In a previous post I noted that a group of law professors has released a public letter to the President’s counsel arguing that the President’s exercise of executive powers is limited by a duty of good faith and a responsibility not to act for private gain. The previous post remarked on the fact that the letter is almost entirely originalist in methodology (even though many of its signers are not originalists and indeed some are strong critics of originalism).
This post addresses the letter’s substance. Again, here is the letter’s core claim:
First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations. Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.
As an original matter, I agree almost entirely with the conclusion and reasoning of the letter’s first point. The combination of the take care clause and the presidential oath, understood in the political and legal context in which they were written, establish a constitutional rule against the President using the office for private gain contrary to the public interest. (There are some good originalist sources that could be cited here, including this article by Robert Natelson and this book by Gary Lawson and Guy Seidman).
I nonetheless have two reservations about the letter. The first is that it doesn’t say anything about the remedy for presidential misconduct. It seems clear to me that the constitutionally provided remedy is impeachment. Presidential misconduct of this sort would be a “misdemeanor” in the original sense of that word in the impeachment clause: a malfeasance in office. The inherently subjective nature of such supposed misconduct makes it particularly appropriate for a political remedy. A President will usually be able to argue that the challenged action was actually taken in the President’s perception of the public interest, not for private gain. Assessment of the President’s state of mind in this situation is likely to be extremely difficult. I think this idea in part underlies Chief Justice Marshall’s observation in Marbury that matters of executive discretion are political questions not matters for courts. This observation did not mean that Presidents aren’t answerable for abuses of discretion; it meant that they are answerable through impeachment.
This leads to my second problem with the latter: its second claim. After making the constitutional point, the letter further argues: “Whatever a President may have been able to do in the absence of such statutes, Congress’s judgm