Jack Goldsmith is the Learned Hand Professor of Law at Harvard University.
By Annie Hagstrom
Michigan Law
With a contentious presidential election less than two months away, Michigan Law hosted Jack Goldsmith, an expert on presidential power, for U-M’s annual commemoration of Constitution Day on September 17.
For more than 30 years, Goldsmith, the Learned Hand Professor of Law at Harvard University, has studied the intricacies of US presidential power. A former assistant attorney general in the Office of Legal Counsel at the Department of Justice (DOJ), he has authored a number of books and articles on the subject, as well as on terrorism, national security, international law, and internet law. Goldsmith is a nonresident senior fellow at the American Enterprise Institute and a co-founder of Lawfare.
In his lecture, Goldsmith analyzed the impact of the US Supreme Court ruling in Trump v. United States. The ruling grants broad immunity from prosecution for a former president’s conduct in office related to their core powers as well as at least presumptive immunity for any other official acts—but unofficial acts enjoy no immunity. Goldsmith challenged the idea that the ruling would, as some critics worry, “open the floodgates to a lawless presidency.” But he maintained that the decision could have a big impact on the presidency in other ways.
Below are four takeaways from Goldsmith’s lecture:
—————
1. Subordinate liability is important
The main reason the impact of the decision will be limited, Goldsmith argued, is that executive branch officials serving under the president do not benefit from presidential immunity.
“If the president wants to break the law, the president must rely on executive branch subordinates, who are not immune from criminal liability, even if the president is immune,” he said. “The principle of subordinate criminal liability combined with executive branch norms of moral behavior are the main determinants of executive branch compliance with the law.”
To illustrate how subordinate accountability has in the past maintained adherence to the law by the executive branch, Goldsmith recounted instances from the Mueller investigation on Russian collusion, where former President Trump sought to obstruct justice but his subordinates, fearful of criminal liability, refused to carry out his wishes.
—————
2. Effective immunity for a corrupt president was possible long before this ruling
Goldsmith argued that subordinate liability could always be skirted by a truly corrupt president, independent of the immunity ruling.
The president’s pardon power is very broad, and legal opinions from the Justice Department can create a “golden shield” of protection for a president, Goldsmith argued. In reality, corrupt presidents have always had the power to effectuate substantial immunity long before Trump v. United States.
One lesson Goldsmith drew was that if the American people elect a truly corrupt president and if they do not, through political institutions, pressure presidents to adhere to law and norms, there is not much that the Constitution can do to prevent presidential or executive branch illegality.
“The laws and norms that govern the presidency work only if a wide swath of the population and their elected representatives believes in them, and their legitimacy, and wants them to work,” he argued.
—————
3. The ruling was not as broad as advertised
Goldsmith emphasized that even on its own terms, it is unclear whether the Trump v. United States ruling on immunity would have a large impact.
He pointed out that Special Counsel Jack Smith only slightly revised his indictment after the Supreme Court decision, and is not obviously wrong that most of the charges against Trump will be unaffected by decision.
—————
4. The ruling may have long-term implications for exclusive presidential powers
As a prelude to the immunity analysis in Trump v. United States, Chief Justice Roberts outlined a very broad conception of what he calls “exclusive presidential powers,” which are categories of constitutional law under which the president can exercise certain powers that neither Congress nor the court can interfere with.
Goldsmith argued that this part of the decision, and not the immunity ruling, would have a big impact with everyday executive branch skirmishes with Congress.
“Trump v. United States is a gift to executive branch lawyers who defend and seek to extend executive branch prerogatives,” said Goldsmith.
Michigan Law
With a contentious presidential election less than two months away, Michigan Law hosted Jack Goldsmith, an expert on presidential power, for U-M’s annual commemoration of Constitution Day on September 17.
For more than 30 years, Goldsmith, the Learned Hand Professor of Law at Harvard University, has studied the intricacies of US presidential power. A former assistant attorney general in the Office of Legal Counsel at the Department of Justice (DOJ), he has authored a number of books and articles on the subject, as well as on terrorism, national security, international law, and internet law. Goldsmith is a nonresident senior fellow at the American Enterprise Institute and a co-founder of Lawfare.
In his lecture, Goldsmith analyzed the impact of the US Supreme Court ruling in Trump v. United States. The ruling grants broad immunity from prosecution for a former president’s conduct in office related to their core powers as well as at least presumptive immunity for any other official acts—but unofficial acts enjoy no immunity. Goldsmith challenged the idea that the ruling would, as some critics worry, “open the floodgates to a lawless presidency.” But he maintained that the decision could have a big impact on the presidency in other ways.
Below are four takeaways from Goldsmith’s lecture:
—————
1. Subordinate liability is important
The main reason the impact of the decision will be limited, Goldsmith argued, is that executive branch officials serving under the president do not benefit from presidential immunity.
“If the president wants to break the law, the president must rely on executive branch subordinates, who are not immune from criminal liability, even if the president is immune,” he said. “The principle of subordinate criminal liability combined with executive branch norms of moral behavior are the main determinants of executive branch compliance with the law.”
To illustrate how subordinate accountability has in the past maintained adherence to the law by the executive branch, Goldsmith recounted instances from the Mueller investigation on Russian collusion, where former President Trump sought to obstruct justice but his subordinates, fearful of criminal liability, refused to carry out his wishes.
—————
2. Effective immunity for a corrupt president was possible long before this ruling
Goldsmith argued that subordinate liability could always be skirted by a truly corrupt president, independent of the immunity ruling.
The president’s pardon power is very broad, and legal opinions from the Justice Department can create a “golden shield” of protection for a president, Goldsmith argued. In reality, corrupt presidents have always had the power to effectuate substantial immunity long before Trump v. United States.
One lesson Goldsmith drew was that if the American people elect a truly corrupt president and if they do not, through political institutions, pressure presidents to adhere to law and norms, there is not much that the Constitution can do to prevent presidential or executive branch illegality.
“The laws and norms that govern the presidency work only if a wide swath of the population and their elected representatives believes in them, and their legitimacy, and wants them to work,” he argued.
—————
3. The ruling was not as broad as advertised
Goldsmith emphasized that even on its own terms, it is unclear whether the Trump v. United States ruling on immunity would have a large impact.
He pointed out that Special Counsel Jack Smith only slightly revised his indictment after the Supreme Court decision, and is not obviously wrong that most of the charges against Trump will be unaffected by decision.
—————
4. The ruling may have long-term implications for exclusive presidential powers
As a prelude to the immunity analysis in Trump v. United States, Chief Justice Roberts outlined a very broad conception of what he calls “exclusive presidential powers,” which are categories of constitutional law under which the president can exercise certain powers that neither Congress nor the court can interfere with.
Goldsmith argued that this part of the decision, and not the immunity ruling, would have a big impact with everyday executive branch skirmishes with Congress.
“Trump v. United States is a gift to executive branch lawyers who defend and seek to extend executive branch prerogatives,” said Goldsmith.
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