Article

Regulating Hidden AI Authorship

With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI.

In the markets for creative content—fine art, books, movies, television, music, and the like—producers have several financial reasons to hide the role of generative AI in a work’s creation. Copyright law is partially responsible. The Copyright Office and courts have concluded that only human-authored works are copyrightable, meaning much AI-generated content falls directly into the public domain. Producers thus have an incentive to conceal the role of generative AI in a work’s creation because disclosure could jeopardize their ability to secure copyright protection and monetize the work.

Whether and why this obfuscation harms consumers is a different matter. The law has never required disclosure of the precise ways a work is created; indeed, failing to publicly disclose the use of a ghostwriter or other creative assistance is not actionable. But AI authorship is different for several reasons. There is growing evidence that consumers have strong ethical and aesthetic preferences for human-created works and understand the failure to disclose AI authorship as deceptive. Moreover, hidden AI authorship is normatively problematic from the perspective of various theories of artistic value. Works that masquerade as human-made destabilize art’s ability to encourage self-definition, empathy, and democratic engagement, turning all creative works into exclusively entertainment-focused commodities.

This Article also investigates ways to facilitate disclosure of the use of generative AI in creative works. Industry actors could be motivated to self-regulate, adopting a provenance-tracking or certification scheme. And Federal Trade Commission (“FTC”) enforcement could provide some additional checks on the misleading use of AI in a work’s creation. Intellectual property law could also help incentivize disclosure. In particular, doctrines designed to prevent the overclaiming of material in the public domain—such as copyright misuse—could be used to raise the financial stakes of failing to disclose the role of AI in a work’s creation.

Introduction

When Marvel Studios’ big-budget series, Secret Invasion, premiered in June 2023, most viewers did not give a second thought to the show’s opening credits, which featured angular alien faces, a toothless Samuel L. Jackson, and swirling green cityscapes. Shortly after the show premiered, however, director and executive producer Ali Salim made an unusual admission: the credit sequence’s visuals had been generated using artificial intelligence (“AI”).1 1.Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY].Show More Public outcry was swift. Many criticized the use of generative AI by a wealthy studio as “unethical,” especially in light of Hollywood labor disputes driven by the possible effects of generative AI on acting and writing jobs.2 2.See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/.Show More Others argued that Marvel’s use of AI was lazy, yielding images devoid of artistic merit.3 3.See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e.Show More The criticism ultimately prompted Marvel to walk back its admission, explaining that “AI is just one tool among the array of tool sets our artists used. No artists’ jobs were replaced by incorporating these new tools; instead, they complemented and assisted our creative teams.”4 4.Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W].Show More

With the dramatic arrival of high-quality generative AI systems,5 5.For a full discussion of what I mean by “generative AI,” see infra Section I.A.Show More scholars and policy-makers have begun debating the potential harms posed by the technology’s many possible applications. Much of this debate has centered on generative AI’s ability to create materials that masquerade as factual—in particular, false photorealistic images and audiovisual content, commonly known as “deepfakes”—which can harm individual reputations or further misinformation that undermines public trust.6 6.See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI).Show More But the Secret Invasion controversy illustrates an underexplored dimension of the lack of transparency in many uses of generative AI: Are consumers also deceived by nonfactual, AI-generated creative works that masquerade as human-made? Put another way, does hidden AI “authorship”—that is, the undisclosed use of AI to produce expression that we generally consider to be within the purview of human creators7 7.As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2.Show More—pose harm to the public?

This Article provides the first comprehensive treatment of this question, as well as the problem of hidden AI authorship more generally. In so doing, this Article makes three contributions. The first contribution is descriptive: the Article examines how and why producers of commercial creative works—visual art, books, television, music, films, and more—might choose to hide the role of generative AI in the production of new content. Though not immediately obvious, this phenomenon is deeply intertwined with intellectual property law, and copyright law in particular. As copyright decision-makers increasingly find that AI-generated works are largely unprotectable, producers have an incentive to hide their use of the technology. The second contribution is normative: the Article argues that the hiding of AI authorship indeed poses harm to consumers, albeit a less straightforward form of harm than the clear problems posed by deceptive deepfakes. This harm must be understood by examining the strong evidence that many consumers prefer human-created works of art and entertainment, as well as the broader social significance of human authorship in art’s ability to foster self-definition, empathy, and political engagement. The third contribution is prescriptive: the Article identifies various regulatory options, including existing consumer protection and intellectual property law regimes, that could be used to encourage greater transparency among the sellers of AI-generated content, enabling better informed consumer choice.

