The special counsel made a dangerous argument about Trump immunity
The Supreme Court pitch would make the presidency answerable to the Justice Department. Need criminal immunity? Just ask your attorney general in advance.
James Burnham, an attorney, is a former Justice Department and White House official and clerk to Justice Neil M. Gorsuch.
One aspect of special counsel Jack Smith’s arguments to the Supreme Court last week in Trump v. United States has not gotten enough attention: his claim that the Justice Department has independent power to confer immunity on the president. Adopting this argument would be a disaster for the presidency.
Smith was represented at the Supreme Court by Michael R. Dreeben, who served as a deputy solicitor general in the Justice Department for 24 years. In that role, Dreeben had primary responsibility for overseeing the department’s criminal docket before the Supreme Court. Dreeben thus spent nearly a quarter-century as the top advocate at the Supreme Court for federal prosecutorial interests.
Perhaps influenced by that experience, Dreeben last week advanced a view of the presidency that in effect makes the president answerable to the Justice Department. He claimed that although presidents lack absolute immunity from criminal prosecution, they can obtain it by checking with the attorney general before doing anything that could be illegal.
Justice Samuel A. Alito Jr. asked Dreeben, “If the president gets advice from the attorney general that something is lawful, is that an absolute defense?” Dreeben said yes, under the principle of “entrapment by estoppel.” In Dreeben’s words, if “an authorized government representative” (the attorney general) “tells you” (the president) “that what you are about to do is lawful, it would be a root violation of due process to prosecute you for that.”
In other words, should the president do as the attorney general directs, the president gets to retire in peace. But if the president defies the attorney general, the president then risks future Jack Smiths stalking him or her through the years.
That’s an extraordinary claim. The Constitution did not create the Justice Department. It vested in the president the power to ensure that laws are “faithfully executed,” which includes all law enforcement functions. Congress created the Justice Department after the Civil War to help enforce the postwar civil rights laws in the South.
Then and now, the Justice Department has been fully accountable to the president. It wields power delegated from him as chief executive. That’s why the president always has the authority to overrule his attorney general.
Excellent lawyers work in the White House as well as the Justice Department, and the president is entitled to favor the advice of his White House counsel if he chooses. Presidents have done so throughout history, such as when President Barack Obama sided with his White House counsel over the Justice Department concerning his authority to engage in hostilities in Libya. In Dreeben’s view, did Obama’s rejection of the department’s legal view that he lacked authority to continue U.S. military participation in Libya without congressional authorization make him more vulnerable to future prosecution for those actions?
Of course not. The “estoppel” rule Dreeben invoked arises when the Justice Department gives legal advice to a private party or a government official working outside the department. When Justice lawyers advise corporations or officials elsewhere in the government that a course of conduct is legal, future lawyers in the department cannot prosecute those who relied on that advice.
In those circumstances, the department provides the executive branch’s official position on legal questions and thereby constrains the executive branch’s future range of action. But it does so as the president’s designee. The attorney general serves as an “authorized government representative” because the president selected him for that role. The president can always rescind that authorization, invest it in someone else or claim it for himself.
Because the attorney general wields delegated presidential power, it makes no sense for the attorney general to have independent authority to immunize the president. If that were so, then the president could simply immunize himself by judging his own actions lawful.
And consider how Dreeben’s rule would operate in practice. If the Justice Department could confer immunity by blessing a proposed act, it could equally withhold immunity. This would give future attorneys general a partial veto over the presidents they serve.
Future Justice Departments would inevitably exploit this immunity-conferral power to advance the department’s priorities at the expense of the president’s and to further untether the department’s substantial powers from presidential supervision. Alternatively, as Alito suggested in his response to Dreeben, presidents might react by choosing compliant stooges to head the Justice Department and thereby replicate the same absolute immunity that Dreeben decries today.
In any normal case, a proposal that could reshape the presidency like this would require careful review throughout the executive branch — including by the Office of Legal Counsel, the attorney general, the White House counsel and probably the president — before being presented to the Supreme Court.
But special counsels, jealous of their independence, are freed from the normal rules that govern executive branch lawyers. The only official outside the special counsel’s office that Dreeben said he consulted is the solicitor general — a litigator with no official policymaking role.
Dreeben’s argument that attorneys general can immunize presidents appears to have been designed to persuade the justices to rule against immunity here by showing how future presidents could easily obtain its equivalent by consulting the Justice Department. It was an argument designed to win this case, not to safeguard the constitutional order.
Count this constitutional misfire as another strike against special counsels, who are too quick to elevate their own narrow prosecutorial interests above those of the executive branch they serve.