The Nexus Between Black-Collar Crime and Presidential Crime (Part II)
D.C. Circuit Judges and DOJ Attorneys Make the Case that No One Is Above the Law
Tomorrow, SCOTUS will hear oral argument in Trump v. United States (anyone can listen in on-line, tomorrow or in the future). This piece is about what D.C. Circuit judges and attorneys employed by the U.S. Department of Justice said recently to justify the criminal prosecution of a former president for his (purportedly) official conduct. Their statements confirm the propriety of prosecuting federal judges for their own lies and crimes. They confirm that judges have no power (under the Constitution) to retaliate against attorneys for exposing and opposing the lies and crimes of judges.
D.C. Circuit judges recently emphasized what this attorney had said in briefing to D.C. Circuit judges (about the criminal conduct of judges, including on and under the D.C. Circuit). In United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024), D.C. Circuit judges accentuated the obvious by quoting SCOTUS in United States v. Lee, 106 U.S. 196 (1882):
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. [The law] is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
Trump’s judges emphasized that all federal officers could be criminally prosecuted. That necessarily includes all federal judges. As evidence, Trump’s judges pointed to the fact that a “federal grand jury indicted [even a] former President” on “four criminal counts arising from” purported official conduct. The federal criminal law at issue in Trump was 18 U.S.C. §§ 241, 371, 1512. This attorney’s briefing (for which he was disbarred by D.C. Circuit and SCOTUS judges) also focused on those same crimes (by judges, including D.C. Circuit judges).1
In Trump, D.C. Circuit judges specifically emphasized that “Judges are similarly liable to the criminal laws for their official acts,” including the “notable example” of knowingly “violating a federal statute.” They cited SCOTUS in Ex parte Virginia, 100 U.S. 339 (1880). DOJ attorneys, below, also cited that same SCOTUS decision. So they all accentuated that judges certainly can be prosecuted for criminal misconduct, even when it was purportedly “official” conduct. They invoked SCOTUS’s own conclusion that “holding an office” cannot “relieve the holder from obligation to obey the Constitution” or diminish any “power” of federal criminal law to “punish his disobedience.”
On April 8, 2024, SCOTUS docketed a brief by DOJ attorneys (to support the decision, of D.C. Circuit judges in Trump). Their brief had important points in common with this attorney’s petition to SCOTUS docketed three days earlier, showing that he could not be disbarred for statements in court filings exposing and opposing the lies and crimes of judges.2
Like the D.C. Circuit judges, above, DOJ attorneys in Trump v. United States emphasized that “no person is above the law.” They also emphasized that all “judges and prosecutors” irrefutably are “subject to criminal prosecutions as are other citizens.” To prove their point, they cited SCOTUS in Dennis v. Sparks, 449 U.S. 24, 31 (1980) (emphasizing that judges can be prosecuted criminally) and Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (emphasizing that prosecutors can be prosecuted criminally)). They also presented more proof from SCOTUS precedent:
The recognition that civil immunity does not imply criminal immunity for these officials has deep roots in the law, e.g., Ex parte Virginia, 100 U.S. 339, 348 (1880), and it equally applies here.
Indeed, exposure to criminal liability is one of the justifications for civil immunity. Criminal prosecutions ensure that [ ] official misconduct is adequately punished and deterred. Accordingly, [SCOTUS] has “never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivation of constitutional rights.” O’Shea v. Littleton, 414 U.S. 488, 503 (1974). “On the contrary, the judicially fashioned doctrine of official immunity does not [and constitutionally cannot] reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress.’” Ibid. (quoting Gravel v. United States, 408 U.S. 606, 627 (1972)).
Moreover, the “DOJ” has long “rejected” as “unreasonable” any contention or implication that any “offending federal officer [including judges] acquires a lifetime immunity against indictment unless the Congress takes time to impeach him.” Indeed, “scores of federal officers have been criminally prosecuted throughout our history,” even though “fewer than two dozen officers have ever been impeached by the House, with only eight—all federal judges—convicted in the Senate.”
DOJ attorneys emphasized that “critically, for judges and prosecutors, absolute civil immunity has never implied criminal immunity.” “The established rule for judges and prosecutors” under “common-law immunity principles” is that “for official acts” they “lack any corresponding criminal immunity.”
