AuthorCaminker, Evan

Four decades ago in Democracy and Distrust, (2) John Hart Ely masterfully charted a middle path between the two then (and still) dominant methods of constitutional interpretation. The prevailing version of originalism ("interpretivism"), he eloquently expounded, was intrinsically unworkable and unattractive for why-be-bound-by-the-dead-hand-of-the-past reasons; the alternative of norm-based reasoning ("noninterpretivism") was ungrounded and riven with judicial subjectivity; and neither method was "ultimately reconcilable with the underlying democratic assumptions of our system." (3) Ely posited and passionately defended a third approach, "process-based constitutionalism," favoring a "participation-oriented, representation-reinforcing approach to judicial review" that would "ensur[e] broad participation in the processes and distributions of government." (4) When interpreting "open-ended provisions," courts should largely confine themselves to promoting the related process values of fair participation in the selection of government officials and fair representation of all by those officials. Although Ely's attempt was not entirely persuasive on its own terms (5) and the interpretive schools he rebuked dug in their heels rather than capitulate, (6) his was one of the most influential writings on judicial review of his generation and, I dare say, still in ours.

Somewhat ironically for a book focused on promoting fair governance process values, Ely said very little about structural battles among the governmental pillars of our federalist system. (7) Indeed, the book barely even mentions the President. Given that over the last forty years both formal and informal presidential power has significantly expanded and generated many constitutional controversies, this lacuna does reveal the book's age.

That said, Ely specifically invited broader and different applications of his core thesis: "[t]he elaboration of a representation-reinforcing theory of judicial review could go many ways, and [my proposals] are obviously just one version.'' (8) I accept that invitation here and try to extend his core insights into one such important and topical structural issue: whether and to what extent the President of the United States enjoys temporary or permanent immunity from various enforcement efforts to conform her conduct to law.

The Supreme Court most recently addressed this thicket last year in Trump v. Vance," (9) building on previous decisions that subjected sitting Presidents to evidentiary subpoenas in federal criminal cases (10) and federal civil litigation over unofficial conduct (11) but provided sitting and former Presidents immunity from civil damages claims for official misconduct. (12) In Vance, the Court (over two dissents) rejected President Trump's sweeping claim of temporary immunity from a state grand jury's subpoena issued to an accounting firm seeking his personal financial and tax records. President Trump asserted "the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance... would categorically impair a President's performance of his Article II functions'' (13) by distracting, stigmatizing, or otherwise harassing him. While touting the President's "independence" and "unrivaled gravity and breadth" of duties, (14) the Court said no: "the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need." (l5) The Court left open, however, questions concerning immunity from further stages of criminal prosecution: whether a sitting President may be criminally indicted, tried, and/or sentenced by federal or state prosecutors, and whether a former President may be criminally prosecuted for her official acts.

Ely's process-based approach offers a fresh look. Current immunity doctrine highlights notions of presidential efficacy, asking whether various enforcement measures unduly impair the President's job performance. (16) I suspect Ely would hesitate to frame the problem this way; assessing whether the non-textual value of presidential effectiveness has been "unduly impaired" might feel as ungrounded and slippery as assessing whether a nontextual liberty interest has been "unduly burdened," a form of open-ended balancing Democracy and Distrust criticized in the context of unenumerated rights.

This Essay sketches how Ely's representation-reinforcing theory of judicial interpretation might frame presidential immunity doctrines and compares that frame to the Court's current approach. To what extent might various forms of presidential immunity, or exceptions thereto, be grounded in principles of democratic accountability rather than presidential efficacy? I conclude that a plausibly constructed Elyan paradigm provides an argument for immunity in many settings but also for exceptions to that immunity in narrow but important circumstances. (17) More specifically: immunity can protect the President's ability to focus on serving her view of the national interest, without being unduly chilled or sidetracked by private burdens imposed by individual actors. On the other hand, certain litigation efforts to constrain presidential misbehavior can enhance presidential accountability in a different way, by deterring Presidents from (1) "clogging the channels of [political] change" (l8) through self-entrenching actions (think election interference) or by (2) failing to represent her constituents en masse through self-dealing actions (think steering government contracts for, or basing foreign policy decisions on, personal financial gain). In general these conclusions support, and in some instances helpfully clarify and strengthen, the Court's current efficacy-based concerns; but the arguments for immunity exceptions are novel and weighty. Overall, in my view, the general Elyan approach and vocabulary offer a useful framework for immunity doctrine that should supplement if not supplant the prevailing approach.

Part I of this Essay briefly canvasses the current doctrinal approach, illustrating how the Court has crafted immunity doctrine out of concern that various forms of civil or criminal process might impair the President's ability to perform her duties effectively. Part II sketches an alternative Elyan accountability-based approach to presidential immunity, reevaluates the Court's pro-immunity arguments through this alternative frame, presents the two novel accountability-based reasons to override any erstwhile immunity, and finally sketches options for incorporating the arguments for and exceptions to immunity into doctrine.

My analysis here is admittedly partial; thoroughly considering presidential immunity's full contours would require deeply engaging other textual, historical, and functional considerations--as well as much more space. But I hope this preliminary exploration suitably celebrates both the analytical insights and staying power of Ely's masterful book on the occasion of its fortieth anniversary.


    Presidential immunity comes in two flavors. Temporary immunity protects a sitting President from judicial process while she remains in office, but no longer. Permanent immunity protects a President after she leaves office as well.

    Here I first review the arguments the Supreme Court has offered as favoring temporary immunity, then I review its arguments favoring permanent immunity, and finally I briefly consider the countervailing interests the Court weighs against both types of immunity in a separation-of-powers balancing test.


      In Clinton v. Jones, Paula Jones sued then-President Clinton in federal court on both federal- and state-law claims primarily alleging that Clinton, before becoming President, sexually harassed her. In Vance v. Trump, the New York City prosecutor through a grand jury issued a subpoena to an accounting firm for the private financial papers of then-President Trump as part of a state-law investigation into a potentially large swath of private financial misconduct, which similarly predated Trump's assuming office. (19) In both cases, the Court rejected the sitting President's claim that litigation would burden or harass them to the point of unduly impairing their job performance: Clinton as applied to all stages of civil litigation; and Vance as applied only to preindictment criminal process, leaving other stages for another day. In this section I'll briefly sketch the Court's articulated concerns regarding presidential impairment in these two cases, as these concerns will surely resurface if a sitting President is ever criminally indicted and prosecuted. The Court's concerns might be grouped in various ways; I'll group them, as did Vance, into diversion, stigma, and presidential harassment.

      1. Diversion

        The Court recognized that both civil litigation and criminal subpoenas could require the President to participate in litigation activities and thereby divert some of her time, energy, and focus away from public duties. A civil defendant might be required to assist her lawyers and participate in discovery and might choose to attend a trial; the owner of subpoenaed papers (even when held by a third-party custodian) might feel compelled to assist with (or, as here, contest) compliance. (20) The Court considered whether such diversion appreciably impairs presidential performance.

        Presidents have claimed that "he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties." (21) If so, any litigation-caused diversion means less time, energy, and perhaps mental focus for official responsibilities. In Clinton, the Court accepted this premise and assumed arguendo that personal litigation burdens necessarily trade-off against public duties. (22)


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