How might generative AI come to be frequently, but nontransparently, used to create new works of art and entertainment? As Part I explores, this problem is already emerging. Generative AI is quickly being incorporated into content creation, leading large content producers to encounter a dilemma like the one faced by Marvel: whether or not to disclose the role of the technology in a work’s creation. As the creators of Secret Invasion discovered, many consumers seem to bristle at the use of the technology. Indeed, recent empirical research suggests that many consumers consider “AI-generated” works inferior, even if they cannot tell from the work itself that AI had a role in its creation.8 8.See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”).Show More This yields a clear financial incentive to hide the AI provenance of a work from the public.

Current trends in copyright law compound producers’ incentives to hide their use of generative AI. It is black-letter law that a work created by a nonhuman is ineligible for copyright protection.9 9.See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings).Show More Courts and the Copyright Office10 10.The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2.Show More have emphasized the importance of “elements of human creativity” when assessing whether an AI-generated work can be registered, such as human-made decisions about how to organize and structure AI-generated material in a final work.11 11.See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation).Show More For content producers, this means that highlighting the role of generative AI in a work’s production can compromise efforts to achieve copyright registration.12 12.See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection).Show More Failure to obtain protection essentially means that new content immediately falls into the public domain and cannot be monetized. Thus, if trends in the law continue in their likely direction, content producers will increasingly try to hide the role of AI in new creative works to ensure such works remain protectable.13 13.Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C.Show More

Should this obfuscation be considered a problem? After all, if a consumer enjoys a work like the Secret Invasion credit images, does it matter whether they know that work was produced using generative AI? Part II addresses this question, arguing that consumers seem to have a range of “process preferences”14 14.See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”).Show More—that is, preferences that relate to how a work was created, rather than just the work itself—that implicate the use of generative AI. One issue is ethical: consumers may prefer human-created works because of ethical concerns over AI supplanting human labor.15 15.See infra Subsection II.A.1.Show More Another issue is aesthetic: as showcased in old debates regarding the use of “mechanical reproduction” in art, human creation can confer an element of authenticity on a creative work that a machine-generated work lacks.16 16.See infra Subsection II.A.2.Show More Finally, consumers have deep-seated connections to specific artists, born out of a sense of fandom, which are undermined by the more specific example of AI-generated works that mimic an artist’s voice or style.17 17.See infra Subsection II.A.3.Show More Considering these preferences, obscuring the role of generative AI in a work’s creation may prevent a consumer from making an informed decision about whether to consume it.

But just because consumers have these preferences does not mean the law must respect them.18 18.See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action).Show More Part II thus also provides a separate normative case for why consumers who care about human authorship should be taken seriously. As aesthetic and ethical theorists have argued, authorship and readership19 19.By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B.Show More are fundamentally social activities; through art, the public can engage in ongoing “dialogic” processes of self-definition, ethical development, and political engagement. Novelist and journalist Jay Caspian Kang has recently put it more plainly: “[T]he reason we read books and listen to songs and look at paintings is to see the self in another self, or even to just see what other people are capable of creating.”20 20.Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives).Show More Thus, even if, as some have argued, the author’s “intent” lacks significance,21 21.See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts).Show More the author’s and reader’s basic shared humanness can be essential to allowing art to play a meaningful social and ethical function. The undisclosed use of generative AI in authoring a work22 22.Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1.Show More fundamentally destabilizes this dialogue between author and reader, robbing art of its social value and turning it into an exclusively entertainment-focused commodity.23 23.See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms).Show More The argument here is not that AI authorship is inherently immoral; indeed, AI might yield a range of works that consumers enjoy. Rather, it is that such use must be disclosed in order to allow consumers to choose whether and on what terms they wish to engage with a work.

