 2024

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No. 23-939

IN THE

DONALD J. TRUMP,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the

District of Columbia Circuit

BRIEF OF PROFESSOR MARTIN S. LEDERMAN

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT

Martin S. Lederman

Counsel of Record

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 662-9937

msl46@georgetown.edu

Table of Contents

Table of Authorities .................................................... ii

Interest of Amicus ....................................................... 1

Introduction ................................................................. 1

Summary of Argument ................................................ 6

Argument ..................................................................... 8

I. The Constitution does not immunize a former

President from criminal trial or penalty for

abusing his official authority in violation of

federal statutes that validly prohibit such

abuse of office. ....................................................... 8

II. The charged criminal statutes apply to a

President’s abuse of official authority. ............... 10

A. There is no canon of construction that

precludes application of a generally

applicable statute to a President’s official

conduct absent a clear statement. ............... 12

B. The canon of constitutional avoidance does

not apply here. .............................................. 26

III. The charged statutory offenses do not raise any

significant constitutional questions as applied

to the official-capacity allegations here.............. 28

Conclusion.................................................................. 32

Table of Authorities

Cases

Page(s)

Alden v. Maine,

527 U.S. 706 (1999) ............................................. 2

Clinton v. Jones,

520 U.S. 681 (1997) ............................................. 4

County of Sacramento v. Lewis,

523 U.S. 833 (1998) ............................................. 2

Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Const. Trades Council,

485 U.S. 568 (1988) ........................................... 27

Franklin v. Massachusetts,

505 U.S. 788 (1992) ...................................... 15-18

Johnson v. Arteaga-Martinez,

596 U.S. 573 (2022) ........................................... 27

Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) .............................. 29

Nardone v. United States,

302 U.S. 379 (1937) ............................... 11, 21, 23

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ............. 2, 3, 5, 6, 8, 9, 15, 19

Pearson v. Callahan,

555 U.S. 223 (2009) ............................................. 2

iii

The Pocket Veto Case,

279 U.S. 655 (1929) ........................................... 29

Public Citizen v. U.S. Dep’t of Justice,

491 U.S. 440 (1989) ...................................... 18-19

Sale v. Haitian Centers Council,

509 U.S. 155 (1993) ........................................... 19

Salinas v. United States,

522 U.S. 52 (1997) ............................................. 31

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ............................................... 2

Trump v. Vance,

591 U.S. 786, 140 S. Ct. 2412 (2020) ................ 13

United States v. Burr,

25 F. Cas. 30 (C.C. Va. 1807) ................... 7, 12-15

United States v. Haldeman,

559 F.2d 31 (D.C. Cir. 1976) ....................... 23, 24

United States v. Klein,

80 U.S. (13 Wall.) 128 (1872) ............................ 29

United States v. Nixon,

417 U.S. 960 (1974) (mem.)............................... 24

United States v. Nixon,

418 U.S. 683 (1974) ..................................... 14, 31

United States v. Oakland Cannabis Buyers’

Coop.,

532 U.S. 483 (2001) ........................................... 26

United States v. Smith,

27 F. Cas. 1192 (C.C.D.N.Y. 1806) ................... 30

United States v. U.S. Dist. Ct. for the E.

Dist. of Mich.,

407 U.S. 297 (1972) ........................................... 22

U.S. Constitution and Statutes

Art. II, § 3................................................................ 15

Art. VI ..................................................................... 28

Amend. I ................................................................. 28

Amend. XII ............................................................. 30

5 U.S.C. § 704 ......................................................... 15

5 U.S.C. § 706(2)(A) ................................................ 15

5 U.S.C. § 7322(1) ................................................... 23

18 U.S.C. § 2(a) ....................................................... 25

18 U.S.C. § 175 ....................................................... 25

18 U.S.C. § 201 ....................................................... 24

18 U.S.C. § 202(c) ................................................... 23

18 U.S.C. § 371 ........................................... 11, 23, 24

18 U.S.C. § 596 ....................................................... 24

18 U.S.C. § 603 (1979) ............................................ 12

18 U.S.C. § 610 ....................................................... 25

18 U.S.C. § 1091 ..................................................... 25

18 U.S.C. § 1505 ................................................. 3, 15

18 U.S.C. § 1512(b) ................................................. 24

18 U.S.C. § 1512(c)(1) ....................................... 11, 24

18 U.S.C. § 1512(c)(1) ............................................. 11

18 U.S.C. § 1621 ..................................................... 24

18 U.S.C. § 1622 ..................................................... 24

18 U.S.C. § 2340 ..................................................... 25

18 U.S.C. § 2340A ................................................... 25

18 U.S.C. § 2442 ..................................................... 25

18 U.S.C. § 2511(2)(f) ............................................. 23

18 U.S.C. § 2511(3) (1968) ...................................... 22

28 U.S.C. § 458 (1995) ............................................ 18

50 U.S.C. § 1809(a) ................................................. 23

50 U.S.C. § 1811 ............................................... 22, 23

Administrative Procedure Act .......................... 15,16

Fed. R. Crim. P. 17(c) ........................................ 14-15

Foreign Intelligene Surveillance Act of 1978,

Pub. L. 95-511, 92 Stat. 1783 (1978) ........... 22-23

Pub. L. 90-351, § 802, 82 Stat. 197 (1968) ............. 22

Other Authorities

Application of 28 US.C. § 458 to Presidential

Appointments of Federal Judges, 19 Op.

O.L.C. 350 (1995) ......................................... 17-21

Brief of the Appellees, Franklin v.

Massachusetts, No. 91-1502 (1992) ................. 16

Brief for the Appellants, Franklin v.

Massachusetts, No. 91-1502 (1992) ................. 16

Closing of Government Offices in Memory of

Former President Eisenhower

(Apr. 1, 1969), .................................................... 20

The Constitutional Separation of Powers

Between the President and Congress,

20 Op. O.L.C. 124 (1996) ............................. 10, 20

In the Foreign Intelligence Surveillance Act

of 1978, Pub. L. 95-511, 92 Stat. 1783

(1978) ................................................................. 22

Judges—Appointment—Age Factor,

3 Op. O.L.C. 388 (1979) ..................................... 20

Marty Lederman, The Insignificance of

Trump’s “Immunity From Prosecution”

Argument, Lawfare, Feb. 27, 2024 ..................... 4

vii

Daniel J. Meltzer, Executive Defense of

Congressional Acts, 61 Duke L.J. 1183

(2012) ................................................................. 10

Memorandum for Egil Krogh, Staff

Assistant to the Counsel to the

President, from William H. Rehnquist,

Assistant Attorney General, Office of

Legal Counsel, Re: Closing of

Government Offices in Memory of

Former President Eisenhower (Apr. 1,

1969) ................................................................. 20

Memorandum for Richard T. Burress, Office

of the President, from Laurence H.