In fact, the DOJ attorneys emphasized (quoting SCOTUS in Cheney v. United States Dist. Ct., 542 U.S. 367, 384 (2004)), the “commitment to the rule of law” is “nowhere more profoundly manifest” than in criminal justice. “Indeed” the DOJ attorneys further emphasized (quoting SCOTUS in United States v. Nixon, 418 U.S. 683, 707 (1974)), the “primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.”
DOJ attorneys emphasized that for many decades, “the [DOJ] has held the view that [every executive or judicial officer, even] a former President may face criminal prosecution, and Independent and Special Counsels have operated and Independent and Special Counsels have operated from that same understanding.”
DOJ attorneys also emphasized that “neither constitutional text nor historical practice supports applying anything akin to legislative immunity” to judges.
[T]he Speech or Debate Clause [in the U.S. Constitution Article I, which protects members of Congress], does not support [any potential judicial] immunity claim. No similar textual immunity applies to [judges]. And history explains the distinctive reasons for protecting legislators [from judges]. The Clause arose in response to British kings’ use of “the criminal and civil law to suppress and intimidate critical legislators,” United States v. Johnson, 383 U.S. 169, 178 (1966), where “judges were often lackeys of [kings].” Id. at 181.
“The Framers” of our Constitution “had experienced firsthand the dangers of” public officials who saw themselves as “above the law, and they adopted a system of checks and balances to avoid those dangers. They designed a Constitution that would ensure that” every public servant was “accountable to justice under laws passed by Congress under Article I, enforced by the Executive Branch under Article II, and adjudicated by the courts under Article III. That careful design leaves no room for an implicit and previously unrecognized rule categorically immunizing” any federal officer “from accountability for criminal conduct involving the misuse of his office.” “That principle flows from the Constitution itself[.]”
DOJ attorneys (quoting Justice Thomas (dissenting) in Trump v. Vance, 591 U.S. 786, 816 (2020)), emphasized that “[t]he text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford” any judge “absolute immunity.” DOJ attorneys (quoting the U.S. Constitution Article I) emphasized that “[s]ince the Founding, every” judge “has known that he could be impeached and separately ‘subject to Indictment, Trial, Judgment and Punishment, according to Law.’” The impeachment of SCOTUS Justice Chase in 1804 powerfully emphasized that very point. Indeed, Article III emphasizes that all federal “Judges, both of the supreme and inferior Courts, shall hold their Offices [only] during good Behaviour.” U.S. Const. Art. III, §1. Alexander Hamilton, an attorney, in The Federalist No. 78, emphasized the extreme importance to our Constitution and our society of holding judges to that particular standard.
Moreover, the DOJ attorneys emphasized, “the Constitution’s structure presupposes a government under law, not an absolute shield that places” any judge “above the criminal law unless he is first impeached and convicted.” They also emphasized more of Justice Thomas’s dissenting opinion in Trump v. Vance:
“James Wilson, a signer of the Constitution and future [SCOTUS] Justice [encouraged] Pennsylvanians [to ratify the Constitution by explaining] that ‘far from being above the laws, [every federal civil or judicial officer] is amenable to [the law] in his private character as a citizen, and in his public character by impeachment.’ ” Vance, 591 U.S. at 816-817 (Thomas, J., dissenting) [(citation omitted)]. Wilson therefore recognized that prosecution was the means of holding [every civil or judicial officer] accountable in his “private character” for criminal acts, while impeachment was the means of addressing his “public character” as office holder. “James Iredell, another future Justice, [similarly emphasized] in the North Carolina ratifying convention that ‘[i]f [any federal civil or judicial officer] commits any crime, he is punishable by the laws of his country.’” Id. at 817 (Thomas, J., dissenting) [(citation omitted)].
The DOJ attorneys also addressed additional crucial constitutional points. Judges retaliating against an attorney for exposing or opposing criminal judicial misconduct “raise” multiple extremely serious “separation-of-powers concerns.” Such retaliation amounts to judges blatantly usurping the power to “prevent Congress from applying the criminal laws equally to all persons,” which “contradicts bedrock principles by placing” federal judges essentially “above the law” (and the Constitution). For that last quote, the DOJ attorneys quoted United States v. Lee, as D.C. Circuit judges did, above.
DOJ attorneys (quoting SCOTUS in Nixon) also explained how such judicial retaliation “raise[s]” additional extreme “separation-of-powers concerns,” including “by giving” judges (actually, judges usurping) the power to obstruct the “Executive’s decision to prosecute—a decision over which the Executive Branch has ‘exclusive authority and absolute discretion.’ ” They explained how retaliating judges blatantly seek to “frustrate the Executive Branch’s enforcement of the criminal law.”