The obvious solution to the problem of undisclosed AI authorship is to provide consumers with information about a work’s provenance, so that they can make an informed choice. Part III explores various regulatory options for fostering transparency, examining their benefits and shortcomings. An affirmative disclosure regime could come about through industry self-regulation; if it is true that some consumers prefer human-made works, the market would logically step in to provide this information.24 24.See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime).Show More A legislative transparency mandate would also—and more thoroughly—accomplish this task.25 25.See infra Subsection III.A.2.Show More In lieu of a comprehensive affirmative disclosure regime, the FTC could also target specific instances in which producers deceptively omit information about a work’s origins so as to mislead consumers.26 26.See infra Section III.B.Show More

An additional, and perhaps more politically feasible,27 27.See infra Section III.C (exploring barriers to legislation and FTC enforcement).Show More set of options is offered by existing intellectual property law. Such an approach would look to IP’s existing doctrines as a way of forcing information, making it costlier for producers to hide the fact that they used generative AI to produce works. In particular, litigants could take advantage of the often-ignored doctrine of copyright misuse to police those who assert that an entire work was human-created, when, in fact, it was a product of AI. Such assertions should fall within one of the categories of copyright misuse: the overclaiming of material that is in the public domain.28 28.See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable).Show More Using the copyright misuse doctrine in litigation would raise the financial risks of surreptitiously using AI-generated materials, incentivizing rightsholders to disclose (and disclaim) this content.29 29.See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1.Show More Trademark law and the right of publicity could also play a role in raising the financial stakes of nontransparency. For the specific subset of AI-generated works that mimic a human artist’s voice or likeness,30 30.See infra Subsection II.A.3 (discussing examples such as “fake Drake”).Show More trademark and the right of publicity provide causes of action that could subject producers and distributors to damages.31 31.See infra Subsection III.C.2.Show More In combination, these various tools could ideally achieve a world in which information about most works’ provenance is readily accessible to consumers.

  1.  Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY]. ↑

  2.  See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/. ↑

  3.  See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e. ↑

  4.  Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W]. ↑

  5.  For a full discussion of what I mean by “generative AI,” see infra Section I.A. ↑

  6.  See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI). ↑

  7.  As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2. ↑

  8.  See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”). ↑

  9.  See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings). ↑

  10.  The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2. ↑

  11.  See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation). ↑

  12.  See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection). ↑

  13.  Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C. ↑

  14.  See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”). ↑

  15.  See infra Subsection II.A.1. ↑

  16.  See infra Subsection II.A.2. ↑

  17.  See infra Subsection II.A.3. ↑

  18.  See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action). ↑

  19.  By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B. ↑

  20.  Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives). ↑

  21.  See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts). ↑

  22.  Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1. ↑

  23.  See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms). ↑

  24.  See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime). ↑

  25.  See infra Subsection III.A.2. ↑

  26.  See infra Section III.B. ↑

  27.  See infra Section III.C (exploring barriers to legislation and FTC enforcement). ↑

  28.  See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable). ↑

  29.  See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1. ↑

  30.  See infra Subsection II.A.3 (discussing examples such as “fake Drake”). ↑

  31.  See infra Subsection III.C.2. ↑

Fines, Forfeitures, and Federalism

Fines are ubiquitous in modern society, and they are imposed for both serious crimes and minor civil wrongs. The U.S. Supreme Court recently recognized that the Constitution’s Excessive Fines Clause applies to the states, but that decision raises previously unexplored questions as to how to enforce the Clause’s protections in the states. A key question is what role, if any, federalism should play in crafting doctrinal rules that apply the Clause’s protections to state and local fines and related property forfeitures. This Article is the first to accord in-depth treatment to that important question.

The extent to which federalism principles should apply does not have an immediate and obvious answer. On the one hand, federalism plays a significant role in the Court’s jurisprudence on the Cruel and Unusual Punishment Clause. The Court therefore generally takes a highly deferential approach in reviewing sentences of imprisonment. Lower courts have applied that same deferential review in the context of the Excessive Fines Clause. On the other hand, fines and forfeitures are unlike other forms of punishment—such as prison—because they are often used as a revenue source for state and local governments, creating a conflict of interest for state and local decision-making bodies.