Silberman, Deputy Attorney General, Re:

Conflict of Interest Problems Arising out

of the President’s Nomination of Nelson

A. Rockefeller to be Vice President under

the Twenty-Fifth Amendment to the

Constitution (Aug. 28, 1974) ............................ 19

Memorandum for the United States as

Amicus Curiae, Nixon v. Fitzgerald, Nos.

79-1738 (Nov. 19, 1981) ................................... 11

Memorandum from Office of Legal Counsel,

Re: Application of the Freedom of

Information Act to the President (Jan.

30, 1973) ........................................................... 17

The President—Interpretation of 18 U.S.C.

§ 603 as Applicable to Activities in the

White House,

3 Op. O.L.C. 31, 38 (1979) ................................. 12

viii

Prosecution for Contempt of Congress of an

Executive Branch Official Who Has

Asserted a Claim of Executive Privilege,

8 Op. O.L.C. 101 (1984) ............................... 19, 29

Removal of Members of the Advisory

Council on Historic Preservation,

6 Op. O.L.C. 180 (1982) ..................................... 19

Standards of Conduct for Interrogation

under 18 U.S.C. §§ 2340–2340A, at 33–

35 (Aug. 1, 2002)................................................ 25

Status of Certain OLC Opinions in the

Aftermath of the Terrorist Attacks of

September 11, 2001

(Jan. 15, 2009) ................................................... 25

United States Assistance to Countries that

Shoot Down Civil Aircraft Involved in

Drug Trafficking,

18 Op. O.L.C. 148 (1994) ................................... 22

Visa Fraud Investigation, 8 Op. O.L.C. 284

(1984) ................................................................. 21

Interest of Amicus 1

Amicus is Professor from Practice at the

Georgetown University Law Center and Senior Fellow

of the GULC Supreme Court Institute. He has for

many years taught and written on constitutional law,

including on presidential authority. Amicus served as

Deputy Assistant Attorney General in the Department

of Justice Office of Legal Counsel from 2009 to 2010

and from 2021 to 2023, and as Attorney Advisor in

OLC from 1994 to 2002.

Introduction

In Part II of his brief, Petitioner asks the Court to

decide questions fundamentally different from the

immunity issue the Court has formulated as the

Question Presented—namely, (i) whether the statutes

Petitioner is alleged to have violated govern a

President’s official conduct at all, wholly apart from

criminal prosecution, and (ii) if so, whether they are

constitutional as applied to such conduct.

The

principal objective of this amicus brief is to explain

that the charged statutes do govern official-capacity

presidential conduct and that, at least as applied to

the discrete portion of the indictment against

Petitioner that describes such official-capacity

conduct, those statutes do not raise any serious

constitutional concerns.

No counsel for a party authored this brief in whole or in

part, and no person other than amicus made a monetary

contribution to its preparation or submission.

****

The Question Presented is “[w]hether and if so to

what extent … a former President enjoy[s]

presidential immunity from criminal prosecution for

conduct alleged to involve official acts during his

tenure in office.” Ordinarily, questions of immunity do

not concern whether the substantive laws at issue

bind the defendant; instead, the inquiry is whether a

manner of enforcing those statutes—such as a

damages action in a particular forum—is available.

Adjudication of immunity therefore typically proceeds

upon the assumption the defendant has violated a

valid law.

For example, when this Court decides that a state

enjoys sovereign immunity from private suits to

enforce federal law in a particular forum, that does not

mean the state is free to disregard the underlying law

or that the United States itself may not sue the state

in federal court, even for damages—to the contrary.

See, e.g., Alden v. Maine, 527 U.S. 706, 755–56 (1999);

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.14

(1996). Similarly, when a court determines that a law

enforcement officer is entitled to qualified immunity

from a damages action for violation of federal law, the

court assumes (or in some cases decides) that the

officer has violated the law, whether or not that legal

conclusion was clearly established; qualified

immunity therefore does not preclude enforcement of

the law via injunction or a criminal proceeding. See,

e.g., Pearson v. Callahan, 555 U.S. 223, 242–43 (2009);

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5

(1998).

Likewise, in Nixon v. Fitzgerald, 457 U.S. 731

(1982), the Court held that former President Nixon

was immune from a private damages suit for allegedly

approving the Air Force’s discharge of the plaintiff in

retaliation for his testimony to Congress. Such

immunity, the Court explained, “will not place the

President ‘above the law’” because it “merely precludes

a particular private remedy for alleged misconduct in

order to advance compelling public ends.” Id. at 758.

The Court thus assumed—and Nixon did not argue

otherwise—that the defendant might have violated

federal statutes, including a criminal prohibition (18

U.S.C. § 1505), if Fitzgerald’s allegations were sound.

Id. at 756.

So, too, the immunity question the Court has

formulated here is whether the Constitution precludes

the executive branch itself from prosecuting a former

President for acting in his official capacity to violate

presumptively valid statutory constraints.

Petitioner, however, has interposed a new and very

different question in Part II of his brief: He argues

there that the pertinent statutory prohibitions do not

or cannot limit a President’s official-capacity conduct

in the first instance, wholly apart from any question of

criminal prosecution. 2

****

Petitioner cites D. Ct. Doc. 114 (see Pet. Br. 37) to suggest

he raised these arguments below. He did not. Although he made

several other statutory arguments in that motion in the district

court, neither there nor elsewhere has Petitioner previously

argued that the charged statutes don’t or can’t regulate officialcapacity presidential conduct. Amicus takes no view on whether

this Court can and should adjudicate such a previously unraised

argument at this juncture.

Both the Question Presented and Petitioner’s new

statutory arguments are limited to any alleged

conduct Petitioner performed in his official capacity as

President. See Clinton v. Jones, 520 U.S. 681, 694

(1997) (the Court has never “suggested that the

President, or any other official, has an immunity that

extends beyond the scope of any action taken in an

official capacity”). Petitioner asserts (Pet. Br. 4) that

virtually all of his alleged acts involved such officialcapacity conduct. That is not so.

As amicus has elaborated elsewhere, 3 Petitioner

engaged in most of the alleged conduct in his personal

capacity, as part of an alleged conspiracy with private

parties (including Petitioner’s retained counsel) to

induce state and federal officials to take steps that

would lead to an official certification of Petitioner as

President-elect despite the conspirators’ knowledge

that he did not, in fact, win the 2020 election. It is

difficult to imagine how entering into such an

agreement with non-governmental actors to achieve

that impermissible objective, and the mine run of the

Petitioner’s alleged overt acts taken to achieve that

conspiratorial end, could possibly be deemed official

presidential conduct.

