Rich Bernstein: “Protecting Elections Under U.S. v. Trump”
Richard Bernstein is a Charter Member of the Society for the Rule of Law Institute. He is a former partner at Willkie Farr & Gallagher and a former partner at Sidley Austin. He clerked for Justice Antonin Scalia from 1987 – 88 and Judge Amalya Kearse from 1986 – 87.
A proverb says it is better to light a candle than to curse the darkness. Well, I wrote a prior article, as many did, harshly criticizing Trump v. United States, 144 S. Ct. 2312 (2024), for its judicial invention of presidential immunities from prosecution when a President’s official act constitutes a federal crime.
In contrast, this new article hopes to light a candle by showing that presidential acts—even official ones—that attempt to direct the manner of, administer, or determine the results of elections should not receive federal criminal immunity because they fit within the rebuttal subgroup discussed in Trump v. United States. This is because Article II and federal statutes plainly provide no role for the President in directing the manner of, administering, or determining the results of federal elections. Recognizing that a President’s presumptive Article II federal criminal immunity is rebutted in circumstances where a President plainly has no Article II or statutory powers is critical to protecting future elections and therefore government by the people.
The Rebuttal Subgroup in Criminal Cases
The Court’s opinion left open for lower courts to rule that in a federal criminal case, some subgroup of a President’s official acts have only rebuttable presumptive immunity rather than irrebuttable absolute immunity. In a civil case, all of a President’s official acts receive absolute immunity, without possibility of rebuttal. In a federal criminal case, the Court created absolute immunity only for official acts within the President’s “conclusive and preclusive constitutional authority.” 144 S. Ct. at 2328 (cleaned up). Let’s call these Category 1 official acts. The Court stated: “[O]f course not all of the President’s official acts fall within his ‘conclusive and preclusive’ authority.” Id. Let’s call these other official acts Category 2 official acts.
As to Category 2 official acts, a rebuttal subgroup was explicitly supported by Justice Barrett’s concurrence, id. at 2352, and follows logically from the majority opinion’s reasoning. To start, the majority stated: “The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress.” Id. at 2328 (emphasis added). The majority opinion also recognized that there were “distinct interests present in criminal prosecutions” that were absent in civil cases. Id. at 2331. “Taking into account these competing considerations,” id.–as the Court said was proper in federal criminal cases–can be accomplished only if Category 2 official acts receive rebuttable immunity rather than absolute immunity. If there were absolute immunity in criminal cases for Category 2 official acts, as there is in civil cases, then the “distinct interests present in criminal prosecutions” would count for nothing, contrary to the Court’s statement that these distinct interests should be “[t]ak[en] into account.”
The Court said rebuttal would require the government to show that prosecuting particular official conduct “would pose no dangers of intrusion on the authority and functions of the Executive Branch,” id. at 2331-32 (cleaned up), considering “the circumstances” of the particular case. Id. 2337. Accord id. at 2353 (Barrett, J., concurring)(rebuttal criteria are applied “in the circumstances” of the particular case). That is, as Justice Barrett said, a Category 2 official act comes within the rebuttal subgroup when “applying [the federal criminal statute] to the particular facts is constitutional.” Id. (emphasis added).
The Court’s own opinion shows that the Category 2 official acts within the rebuttal subgroup are not a null set. Although the Court ruled that former President Trump’s discussions with former Vice President Pence about the Jan. 6, 2021, proceeding certifying the election results were “official conduct,” the Court nonetheless “remand[ed] to the District Court in the first instance to assess” whether prosecuting that particular official conduct “under the circumstances” of the particular case poses “no dangers of intrusion on the authority and functions of the Executive Branch.” Id. at 2336-37.
Applying The Rebuttal Subgroup Criteria
Justice Barrett’s concurrence applied the rebuttal subgroup criteria to Mr. Trump’s attempts to get state legislatures to overturn the results certified by state election officials and courts. Justice Barrett indicated that “the scope of Article II power” sometimes renders straightforward the application of the rebuttal subgroup criteria. Id. at 2353. Justice Barrett stated: “The President has no [Article II] authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with [a State’s] House Speaker would unconstitutionally intrude on executive power.” Id. Justice Barrett’s approach makes sense. Presidents do some things—often very good—outside the scope of their Article II and statutory powers. But in the rare circumstances when a President commits a crime while acting outside the settled scope of the President’s Article II and statutory powers, that President should not be clothed with a federal criminal immunity derived from Article II.