To address this conundrum, this Article makes the novel argument that the Court should look to the exactions doctrine under the Takings Clause, which often implicates similar concerns of government self-interest and overreaching. Exactions and excessive fines are conceptually similar, but scholars thus far have overlooked the close relationship between them. The exactions doctrine gives minimal weight to federalism concerns, and it applies a heightened-scrutiny standard that is well suited to the excessive fines context. Indeed, differences between federal practice and state and local practices as to fines suggest that state and local discretionary fines should be subject to closer constitutional scrutiny than federal fines. As a recent example illustrates, such heightened scrutiny would ensure that the Excessive Fines Clause is not merely a parchment barrier, while still accounting for variations between states and localities in terms of their communities’ values and needs.

Introduction

The U.S. Supreme Court recently held that the Excessive Fines Clause of the Eighth Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment and, thus, applies to state action.1 1.Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (holding that the Excessive Fines Clause applied to the states).Show More The expanded applicability of the Excessive Fines Clause may ultimately mean very little, as lower courts generally are highly deferential in their constitutional review of fines and forfeitures.2 2.See infra Subsection I.A.2.Show More Indeed, many courts apply a presumption of constitutionality to a fine or forfeiture below the statutory maximum, rendering illusory the Clause’s protections3 3.See, e.g., Ficken v. City of Dunedin, No. 21-11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022); City of Seattle v. Long, 493 P.3d 94, 115 (Wash. 2021); United States v. Suarez, 966 F.3d 376, 387 (5th Cir. 2020); Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. Ct. 2022); Morrow v. City of San Diego, No. 11-cv-01497, 2011 WL 4945015, at *5 (S.D. Cal. Oct. 18, 2011).Show More—even, for example, when someone stands to lose their house for failure to mow their lawn.4 4.See infra Section I.A (discussing Ficken).Show More

This deferential review is consistent with principles of federalism, which generally provide that the federal branches of government, including the judiciary, must respect state and local decision-making.5 5.See infra Sections I.B, II.A.Show More The current Court has fully embraced federalism in many recent decisions, leading one commentator to refer to the Court as “the most ‘federalism’-friendly court in at least a century.”6 6.Sanford V. Levinson, Is the Supreme Court Moving Us Backward, or Back Toward Federalism?, Dall. Morning News (July 29, 2022, 7:00 AM), https://www.dallasnews.com/op‌inion/commentary/2022/07/31/is-the-supreme-court-moving-us-backward-or-back-toward-fe‌deralism/ [https://perma.cc/NNW4-FCZ6]; see also Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers U. L. Rev. 571, 572–73, 601–06 (2023) (citing Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), and West Virginia v. EPA, 142 S. Ct. 2587 (2022), as recent decisions demonstrating that the Court, overall, is elevating federalism concerns over issues such as abortion rights and climate change).Show More However, neither the Court nor scholars have yet directly addressed the weight federalism concerns carry in the excessive fines context because of the recentness of the Court’s incorporation of the Excessive Fines Clause. I seek to explore that key issue herein.

Ultimately, I conclude that federalism should play a minimal role as to the Excessive Fines Clause and, relatedly, that heightened scrutiny should instead apply to the review of discretionary state and local fines. This conclusion, however, is in tension with the Court’s current doctrine. Thus far, the Court has relied upon cases involving the Cruel and Unusual Punishment Clause for guidance in shaping the contours of excessive fines doctrine.7 7.See United States v. Bajakajian, 524 U.S. 321, 336–37 (1998).Show More It has done so with little reasoning.8 8.See id. The Eighth Amendment provides in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.Show More Federalism principles play a central role in the Court’s cruel and unusual punishment cases, such that the Court takes a highly deferential approach to its review of sentences of imprisonment.9 9.See infra Section II.A.Show More Lower courts have adopted that same deferential approach in the excessive fines context.10 10.See infra Section II.B.Show More