At least one discrete part of the indictment,

however, does describe actions Petitioner undertook in

his capacity as President—namely, his attempt “to use

the Justice Department to make knowingly false

claims of election fraud to officials in the targeted

Marty Lederman, The Insignificance of Trump’s

“Immunity From Prosecution” Argument, Lawfare, Feb. 27,

2024, https://www.lawfaremedia.org/article/the-insignificanceof-trump-s-immunity-from-prosecution-argument.

states through a formal letter under the Acting

Attorney General’s signature.” J.A. 215 (Indictment ¶

70). In particular, on December 27, 2020, Petitioner

proffered multiple false claims of election fraud to

Acting Attorney General Jeffrey Rosen and Acting

Deputy Attorney General Richard Donahue—

assertions the Department of Justice (DOJ) leaders

unequivocally had refuted repeatedly. Id. at 216 (¶

74). According to the indictment, when the Acting

Attorney General informed the President once more

that the Justice Department could not and would not

change the outcome of the election, the Defendant

responded: “Just say that the election was corrupt and

leave the rest to me and the Republican

congressmen.’” Id. Four days later, Petitioner again

raised with DOJ leaders “claims about election fraud

that Justice Department officials already had told him

were not true—and that the senior Justice

Department officials reiterated were false,” and

insinuated that if they did not do his bidding by

attesting to such sham allegations, he might remove

them and appoint a more receptive official as Acting

Attorney General. J.A. 217-18 (¶ 77-78).

Such an effort was analogous to President Nixon’s

alleged efforts to have the Air Force discharge Ernest

Fitzgerald, which this Court considered to be action

“taken in the former President's official capacity

during his tenure in office,” 457 U.S. at 733, see also

id. at 756–57, even if it was unlawful. See also infra

at 23-24 (describing President Nixon’s conspiracy to

have the CIA make false claims to the FBI in order to

derail the FBI’s Watergate investigation).

To be sure, if Petitioner tried to induce DOJ

officials to convey false accusations of election fraud in

order to pave the way for Petitioner to be wrongly

declared the President-elect, that conduct would have

been unlawful—indeed, a breach of his “take Care”

duty. Nevertheless, and in contrast to most of the

conduct alleged in the indictment, it clearly consisted

of a President engaging in “official acts” for purposes

of a Fitzgerald-like immunity analysis.

Accordingly, the indictment’s DOJ-specific

allegations ought to be the focus of any assessment of

whether the charged statutes applied to Petitioner’s

official presidential conduct and, if so, whether the

Constitution prohibits the executive branch from

using criminal process to enforce such valid laws

against a former President. 4

Summary of Argument

I. The Constitution does not immunize a former

President from criminal trial or penalty for violating

an otherwise valid federal criminal statute, even when

the alleged offenses involved official-capacity acts. In

contrast to Fitzgerald, where neither political branch

had determined that a suit was proper, conferral of

immunity from federal prosecution would contravene

the joint judgment of both political branches. Nothing

in the Constitution requires repudiation of that joint

assessment by cloaking the President with a unique

See also J.A. 202 (Indictment ¶ 31-f) (alleging that on

January 2, 2021, Petitioner said to the Georgia Secretary of State

that the Secretary might be subject to criminal prosecution if he

failed to “find” sufficient election fraud to secure the award of the

State’s electoral votes to Petitioner—a threat that Petitioner

might be understood to have made in his official capacity as

President).

form of immunity.

Moreover, deeply rooted

Department of Justice norms are a formidable check

on the possibility DOJ might cavalierly initiate

prosecutions that could seriously compromise

Presidents’ proper exercise of their constitutional

functions.

II. Each of the statutes charged here proscribes

inherently wrongful conduct and therefore they apply

to all persons who violate their substantive terms,

including U.S. Government officials. Congress did not

implicitly exempt presidential conduct from those

otherwise comprehensive malum in se prohibitions.

A. There is no canon of statutory construction that

a generally applicable law does not apply to a

President’s official actions absent a clear statement to

that effect. No holding of the Court supports it, and

such a rule would be inconsistent with decisions of this

Court and Chief Justice Marshall’s landmark decision

in Aaron Burr’s treason prosecution. Congress has

specifically exempted presidential (or presidentially

directed) conduct from such laws where appropriate.

Moreover, such a rule of construction would have an

alarming, unintended impact on many statutory

limitations that Congress surely anticipated would

constrain abuses of office by all U.S. Government

officials, including the President.

The canon of constitutional avoidance is

inapplicable here, where there is no textual ambiguity

and where few if any applications of the statutes to

official presidential acts would raise serious

constitutional concerns.

III. Even if one could conjure hypothetical cases

where application of the charged statutes to a former

President would raise a serious constitutional

question, this prosecution does not do so. The discrete

part of the indictment involving official presidential

conduct describes efforts to induce other Government

officials to violate the law in order to cause still other

officials to miscount presidential electoral votes and

issue an invalid designation of the President-elect,

even though Petitioner allegedly knew he was not duly

elected. Congress surely can prohibit such an abuse of

presidential authority.

Argument

The Constitution does not immunize a

former President from criminal trial or

penalty for abusing his official authority

in violation of federal statutes that

validly prohibit such abuse of office.

Because the Government and other amici

presumably will address the Question Presented

thoroughly, amicus confines his discussion of

immunity to a pair of salient points the court of

appeals did not emphasize.

First, in sharp contrast with Nixon v. Fitzgerald,

conferring immunity in a case such as this would

contravene the judgments of both political branches.

In Fitzgerald, it was unclear whether Congress

had authorized a civil remedy for violation of the

applicable statutes at all, see 457 U.S. at 740 n.20

(identifying but not deciding that question), let alone

against a former President. See also id. at 748 n.27

(expressly reserving the question of whether Congress

could constitutionally authorize private damage

actions for official-but-unlawful presidential conduct).

Here, by contrast, the immunity question arises with

respect to enforcement of statutory provisions that do

(and constitutionally may) prescribe criminal

penalties for inherently wrongful conduct that takes

the form of an abuse of presidential authority. See

infra Parts II-III.

Moreover, in Fitzgerald the executive branch

concluded

that

the

damages

action

was

inappropriate—indeed, unconstitutional—because of

the potentially baneful impact of such suits on

presidential decision-making. 5

In this case, by

contrast, DOJ has determined that it can prove beyond

a reasonable doubt that a former President misused

his authority to induce other Government officials to

themselves violate the law in order to achieve an

electoral outcome the President himself knew would

be invalid, and that prosecuting the former President

for such an extraordinary abuse of office will not

unduly chill future Presidents’ proper performance of

their constitutional duties.

