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 judgment that obstruction of justice is prohibited binds the President.”  I think this is not correct.  First, assume (contrary to my view) that the Constitution does not impose a duty on the President to act in good faith.  Can Congress impose that duty?  To do so would take away a power vested in the President by the Constitution.  Suppose, for example, that Article II vests the President with an unlimited power to grant pardons.  Could Congress limit that power by saying the President could only grant a pardon upon an express finding that it served the public interest?  I think not, because then the President would not have the full power vested by the Constitution.

The letter points to Hamdan v. Rumsfeld as an example in which Congress limited the President’s express constitutional power (in that case, the commander-in-chief power).  But Hamdan isn’t decisive here because in that case Congress had its own express power (to make rules for the government and regulation of the military) that limits the commander-in-chief power.  In the pardon example, Congress must rely on its necessary and proper powers, and depriving the President of a constitutionally vested power isn’t a “proper” use of congressional power.

But even if the President has a constitutional duty to act in good faith (as I believe), I think Congress imposing a statutory obligation of good faith through criminal law (at least on a sitting President) is problematic.  Suppose Congress makes it a crime for the President to use the pardon power in bad faith.  This changes the remedy for abuse of executive discretion, creating a judicial remedy rather than (or at least in addition to) a political remedy.  As discussed above, I think the Constitution establishes impeachment as the remedy.  At minimum, I would not read the obstruction of justice statute to make this structural change without more clarity from Congress.

(To be clear, I am only considering here matters of executive discretion such as removals or pardons; Congress can, for example, criminalize actions such as taking bribes or witness tampering by Presidents because these actions are not part of the exercise of executive power).

In any event, I think there’s less here than the letter implies.  As noted, a President will almost always be able to argue a good faith belief that an action serves the public good.  At most, the requirement is not that the President’s action actually serve the public good, only that the President believes that it does.  And the fact that an action happens also to boost the President’s private interest proves little, as people commonly and in good faith suppose that actions incidentally benefiting them are also the best public policy.  In fact, there’s a risk that the letter sets the test for impeachment too high, by implying that the President must be found to have acted in bad faith.  I’m not sure that’s correct.  Perhaps Congress can impeach a President for actions that are taken in good faith but are profoundly mistaken.  But that’s a subject for another post.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey is Professor of Law and Director of International and Comparative Law Programs at the University of San Diego School of Law, where he teaches and writes in the areas of Constitutional Law, Foreign Relations Law and International Law. He is the author of THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS (Harvard University Press 2007), the co-editor of INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUITY AND CHANGE (Cambridge University Press 2011), and author or co-author of numerous articles on foreign relations law in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law.

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Small things grow great by concord...

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