This Article argues that the exactions doctrine within the Takings Clause is a better analogue—at least as to state and local fines. Both the Takings Clause and the Excessive Fines Clause limit government acquisitions of property: takings must be for public use and just compensation must be paid,11 11.U.S. Const. amend. V.Show More and punitive fines and forfeitures must not be excessive.12 12.See Austin v. United States, 509 U.S. 602, 610 (1993); U.S. Const. amend. VIII.Show More State and local governments often rely upon fines and forfeitures as sources of revenue, raising concerns similar to those underlying exactions—that the government is acting out of self-interest, overreaching, and singling out the few to shoulder what should be public burdens.13 13.See infra Sections II.B, III.A. I use the term “self-interest” throughout to refer to government action for the purpose of acquiring funds and other resources to fund the workings of government itself or to use for a public project. Cf. United States v. Winstar Corp., 518 U.S. 839, 896 (1996) (“[W]hen we speak of governmental ‘self-interest,’ we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties.”). I distinguish this from government action that resolves disputes between private parties or that costs the government money. Although the funds or other property acquired will ultimately serve the public interest when used for public services or projects, the risk of government overreach is heightened when it seeks to expand its resources. See infra Subsection III.C.1.Show More These concerns are generally not present as to sentences of imprisonment, which cost the government money.

To date, scholars have largely overlooked this close relationship between takings and excessive fines. This Article explores the connection and shows how takings jurisprudence—primarily the exactions doctrine—may prove especially useful for the Court as it continues to flesh out the doctrinal details of the Excessive Fines Clause.

In the takings context, the Supreme Court has held that heightened scrutiny applies to exactions, which occur when the government requests private property in exchange for lifting land-use restrictions.14 14.See Lee Anne Fennell, Escape Room: Implicit Takings After Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 49–50 (2022) (noting that exactions receive “high scrutiny” and are reviewed under standards “far beyond the usual standard for social and economic legislation”).Show More Specifically, the Court requires the government to show both (1) a nexus between the exaction and the proposed development and (2) that the exaction is roughly proportionate to the impact of the proposed development.15 15.See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 612 (2013).Show More The Court has explained that its exactions doctrine is a special application of its “unconstitutional conditions doctrine” and has justified the heightened scrutiny with concerns about government self-interest and overreaching.16 16.See infra Paragraph III.B.2.i; Subsection III.C.1.Show More The Court has rejected federalism-based arguments that a more deferential standard should apply to review of state and local exactions.17 17.See infra Subsection III.B.2.Show More

Although I do not rely on the unconstitutional conditions doctrine, I argue that heightened scrutiny should apply to discretionary fines due to similar concerns, and despite the federalism principles at play.18 18.Outside of the excessive fines context, scholars have argued that the Court should adopt an inquiry similar to the exactions inquiry to determine whether the public use requirement of the Takings Clause is satisfied with respect to a particular exercise of the power of eminent domain. See Brief for David L. Callies et al. as Amici Curiae Supporting Petitioners at 22–25, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108).Show More State and local fines often directly fund those governments, bringing in millions in revenue.19 19.See, e.g., Ben Wieder, Shirsho Dasgupta & Sheridan Wall, Families Lose Homes After Florida Cities Turbocharge Code Enforcement Foreclosures, Mia. Herald (Sept. 2, 2024, 12:43 PM), https://www.miamiherald.com/news/business/real-estate-news/article273093600.‌html [https://perma.cc/FSZ9-K98C].Show More By contrast, federal criminal fines are generally not used as a source of revenue.20 20.Federal criminal fines generally do not pose issues of self-interest, as most criminal fines are paid into the Crime Victim Fund. See 34 U.S.C. § 20101(b)(1). Federal forfeitures, however, do implicate issues of government self-interest, as they often function as revenue sources for both the federal government and, through equitable sharing programs, for state and local governments. See Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 15–17 (3d ed. 2020), https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf [https://perma‌.cc/JQ2H-YWS8].Show More Further, state and local fines are imposed by judges who often have wide discretion as to the fine amounts and generally are not required by statute to ensure that the fine is proportional to the severity of the offense and the offender’s ability to pay. Federal statutes, however, require federal courts to consider the circumstances of the offense and the offender’s financial circumstances. Concerns of government overreach and singling out are thus particularly acute in the context of state and local discretionary fines, suggesting that they should perhaps be subject to more scrutiny than in the federal context—not more deference on federalism grounds.21 21.See infra Section IV.A.Show More

In analyzing mandatory fines, which are similar in nature to legislative exactions and involve heightened federalism concerns, I rely upon the Supreme Court’s 2024 decision in Sheetz v. County of El Dorado, holding that legislative exactions are not categorically excluded from heightened review.22 22.144 S. Ct. 893, 902 (2024).Show More I ultimately suggest that certain mandatory fines may violate the Excessive Fines Clause to the extent they wholly fail to account for the individualized circumstances of the offense and the offender.