There is nothing in constitutional text, history or

caselaw that requires a repudiation of that joint

political-branch assessment by cloaking the President

with a unique form of immunity.

Second, there is no prospect of inappropriate

interbranch influence where the Executive itself

prosecutes a former President. And, as countless

current and former DOJ officials can attest, deeply

See Memorandum for the United States as Amicus

Curiae, Nixon v. Fitzgerald, Nos. 79-1738, 80-945 (Nov. 19, 1981)

(endorsing the arguments in the Government’s submission in

Kissinger v. Halperin, No. 79-880 (June 22, 1981)).

ingrained institutional norms provide a formidable

check on the prospect of prosecutions that might

seriously compromise the proper exercise of the

President’s constitutional functions. See Daniel J.

Meltzer, Executive Defense of Congressional Acts, 61

Duke L.J. 1183, 1199–1202 and cases cited in note 94

(2012) (DOJ’s “strong tradition of defending acts of

Congress” does not extend to statutes “‘that encroach

upon the constitutional powers of the Presidency’—a

position that has been followed consistently by

presidential administrations”) (citation omitted); see

also The Constitutional Separation of Powers Between

the President and Congress, 20 Op. O.L.C. 124, 126

(1996) (“Executive branch lawyers … have a

constitutional obligation, one grounded not in

parochial institutional interests but in our

fundamental duty to safeguard the liberty of the

people, to assert and maintain the legitimate powers

and privileges of the President against inadvertent or

intentional congressional intrusion.”).

II.

The charged criminal statutes apply to a

President’s abuse of official authority.

In Part II of his brief, Petitioner argues that,

wholly apart from the question of the constitutionality

of criminal prosecution, the statutory prohibitions

charged in the indictment simply do not apply to

constrain “the President or his official acts” at all. Pet.

Br. 37.

That is not correct. Each of the charged statutes

proscribes inherently wrongful conduct, and therefore

they all employ broad, general terms such as

“whoever” or “persons” to indicate their application to

all persons who violate their terms, without exception.

Accordingly, those statutes prohibit government

actors, including federal officials and employees, from

abusing their governmental authorities (i) as part of a

conspiracy to “defraud the United States,” 18 U.S.C. §

371; (ii) in a conspiracy or attempt to “corruptly

obstruct[], influence[], or impede[] any official

proceeding,” id. §§ 1512(c)(2) & (k); or (iii) as part of a

conspiracy

designed

“injure”

individuals’

constitutional rights, id. § 241. See Nardone v. United

States, 302 U.S. 379, 384 (1937) (because of the “well

recognized principle” “that the sovereign is embraced

by general words of a statute intended to prevent

injury and wrong,” it was proper to apply a criminal

wiretapping statute “as it is written so as to include

within its sweep federal officers, as well as others”).

Petitioner does not dispute that the laws prohibit

other federal actors from abusing their authority. Yet

he argues that they must be construed to contain an

implied exception for the President alone. If that were

so, then every President would be free—at least

insofar as federal statutes are concerned—to conspire

to use the formidable powers of the office to defraud

the United States, including with respect to its

determination of who is lawfully entitled to be

President; to attempt to corruptly obstruct, influence

and impede official proceedings—indeed, to alter,

destroy or conceal documents in order to deny their

use in an official proceeding, see 18 U.S.C. § 1512(c)(1);

and to conspire to deny individuals’ constitutional

rights.

There is no basis for imputing to Congress such a

deeply counterintuitive design. To the contrary,

there’s every reason to assume Congress would have

concluded that “policy reasons for prohibiting such

abuses of power by the President as much as by any

other Government official are clearly present” and

therefore “that the President does, indeed, fall within

the terms” of a statute prohibiting such conduct. The

President—Interpretation of 18 U.S.C. § 603 as

Applicable to Activities in the White House, 3 Op.

O.L.C. 31, 38 (1979) (concluding that the President

was subject to a statute providing felony sanctions for

“[w]hoever” solicits or receives “any contribution of

money or other thing of value for any political purpose”

in specified federal buildings, id. at 32 (quoting what

was then 18 U.S.C. § 603 (1979)). 6

A. There is no canon of construction that

precludes application of a generally

applicable statute to a President’s official

conduct absent a clear statement.

Petitioner’s principal argument to the contrary is

that any generally applicable statute must be

construed not to apply “to the President or his official

acts” absent a clear statement to the contrary. Pet. Br.

37, 40. Yet there is no such canon of statutory

construction, as landmark cases involving the

In light of that OLC opinion, Attorney General Bell

investigated whether President Carter had violated the statute

at a 1978 White House luncheon (which would have triggered

See id. at 48–54

appointment of a special prosecutor).

(appending the AG’s report to the D.C. Circuit Special Prosecutor

Division). Bell concluded the matter was “so unsubstantiated

that no further investigation or prosecution is warranted, and

that no special prosecutor should be appointed.” Id. at 54.

application of general statutes to official-capacity

presidential conduct demonstrate.

In preparation for his trial for treason in 1807,

Aaron Burr asked Chief Justice Marshall, who was

presiding as Circuit Justice, to issue a subpoena duces

tecum to President Jefferson to appear in court with

official correspondence from the Governor of the

Louisiana Territory and other documents. See Trump

v. Vance, 591 U.S. 786, 140 S. Ct. 2412, 2421–24 (2020)

(recounting the Burr prosecution and the Jefferson

subpoena). Marshall recognized that a generally

applicable federal statute then in effect directed the

court to issue such a subpoena when requested by

“every … such person or persons accused or indicted of

[treason or another capital offense].” United States v.

Burr, 25 F. Cas. 30, 33 (No. 14,692d) (C.C. Va. 1807);

see also id. at 34–35 (construing the provision to

require a witness not only to appear but also to bring

any paper “of which the party praying it has a right to

avail himself as testimony”).

Marshall proceeded to examine in detail whether

the statute (and the parallel constitutional

requirement) applied to the President. The law itself,

he noted, contained “no exception whatever.” Burr, 35

F. Cas. at 34. “The obligation, therefore, of those

provisions is general; and it would seem that no person

could claim an exemption from them, but one who

would not be a witness.” Id. Marshall nevertheless

considered the possibility that if the common law of

evidence recognized an exception, perhaps such an

exception could likewise be implied in the statute. Yet

the “single reservation alluded to” in the British law of

evidence was “the case of the king”: It was “said to be

incompatible with his dignity to appear under the

process of the court.” Id. Marshall held, however, that

the common-law exception for the British monarch did

not carry over to the American chief executive. He

explained that “the principle of the English

constitution that the king can do no wrong, that no

blame can be imputed to him, that he cannot be named

in debate” does not apply to the American President.

