A Prudential Way Forward in Trump v. United States (Philip Bobbitt, July 29, 2024, Just Security)
The issue in Trump v. United States, however, turned on the prudential necessities of executive authority that were repeatedly stressed in the majority opinion.
The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’” (citations omitted)
If, as I have argued,[7] the reflections of the framers and other observations from the past can be effectively used outside the narrow frame of historical argument per se, the prudential nature of the quoted words should not confuse us. Moreover, prudential imperatives are often invoked both in historical arguments[8] and doctrinal arguments.[9] Where the distinction matters is in cases of first impression like this one. Then the power of historical argument is at its weakest – – we would not want the ratifiers’ original conception of global warfare as a series of naval engagements to govern our construction of the president’s war powers – – and, by definition, doctrine and precedent. A case of “first impression” is, by definition, unprecedented.
The problem is a prudential one, as evidenced, not contradicted, by the Court’s reference to our founding history:
In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227.
In many respects, the tests on remand to the district court would be the same whether a structural or a prudential rationale were employed: if the alleged act by the president can fairly be said, presuming good faith, to be an example integral to those official duties that are committed to him alone by the Constitution, he enjoys immunity from subsequent indictment. But there can never be valid constitutional authority to orchestrating a constitutional crime—an offense that would be a valid predicate for impeachment. He may appoint whom he chooses, but he cannot accept a bribe for doing so; he may make peace overtures to a foreign state with whom the United States is at war but he may not do so acting as an agent for that state, betraying his own country; he may extract a promise from a foreign state to pursue the harassment of his political adversaries but not by impounded congressionally authorized funds; he may pardon any offender he pleases, but it is a constitutional offense to use the pardon power to entice an informant to remain silent in order to obstruct an investigation into the president’s own criminality.
Such a prudential analysis would respond to Justice Ketanji Brown Jackson’s cogent complaint that the majority in Trump simply does not provide a rationale sufficient to guide the lower courts – – or future presidents – – “ex ante.” The prudential approach would provide protection for the president that should be clearly perceived as consistent with our historic commitment to put the State under law, and it would ring fence a subsequent president from turning the powers of the U.S. government on his predecessor as Donald Trump repeatedly threatened to do in the 2024 presidential campaign. The Supreme Court, in Trump, provides the basis for such a prudential approach going forward.