This principle applies to the other allegations against Mr. Trump in the Indictment, besides those involving alleged conduct involving Mr. Trump’s exercise of his Article II powers over Justice Department officials. As Justice Barrett stated, Article II clearly gives the President no role in the appointment by each State of its electors. Id. at 2353 n.2. So Mr. Trump has no immunity for organizing alternative slates of electors. Id. The same holds for the communications of Mr. Trump and his alleged co-conspirators with state legislators or state election officials, like Georgia Secretary of State Brad Raffensperger. Prosecuting alleged federal crimes committed by Mr. Trump in dealing with state officials about who would be awarded that state’s electors does not unconstitutionally intrude on any Article II executive power of a President.
Likewise, unlike prospective legislation and appointments, Article II conspicuously gives the President no role in the certification of presidential election results by Congress, as presided over by the Vice President in his non-Executive Branch role as President of the Senate. Nor does the Twelfth Amendment or any federal statute. So prosecuting Mr. Trump for alleged federal crimes committed by him and his alleged co-conspirators in dealing with Vice President Pence and members of Congress about that certification proceeding does not intrude on any Article II executive power or statutory power of the President. So too for former President Trump’s communications with political supporters concerning that certification proceeding.
The Remand Should Address The Rebuttal Subgroup
To be sure, as others have shown, an alternative basis for sustaining the Indictment’s remaining allegations against Mr. Trump is that they rest on unofficial conduct. See Richard Lazarus, “Never mind the immunity ruling. Trump can be prosecuted for Jan. 6,” Washington Post, Aug. 15, 2024. Indeed, that the scope of Article II executive power does not extend to determining presidential election results provides one reason why Mr. Trump’s remaining conduct at issue was unofficial. In the proceedings on remand, however, the Special Counsel, Judge Chutkan, and the D.C. Circuit should address both the unofficial conduct and the rebuttal subgroup bases for denying immunity. The Supreme Court made clear that on remand, the courts should address all the issues related to immunity in this case. Judicially efficiency also supports this. Suppose, for example, the lower courts denied immunity for President Trump’s communications with a member of Congress about certifying presidential election results solely on the basis that such communications were unofficial conduct. If the Supreme Court disagreed, we might well get another remand to address the rebuttal subgroup issue.
More important, as the Supreme Court emphasized, the immunity issues in this case will affect the future course of our nation’s history well after this case. Presidents, Congress, and voters deserve to know if the rebuttal subgroup for Category 2 official acts will be meaningful or a mirage. Presidents should have notice of the kinds of circumstances under which their official conduct may be subject to federal criminal restraints. And members of Congress and the voters they represent should have similar guidance so they can evaluate whether to amend existing criminal laws, enact new ones, or potentially even amend the Constitution.
Consider, for example, a future President who contemplated ordering the military to seize voting machines and prevent mail-in ballots from being sent to voters such that a federal election for Congress or President would be delayed. In our polarized nation, this hypothetical unfortunately is not far-fetched. In June 2020, then-President Trump tweeted about the possibility of delaying the 2020 election. And in December 2020, an executive order was drafted, but not issued, under which the military would have seized voting machines and records. Every President should understand that an attempt to employ the military to delay an election would be an unimmunized violation of the criminal prohibition in 18 U.S.C. sections 593 and 2 against directing military interference in elections. Article II executive power plainly does not include a President’s using the military to delay the date of a federal election when Congress has not authorized that act. This is because Article I, Section 4 expressly gives the States and ultimately Congress the exclusive power to set the date for congressional elections and Article II, Section 4 gives Congress the exclusive power to set the date for presidential elections. Congress by statute has set the date for federal elections without creating any power of any President unilaterally to move that date. As this delay-an-election hypothetical illustrates, the nation needs a rebuttal subgroup under Trump v. United States that is robust enough to deter a future President from committing a crime via an official act that is outside the scope of a President’s Article II and statutory powers and threatens our elections. The future of government by the people deserves no less.