Marshall therefore concluded that “the law does not

discriminate between the president and a privat

citizen,” and that neither the statute nor the Sixth

Amendment contained an implicit exemption for the

President from compulsory process. Id. “If, in any

court of the United States, it has ever been decided

that a subpoena cannot issue to the president, that

decision is unknown to this court.” Id.

That holding in Burr belies the notion that a

generally applicable law does not reach a President’s

official acts absent a clear statement. More recent

decisions of this Court in two cases involving President

Nixon’s official-capacity conduct are similarly

instructive.

In United States v. Nixon, 418 U.S. 683 (1974), the

Court reviewed a subpoena Judge Sirica had issued to

the President for tapes of Oval Office conversations

with other Government officials, pursuant to a

generally applicable statute that by its terms applies

to any “person to whom [the subpoena] is directed.”

Fed. R. Crim. P. 17(c). Before turning to the executive

privilege questions for which the Nixon decision is best

known, the Court addressed several arguments that

the subpoena did not comply with Rule 17(c). 418 U.S.

at 697–702. Neither the Court nor Nixon suggested

that Rule 17(c) might not apply to a subpoena for

official presidential materials, even though that Rule

lacks any “clear statement” of presidential coverage.

To be sure, citing the precedent of Chief Justice

Marshall’s decision in the Burr case and the

“deference” owed “to a coordinate branch of

Government,” the Court cautioned that appellate

review of a subpoena to a sitting President “should be

particularly meticulous to ensure that the standards

of Rule 17(c) have been correctly applied.” Id. at 702

(emphasis added). Yet both the Court and Nixon

apparently accepted that Rule 17 did, indeed, apply to

the presidential subpoena, in accord with Chief

Justice Marshall’s holding in Burr.

Similarly, in Nixon v. Fitzgerald, the plaintiff

alleged that by allegedly approving his dismissal from

the Air Force to discharge him in retaliation for his

congressional testimony, President Nixon had

violated, inter alia, 18 U.S.C. § 1505, which made it a

crime for “[w]hoever” to “corruptly … endeavor[] to

influence, obstruct, or impede … the due and proper

exercise of the power of inquiry under which any

inquiry or investigation is being had by … any

committee of either House.” Notably, Nixon did not

argue that he was exempt from the application of that

statute when he superintended the Air Force, nor did

any Justice of the Court call into question the criminal

statute’s

application

the

President,

notwithstanding that it lacks any clear statement of

presidential coverage. See 457 U.S. at 740 n.20

(reserving the question whether § 1505 created an

implied cause of action).

Petitioner cites only one decision of this Court,

Franklin v. Massachusetts, 505 U.S. 788 (1992), as

purported authority for his proposed “clear statement”

canon. Pet. Br. 37. Franklin, however, did not rely

upon or endorse any such categorical rule. In that

case, the Court examined whether the Administrative

Procedure Act’s provisions for judicial review of

whether an agency’s exercise of discretion is “arbitrary

and capricious,” see 5 U.S.C. §§ 704, 706(2)(A), applied

to President Bush’s exercise of a statutory authority to

declare the apportionment of seats in the House of

Representatives in light of census results. After

noting that the APA’s text does not “explicitly” either

include or exclude the President from the term

“agency,” 505 U.S. at 800, the Court held that

“[a]lthough the President's actions may still be

reviewed for constitutionality, … they are not

reviewable for abuse of discretion under the APA,” id.

at 801 (citations omitted).

That holding was entirely unremarkable in light

of the particular question about the President that the

Court addressed in Franklin, which the plaintiff

States did not even contest. 7 To begin with, the term

“agency” “would be a peculiar way to refer to the

President … since an ‘agency’ is generally understood

as being responsible to a principal.” 8 Furthermore, it

would have been groundbreaking and alarming for

Congress to have subjected the President’s decision-

See Brief of the Appellees, Franklin v. Massachusetts, No.

91-1502, at 113 n.36 (1992) (declining to take issue with the

Government’s argument that the President isn’t an “agency”

under the APA “since no action or omission by the President or

his staff has ever been called into question or otherwise put at

issue in this litigation”).

Brief for the Appellants, Franklin v. Massachusetts, No.

91-1502, at 30 n.16 (1992).

making not only to judicial review for arbitrariness,

but also, in many cases, to the requirement of noticeand-comment rulemaking and certain adjudicatory

procedures. Not surprisingly, then, for many decades

before Franklin Presidents had not considered

themselves to be governed by the APA and therefore

had not subjected their rulemaking to notice and

comment, and Congress had not questioned that

longstanding practice. 9

In light of that context, it was hardly surprising

that the Court in Franklin included the sentence upon

which Petitioner would place so much weight: “We

would require an express statement by Congress

before assuming it intended the President's

performance of his statutory duties to be reviewed for

abuse of discretion.” 505 U.S. at 801 (emphasis

added). By offering that APA-specific statement, the

Court in no way suggested it was promulgating a

general principle of construction applicable to all

statutes—let alone insist that any “express statement”

condition governs even those statutes, unlike the APA,

that use comprehensive terms such as “whoever” or

“no person” in order to categorically prohibit

inherently wrongful activity.

Petitioner also relies upon a 1995 Office of Legal

Counsel (OLC) opinion. See Pet. Br. 37–38 (citing

See Memorandum from Office of Legal Counsel, Re:

Application of the Freedom of Information Act to the President,

(Jan.

30,

1973),

6–12

https://www.justice.gov/d9/pages/attachments/2022/09/02/

la_19730130_application_of_the_freedom_of_information_act_to

_the_president_0.pdf; see also id. at 2-6 (explaining that the

legislative history of the APA also cast doubt on the idea that

“agency” includes the President).

Application of 28 US.C. § 458 to Presidential

Appointments of Federal Judges, 19 Op. O.L.C. 350

(1995)). The statute at issue there stated (using the

passive voice) that no person could be “appointed to or

employed in any office or duty in any court who is

related by affinity or consanguinity within the degree

of first cousin to any justice or judge of such court.” 28

U.S.C. § 458 (1995). OLC concluded that the law’s text

and

history

“conclusively

established”

its

inapplicability to presidential appointments of federal

judges. 19 Op. O.L.C. at 351; see also id. at 359–63.

OLC added, however, that a “feature of the

constitutional framework” dictated the same

conclusion, invoking an allegedly “well-settled”

principle “that statutes that do not expressly apply to

the President must be construed as not applying to the

President if such application would involve a possible

conflict

with

the

President’s

constitutional

prerogatives.” Id. at 351.