A federal prosecution [ ] implicates the President’s constitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const. Art. II, § 3; see Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting) (The “investigation and prosecution of crimes is a quintessentially executive function.”) The Attorney General and federal prosecutors help fulfill that constitutional function. United States v. Armstrong, 517 U.S. 456, 464 (1996). Allowing [judges to surreptitiously effectively grant each other] absolute immunity from applicable criminal laws would frustrate the Executive’s constitutional authority and responsibility to enforce those laws. See United States v. Texas, 599 U.S. 670, 678-679 (2023).
DOJ attorneys also explained how SCOTUS and appeals court judges also essentially surreptitiously granted other judges (and even themselves) clearly unconstitutional judicial pardons for criminal misconduct. Only a sitting president “shall have Power to grant Reprieves and Pardons for Offences against the United States.” U.S. Const. Art. II, §2, cl. 1. Any judge’s “acceptance of a pardon represents” a “confession of Guilt.” Burdick v. United States, 236 U.S. 79, 91 (1915).
Based on all the foregoing, DOJ attorneys emphasized that “while serving as President,” Donald Trump criminally “conspired” and lied “by using knowingly false” contentions “to obstruct [a] federal government function.” They reiterated that the (then) president lied by asserting “knowingly false claims.” They emphasized the (then) president’s criminal misconduct included “using deceit” to “subvert the legitimate” outcome of official proceedings; “using deceit to organize fraudulent” results and “cause” people “to send false” documents to federal authorities; “leveraging the [DOJ] to use deceit;” “attempting to enlist” other federal officers “to fraudulently alter” official “results” of a federal “proceeding.”
“Based on those allegations,” DOJ attorneys insisted that the (then) president “conspir[ed] to defraud the United States, in violation of 18 U.S.C. 371;” “conspir[ed]” and “corruptly obstruct[ed official proceedings],” thereby committing crime(s) in “18 U.S.C. 1512(c)(2)” and “conspir[ed] to violate one or more person’s constitutional right[s]” in “violation of 18 U.S.C. 241.”
The DOJ attorneys also emphasized that criminal judicial misconduct irrefutably may be “proved by evidence of a range of acts taken to achieve an unlawful objective, including the abuse of [official] power as a means of carrying out the conspiracy.” They added the following:
The criminal prohibitions at issue here illustrate that point: they proscribe a conspiracy to defraud the United States by defeating its lawful functions, 18 U.S.C. 371; substantive and conspiratorial efforts to obstruct official proceedings, 18 U.S.C. 1512(c)(2); and a conspiracy to “injure [or] oppress . . . the free exercise or enjoyment” of any citizen’s constitutional rights, 18 U.S.C. 241. [No judge even has] argued—and could not plausibly argue—that the Constitution vests [any judge] with authority to perform the conduct prohibited by those statutes, or that [any judge] would be unable to fulfill his constitutionally assigned role if he were prosecuted for such inherently culpable conduct.
The express text of nearly all federal criminal laws covers all persons, including [even] the President. The statutes [at issue] are illustrative. They use the terms “[w]hoever” and “person[]” to describe [can commit such crimes]. See 18 U.S.C. 1512(c) (“whoever”); 18 U.S.C. 241, 371 (“two or more persons”). Both terms naturally include individuals who occupy government offices [ ]. See Nardone v. United States, 302 U.S. 379, 381-384 (1937) (holding that the term “any person” in a statute barring wiretapping includes federal agents because “the sovereign is embraced by general words of a statute intended to prevent injury and wrong”).
“Prosecutions,” the DOJ attorneys explained, necessarily “proceed from institutions that apply the facts and the law. And” the role of “judicial supervision” is limited “to prevent[ing] any abuses.” “Criminal prosecution” must be “based on facts and law, and” must be “rigorously adjudicated in court. Adopting” judges’ “position” (that they have the power to retaliate against attorneys for exposing the lies and crimes of judges) “would thwart the ordinary application of criminal law.”
Consider, for example, this attorney’s earlier petition (regarding a D.C. Circuit decision) docketed under No. 23-533.
Petitions to SCOTUS are available at https://www.supremecourt.gov/docket/docket.aspx. This attorney’s petition was docketed under No. 23-1087 on April 5, 2024 (Main Document). The DOJ attorneys’ brief (addressed herein) was docketed under No. 23-939 on April 8, 2024 (Brief of respondent United States (Main Document)).