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In this special edition of Law Talk with Epstein & Yoo, Richard Epstein and John Yoo are joined by National Review’s Charles C.W. Cooke to discuss the Supreme Court’s decisions concerning Donald Trump’s claim of presidential immunity in Trump v. United States, as well as Loper Bright Enterprises v. Raimondo, and its companion case, Relentless, Inc. v. Department of Commerce, aka the Chevron case established in 1984.
Discussion (3)
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This is one of Richard's finest hours. He enunciates here a deep wisdom on human governance that completely eclipses the rather limited understanding of John Yoo and Charles C. W. Cooke. He recognizes a larger context for the Constitution that Yoo and Cooke do not understand, and to which they seem to object rather strenuously.
in my view, Richard validates a career characterized by an intense effort to understand law, justice, and human governance, and has achieved a remarkable, indeed profound, even transcendent, coherent and holistic understanding. He also seems to me to suggest a capacity of human individuals to grasp the underlying premise of his statements (I don't know if Richard is a religious man, but here his view, to me, reflects in its scope, the entire Judeo-Christian tradition of Western civilization). Personally, I am in awe.
In thinking about his view, I would proffer a definitive statement about Presidential immunity.
It seems to me that implicit in the Constitution's silence on Presidential Immunity is the idea that the President enjoys an absolute immunity for any and all activities related to his office and the politics of getting there and staying there. Or returning there, as in Trump's case. Let the voters decide. Not the judicial system.
The Constitution is silent on Presidential immunity except regarding Impeachment. That says to me that Impeachment is the only Constitutional approach to holding a President accountable. There must be a consensus in the House to bring arcticles of Impeachment, and a very high level of concordance in the Senate, to convict and remove the President from office. And the only crimes for which the President can be prosecuted, in or out of office, are those crimes for which he has been impeached. Such is the nature of the Presidency.
That would be my rule on Presidential criminal immunity.
On civil immunity, Richard's position is the most salient, the most reasonable, the most effective, and absolutely should be the accepted normal going forward. Only his rule can prevent harassment of the body politic by individual or special interests.
Criminal activity (murder, etc.) that has nothing to do with a candidate's or president's political activities, that occurs completely outside of any time frame in which an individual is a viable candidate for the Presidency, or serving as President, or acting in any capacity whatsoever as a former President (handling classified documents, for example), may be prosecuted by the given State in which the crime was committed, or by federal authorities (such crimes as sex trafficking across State lines, bank fraud or securities fraud as in the case of Sam Bankman Fried or Bernie Madoff, or the officers of Enron).
Such an approach would have prevented any charges against Hilary Clinton during the 2020 campaign. Comey of course had no authority to do what he did anyway. Joe Biden's threats to withhold aid to Ukraine unless Ukraine fired a prosector would not fall under this approach, except to the extent that it should not be pursued while he was campaigning for President, or acting as President. He could be Impeached on the basis of that criminal acitivity, but the current Senate of a certainty would not convict, so impeachment should not be brought. Once Joe is out of office, he could be prosecuted for that crime, and many others regarding bribes and influence peddling. Hillary, had she been elected. or not elected, when out of office and not running, could potentially be investigated and prosecuted for crimes related to her service as Secretary of State, when she was engaged in massive influence peddling by accepting donations to the Clinton Foundation by foreign governments and officials, and many others, and for such crimes as signing off on the sale of US Uranium resources to Putin (Rosatom) for donations to the Foundation. Biden's and Clinton's actions were taken at a time when they were not, nor were the running for, the Presidency.
Which would make all of the cases against Trump in this election cycle either completely moot, or postponed until he loses the election or is out of office. Of course, if Trump were to be again elected, he could be impeached, and if convicted and removed from office, prosecuted for the crimes for which he was impeached. With the failure of multiple attempts at impeachment, I would argue that no articles of impeachment should be brought by the House unless there is a very strong agreement in the Senate that the articles be brought, to spare the nation the repeated attempts at Impeachment that have not succeeded. The politicians would be well advised, in my view, to keep such an approach in mind, regardless of the clamor in the electorate, or part of the electorate, for Impeachment articles to be brought.
If nothing else, such an approach might encourage the electorate, and the Parties, to think more carefully about selecting the nominees for the Presidency, considering competence and character rather than stridency of partisanship. But that may be a vain hope, indeed.
If the Presidency is the first refuge of criminals, we will have ourselves to blame.
Opposing views very welcome.
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I forget where I heard this. A guy that had read all of the Federalist Paper you-know-what, said that they pretty much should not do an impeachment unless they pretty much know that the Senate is going to convict. Don't use it as a political weapon, in other words.
For example. Bill Clinton lied under oath as a bar card holder, and the head of the DOJ. He obviously should have gotten impeached, but the public didn't get it, VERY unfortunately.
All of the Trump impeachments were massively stupid.
Who knows where it all ends. We are ruled by disgusting people.
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None needed. Absolute perfection.