Even if taken at face value, that OLC statement

does not help Petitioner because, as explained below,

application of the criminal prohibitions here to the

DOJ portions of the indictment would not “involve a

possible conflict with the President’s constitutional

prerogatives.”

Moreover, OLC’s articulated

“principle” of construction was (and is) anything but

“well-settled.”

OLC relied principally upon three of this Court’s

decisions. The first was Franklin, see id. at 351, 352–

353, but, as explained above (at 15-17), Franklin

recognized no such broadly applicable rule. The

second decision was Public Citizen v. U.S. Dep’t of

Justice, 491 U.S. 440 (1989), which did not involve a

question about whether the President was included

within a generally applicable rule. The Court in Public

Citizen instead simply applied the constitutional

avoidance canon to a particular statutory term

(“utilized”), id. at 465–67, in order to confirm a

construction of the Federal Advisory Committee Act

the Court had already reached based upon the Act’s

history, context and purpose, id. at 452–65. In the

third case, Sale v. Haitian Centers Council, 509 U.S.

155 (1993), the Court merely held that statutory text

regulating the Attorney General did not govern a

presidential directive to the Coast Guard, id. at 171–

72, and that the presumption against extraterritorial

application “has special force” when the statute or

treaty in question “may involve foreign and military

affairs for which the President has unique

responsibility,” id. at 188. 10

The 1995 OLC opinion also cited several earlier

DOJ opinions, see 19 Op. O.L.C. at 355–57 & n.10, but

those opinions merely purported to discern actual

congressional intent, 11 to apply the established

constitutional avoidance canon, 12 or to use other

In a footnote, 19 Op. O.L.C. at 355 n.9, OLC also cited

three other cases that are not on point, including, oddly enough,

Nixon v. Fitzgerald itself. In none of those cases did the Court

decide whether the President was subject to a generally

applicable statute, let alone announce a rule of construction to

govern such questions.

E.g., Prosecution for Contempt of Congress of an

Executive Branch Official Who Has Asserted a Claim of

Executive Privilege, 8 Op. O.L.C. 101, 129–34 (1984)

E.g., Memorandum for Richard T. Burress, Office of the

President, from Laurence H. Silberman, Deputy Attorney

General, Re: Conflict of Interest Problems Arising out of the

familiar and relatively uncontroversial modes or

precepts of statutory interpretation. 13

After discussing these Supreme Court and DOJ

opinions, the 1995 OLC opinion “summar[ized]” the

purported principle of statutory construction in this

way: “[A] statute that does not by its express terms

apply to the President may not be applied to the

President if doing so would raise a serious question

under the separation of powers.” 19 Op. O.L.C. at 357

(emphasis added); accord The Constitutional

Separation of Powers Between the President and

Congress, 20 Op. O.L.C. 124, 178 (1996) (“where

applying a statute to the President would pose a

significant question regarding the President’s

constitutional prerogatives”) (emphasis added). That

formulation—which articulates a more demanding

trigger for a “clear statement” requirement than the

President’s Nomination of Nelson A. Rockefeller to be Vice

President under the Twenty-Fifth Amendment to the

Constitution at 5 (Aug. 28, 1974) (using the avoidance canon to

“buttress[]” “considerations of legislative history and statutory

language”); Removal of Members of the Advisory Council on

Historic Preservation, 6 Op. O.L.C. 180, 185 n.7 (1982).

E.g., Judges—Appointment—Age Factor, 3 Op. O.L.C.

388 (1979) (construing the language of the Age Discrimination in

Employment Act not to apply to presidential appointments of

judges); Memorandum for Egil Krogh, Staff Assistant to the

Counsel to the President, from William H. Rehnquist, Assistant

Attorney General, Office of Legal Counsel, Re: Closing of

Government Offices in Memory of Former President Eisenhower,

(Apr.

1969),

https://www.justice.gov/olc/page/file/935966/dl?inline (asserting

that statutes referring to “officers” or “officials” of the United

States “[g]enerally” are construed not to encompass the

President absent a “specific” congressional indication).

“possible conflict with the President’s constitutional

prerogatives” version that appeared earlier in the

opinion—is suggestive of the traditional constitutional

avoidance canon, which, as discussed below, does not

support Petitioner’s proposed presidential exemption

from the statutes in this case.

Significantly, none of the Supreme Court and DOJ

opinions discussed in the 1995 OLC opinion involved

statutes such as those at issue in this case, which

employ broad terms of coverage such as “whoever” or

“any person” to describe the comprehensive scope of a

prohibition on inherently wrongful conduct.

discussed below, applying those sorts of restrictions to

a President’s official acts typically does not raise any

constitutional concerns at all. And, importantly, the

1985 OLC opinion specifically clarified that “[t]he

clear statement principle we have identified does not

apply with respect to a statute that raises no

separation of powers questions were it to be applied to

the President.” 19 Op. O.L.C. at 357 n.11. Thus, even

taken on its own terms, that OLC opinion does not

support Petitioner’s unqualified assertion (Pet. Br. 37)

that Congress “must speak clearly” in order to apply

any statute of general applicability “against the

President or his official acts.” 14

In some (relatively unusual) cases, courts and OLC have

construed a statute to incorporate background principles that

exclude application of the law to particular sorts of governmental

activities. For example, it may be appropriate to construe a

statute to impliedly exclude authorized conduct of public officers

where such an application “would work obvious absurdity as, for

example, the application of a speed law to a policeman pursuing

a criminal or the driver of a fire engine responding to an alarm.”

Moreover, Congress has demonstrated that when

it wishes to exempt the President, or certain

presidentially approved actions, from a broadly

applicable prohibitory statute, it knows how to do so.

See, e.g., 18 U.S.C. § 2511(3) (1968), enacted by Pub.

L. 90-351, § 802, 82 Stat. 197, 214 (1968) (specifying

particular exercises of the President’s constitutional

authorities that would not be subject to two different

sets of statutory limitations and conditions on

wiretapping

and

other

interceptions

communications) ;

U.S.C.

1811

Nardone, 302 U.S. at 384; see also, e.g., Visa Fraud

Investigation, 8 Op. O.L.C. 284, 287 (1984) (statute prohibiting

issuance of visa to someone known to be ineligible did not

prohibit State Department from issuing such a visa where

“necessary” to facilitate important an undercover operation

carried out in a “reasonable” fashion); United States Assistance

to Countries that Shoot Down Civil Aircraft Involved in Drug

Trafficking, 18 Op. O.L.C. 148, 164 (1994) (statute prohibiting

the willful destruction of a civil aircraft, which otherwise applies

to U.S. government conduct, should not be construed to have “the

surprising and almost certainly unintended effect of

criminalizing actions by military personnel that are lawful under

international law and the laws of armed conflict”).

Background principles such as these ordinarily are not

President-specific; instead, they apply to all government actors

whose actions come within the terms of the implied exception.

Petitioner has not cited any such principle that might apply to

the DOJ portions of the indictment here, and amicus is not aware

of any that might be germane in this case.

See United States v. U.S. Dist. Ct. for the E. Dist. of Mich.,

407 U.S. 297, 303–04 (1972) (explaining that the 1968 legislation

“broadly prohibit[ed] the use of electronic surveillance ‘except as

otherwise specifically provided in this chapter,’” and that §

2511(3), in particular, carved out certain exercises of the

President’s constitutional authority that would not be covered).

(“Notwithstanding any other law, the President,

through the Attorney General, may authorize

electronic surveillance without a court order under

this subchapter to acquire foreign intelligence

information for a period not to exceed fifteen calendar

days following a declaration of war by the Congress.”);

5 U.S.C. § 7322(1) (exempting the President and the

Vice President from the term “employee” in the Hatch

Act); 18 U.S.C. § 202(c) (excluding the President, the

Vice President, members of Congress and federal

judges from the terms “officer” and “employee” for

purposes of six specified criminal statutes).

Finally, it is important to appreciate the dramatic

impact Petitioner’s proposed “clear statement” rule

would have with respect to many other federal

statutes that broadly prohibit conduct “intended to

prevent injury and wrong.” Nardone, 302 U.S. at 384.

For starters, the indictment’s DOJ-related

allegations are uncannily reminiscent of President

Nixon’s plot with his Chief of Staff H.R. Haldeman,

captured on the infamous “smoking gun” recording of

June 23, 1973, to implore the CIA Deputy Director to

make false claims to the FBI in order to derail its

In the Foreign Intelligence Surveillance Act of 1978, Pub. L. 95511, 92 Stat. 1783 (1978), Congress repealed that presidentialauthorities proviso, id. § 201(c), 92 Stat. 1797, and replaced it

with a provision stating that the procedures in FISA and related

statutes “shall be the exclusive means by which electronic

surveillance … and the interception of domestic wire and oral

communications may be conducted.” Id. § 201(b), 92 Stat. 1797

(codified as 18 U.S.C. § 2511(2)(f) and 50 U.S.C. § 1809(a)). At

the same time, Congress enacted a different war-specific

presidential exception, id. § 111, 92 Stat. 1796, which is codified

as 50 U.S.C. § 1811, quoted in the text above.

Watergate investigation.

See United States v.

Haldeman, 559 F.2d 31, 54 n.15 (D.C. Cir. 1976). That

scheme was part of the basis for Haldeman’s

conviction under 18 U.S.C. § 371—an offense charged

against Petitioner here, too—for conspiracy to defraud

the United States of its right to have its agencies

transact their business free from corruption, undue

influence or obstruction. See 559 F.2d at 31, 120-21.

Although President Nixon’s involvement in the

conspiracy with Haldeman was likewise unlawful, it,

too, involved acts taken pursuant to the President’s

official authority to direct subordinates’ conduct. If

Petitioner were correct that official-capacity

presidential conduct is exempt from § 371, then Nixon

himself would have been statutorily unconstrained to

direct Haldeman, and the CIA, to defraud the United

States. 16

On Petitioner’s view, 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; or from threatening

witnesses. 17 A President—and only a President—

could poll members of the armed forces about their

Even before the disclosure of the tape of Nixon’s June 23

meeting with Haldeman, the Watergate grand jury had

determined there was probable cause to believe Nixon was a

member of the charged conspiracy to defraud the United States.

See United States v. Nixon, 417 U.S. 960 (1974) (mem.).

See, e.g., 18 U.S.C. §§ 201 (bribery), 1512(b) (threatening

witnesses), 1512(c)(1) (destroying or concealing documents for

proceedings), 1621 (perjury), 1622 (suborning perjury).

confidential electoral votes, notwithstanding 18 U.S.C.

§ 596, and could attempt to intimidate, threaten,

command, or coerce other federal employees to vote (or

not to vote) for particular candidates or to engage in

(or refrain from) other political activities, including

making campaign contributions, notwithstanding 18

U.S.C. § 610. A President also would be unconstrained

by statute from committing war crimes, genocide, or

torture; from stockpiling or selling biological weapons;

from using child soldiers; or from “command[ing]”

others, 18 U.S.C. § 2(a), who concededly are subject to

such laws, to violate them. 18 And the treason statute,

18 U.S.C. § 2381, too, would not apply to a President.

See 18 U.S.C. §§ 175 (biological weapons), 1091

(genocide), 2340 and 2340A (torture), 2441 (war crimes), 2442

(recruitment or use of child soldiers).

OLC’s treatment of the torture statute is particularly

revealing for present purposes. When the Office notoriously

concluded that Congress lacked constitutional authority to

prohibit torture approved by the Commander in Chief, it also

applied the constitutional avoidance canon to conclude that the

statute didn’t cover such cases. See Memorandum for Alberto

Gonzales, Counsel to the President, from Jay S. Bybee, Assistant

Attorney General, Office of Legal Counsel, Re: Standards of

Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A, at

33–35

(Aug.

2002),

https://www.justice.gov/olc/file/886061/dl?inline.

When OLC

withdrew that 2002 opinion later in the George W. Bush

Administration and then reversed its view about Congress’s

constitutional authority, it concluded that the torture statute

“does apply as a general matter to the subject of detention and

interrogation of detainees conducted pursuant to the President’s

Commander in Chief authority.” Memorandum to the Files from

Steven G. Bradbury, Principal Deputy Assistant Attorney

General, Re: Status of Certain OLC Opinions in the Aftermath

All of those statutes, like those charged here, use

general terms such as “whoever” or “any person” to

ensure their comprehensive coverage. Yet none of

them includes a “clear statement” that the President

is in the class of covered persons. That very common

omission cannot be of any legal significance. There is

no imaginable reason Congress would have wished to

exclude the President from the application of such

laws, even—or especially—when the President does so

by misusing his Article II authority to supervise the

executive branch.

B. The canon of constitutional avoidance does

not apply here.

Petitioner alternatively suggests that the Court

should construe the statutes at issue to exempt

application to a President’s official acts in order to

avoid a serious constitutional question. Pet. Br. 38.

The constitutional avoidance canon, however, is

inapposite here for two reasons.

First, that canon “has no application in the

absence of statutory ambiguity,” United States v.

Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494

(2001), and there is nothing ambiguous about whether

the textual terms of the statutes here (e.g., “whoever”;

of the Terrorist Attacks of September 11, 2001, at 3 (Jan. 15,

2009),

https://www.justice.gov/sites/default/files/opa/legacy/2009/03/09/

memostatusolcopinions01152009.pdf (quoting from Bradbury’s

earlier Reponses to Questions from the Record in 2005). OLC did

not suggest that Congress’s failure to include a clear statement

referring to the chief executive meant that the statute excludes

the President from its coverage.

“persons”) apply to the President just as they apply to

other U.S. Government actors. Indeed, Petitioner

concedes that they apply to the President’s personalcapacity conduct and he does not contest that they

apply to other officers’ abuse of office; his argument is

that the Court should somehow construe the statutes

to exclude application only to the President’s official

conduct. But “there is no plausible construction of the

text” that could bear such a reading. Johnson v.

Arteaga-Martinez, 596 U.S. 573, 581 (2022).

Second, even if the statutes were susceptible to a

reading that excluded official presidential conduct, it

is appropriate to apply the avoidance canon only to

avoid a construction that “would raise serious

constitutional problems.” Edward J. DeBartolo Corp.

v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485

U.S. 568, 575 (1988). The ordinary application of these

statutes to prohibit a President’s abuse of office by

committing the sorts of malum in se offenses that they

describe, however, does not raise any serious

constitutional problems. Indeed, even if there were no

such statutes, the President lacks constitutional

authority to conspire to defraud the United States, to

“corruptly” obstruct, influence, or impede official

proceedings, or to conspire to violate constitutional

rights—let alone to do so by trying to direct other

Government officials to unlawfully exercise their own

authorities. See Art. II, § 3 (“[the President] shall take

Care that the Laws be faithfully executed”).

III.

The charged statutory offenses do not

raise any significant constitutional

questions as applied to the officialcapacity allegations here.

Finally, Petitioner suggests that application of

some or all of the charged statutes might “be deeply

constitutionally questionable” as applied to a

President’s official actions that “fall[] squarely within

his [constitutional] duties.” Pet. Br. 39-40. He invokes

the prospect of prosecutions based upon the

President’s “selection of Cabinet-level officers,”

“direction of the Department of Justice,” or “public

statements by a President on matters of enormous

public concern.” Id. at 40.

The indictment’s allegations of official-capacity

conduct in this case, however, do not raise any

questions about whether and under what

circumstances the statutes could be construed, and

constitutionally applied, to penalize a legitimate

exercise of a President’s constitutional functions. Nor

do those allegations tee up any questions of whether

there are some presidential functions (e.g., the power

to veto and sign legislation; the pardon power; the

power to appoint principal officers subject to the

Senate’s advice and consent) that Congress may not

constrain at all, even in circumstances where a

President

exercises

such

authorities

unconstitutionally (such as in exchange for a bribe; in

a manner designed to violate limitations found in, e.g.,

the First Amendment or Article VI’s Religious Test

Clause; or in order to undermine the executive

branch’s faithful execution of the law). 19

The

indictment’s allegations of official-capacity conduct do

not raise any such issues—nor do they even implicate

prosecution on the basis of ordinary presidential

“advocacy to Congress” or “public statements by a

President” in his official capacity “on matters of

enormous public concern.” Pet. Br. 40.

Petitioner is correct, however, that the indictment

does allege, at least in small part, violations of the

statutes based upon “his direction of the Department

of Justice.” Pet. Br. 40. Indeed, as explained supra

at 4-5, those are the only parts of the indictment that

plainly implicate any question of official presidential

conduct. But a prosecution based upon Petitioner’s

attempted “direction” of the top DOJ officials does not

come anywhere close to a situation that implicates a

serious constitutional question, for two reasons.

First, the discrete, relevant portions of the

indictment allege an effort by Petitioner to induce DOJ

officials to announce allegations of election fraud that

The Court has stated in unqualified dicta, for example,

that the power to veto legislation “cannot be narrowed or cut

down by Congress,” The Pocket Veto Case, 279 U.S. 655, 677-78

(1929), and that the pardon power “is not subject to legislation,”

United States v. Klein, 80 U.S. (13 Wall.) 128, 141 (1872).

Amicus respectfully suggests that the Court should not address

such novel and difficult questions unless and until they are

presented in the context of a concrete application of a statute to

prosecute a former President for, e.g., vetoing or signing

legislation, issuing a pardon, or appointing or removing a

principal officer—something DOJ is unlikely to even

contemplate absent truly extraordinary, unforeseeable

circumstances.

those officials repeatedly informed the President were

groundless. See, e.g., J.A. 189 Indictment ¶ 11-b).

There is no dispute that had those officials complied

with the President’s directive, they would have acted

unlawfully and abused their own authority. The

Constitution does not empower the President to direct

other executive branch officials to knowingly violate

the law in that way. See Kendall v. United States ex

rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838); see also

United States v. Smith, 27 F. Cas. 1192, 1230 (No.

16,342) (C.C.D.N.Y. 1806) (Patterson, J., presiding)

(“The president of the United States cannot control the

statute, nor dispense with its execution, and still less

can he authorize a person to do what the law forbids.”).

Second, the alleged objective of the former

President’s attempt to exploit DOJ was something

that would itself have been unlawful—namely, the

counting of illegitimate electoral votes and the false

certification of Petitioner as President-elect. (This

indictment therefore is unlike a hypothetical case in

which the Government prosecutes a former President

for making factually dubious factual claims in an

effort to persuade other Government actors to make

what would otherwise have been a perfectly legitimate

policy choice—an unlikely scenario that might raise

constitutional questions not present here.) If the

allegations in the indictment are true, Petitioner and

his co-conspirators endeavored to have other

Government actors (i.e., the President of the Senate

and the two Houses of Congress sitting in Joint

Session on January 6, 2021) formally determine that

Petitioner himself had received more than 269

electoral votes and to declare that Petitioner therefore

“shall be the President,” Amend. XII, even though

Petitioner knew such a declaration would be improper

and unlawful. See, e.g., J.A. 187, 188, 190 (Indictment

¶¶ 10-d, 11, 12).

At least where, as here, the allegations of officialcapacity misconduct partake of both of these

characteristics, there is nothing constitutionally

problematic about efforts to enforce the charged

statutes, once the President leaves office, to punish

and deter such an abuse of the President’s authority.

In the unlikely event DOJ were ever to employ these

statutes in a manner that raises a more serious asapplied constitutional question, this Court can at that

point apply a “particularly meticulous” review, as it

did in Nixon, 418 U.S. at 702, to ensure that the

prosecution does not transgress any potential

constitutional limits. But “there is no serious doubt

about the constitutionality of [the statutes] as applied

to the facts of this case.” Salinas v. United States, 522

U.S. 52, 60 (1997).

Conclusion

The Court should affirm the judgment of the court

of appeals.

Respectfully submitted,