The heightened scrutiny proposed in this Article would be a substantial step toward eliminating the significant governmental abuses that currently occur with respect to discretionary and certain mandatory fines and forfeitures. Fines and forfeitures have a disproportionate impact on impoverished and disadvantaged groups.23 23.For example, a 2023 investigation by the Miami Herald shows that Black-owned heirs’ property was recently the target of “ramped-up foreclosures over unpaid code fines in numerous cities across [Florida].” Amelia Winger, Heirs to Black-Owned Homes Face Ramped-Up Foreclosures. Here’s Who’s Pushing Back, Mia. Herald (Sept. 2, 2024, 7:50 AM), https://www.miamiherald.com/news/business/real-estate-news/article276644691.‌html [https://perma.cc/ZF46-GFK7].Show More They can result in debtors losing their ability to pay for basic necessities, including rent or housing payments, which also may impact debtors’ families.24 24.Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 67 (2018) [hereinafter Colgan, Debtors’ Prison].Show More Fines often result in property liens, which if foreclosed upon (a common practice in some states) can result in the loss of the debtor’s home.25 25.See Wieder et al., supra note 19; Jayati Ramakrishnan, Analysis Finds Property Owners in Portland’s Most Diverse, Gentrifying Areas Hardest Hit by Code Violation Fines, The Oregonian (Nov. 3, 2021, 6:00 AM), https://www.oregonlive.com/portland/2021/11/analysis-finds-property-own‌ers-in-portlands-most-diverse-gentrifying-areas-hardest-hit-by-code-vio‌lation-fines.html [https://perma.cc/9GDQ-7P6D]; Jaelynn Grisso, Code Violations Can Be Double-Edged Sword for Low-Income Residents, Matter News (June 4, 2021), https://matter‌news.org/comm‌unity/code-violations-can-be-double-edged-sword-for-low-income-residents/ [https://perma.‌cc/V87S-PD4X]; Eileen Zaffiro-Kean, Daytona Properties with Unpaid Fines Could Face Foreclosure, Daytona Beach News-J. (May 14, 2017, 3:13 PM), https://www.n‌ews-jour‌nalonline.com/story/business/real-estate/2017/05/14/daytona-properties-with-unpai‌d-fines-c‌ould-face-foreclosure/21045567007/ [https://perma.cc/VS7N-BUGH]. In some states this practice is very common. In the past eight years, one attorney has filed foreclosure lawsuits against more than 800 properties in nine Florida cities. Ben Wieder, Lawyer Once Helped Debt-Ridden Owners Hang on to Homes. Now He Helps Cities Take Them Away, Mia. Herald (Jan. 26, 2025, 6:35 AM), https://www.miamiherald.com/news/bus‌iness/real-est‌ate-news/arti‌cle273093630.html [https://perma.cc/7GP2-M8QP].Show More State and local governments can also use fines and foreclosures on the related liens as a way to acquire property without formally condemning blighted property and paying the just compensation required under the Takings Clause.26 26.See infra Section IV.A.Show More

This Article proceeds as follows: Part I examines key questions about the application of the Excessive Fines Clause that remain after Timbs v. Indiana, which held that the provision applies to the states. It also discusses the role federalism plays both in court opinions and the scholarship addressing the formulation of doctrine to enforce the Bill of Rights. Part II of the Article analyzes the role federalism has played in the Supreme Court’s cruel and unusual punishment cases and how those cases have influenced the Court with respect to its formulation of doctrine to implement the meaning of the Excessive Fines Clause. Part III then turns to the Court’s takings jurisprudence and explores (1) the similarities between takings and excessive fines, (2) the heightened scrutiny that applies in the exactions context, and (3) the federalism arguments against such scrutiny. Part IV argues that the Court should apply its heightened scrutiny to the review of discretionary fines so as to ensure that excessive fines provisions do not remain toothless. This Part further argues that federalism generally has only a minimal role to play in this context. Federalism plays a larger role as to mandatory fines, but as I suggest, certain mandatory fines may themselves be inconsistent with the Excessive Fines Clause. A short Conclusion follows.

  1.  Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) (holding that the Excessive Fines Clause applied to the states). ↑
  2.  See infra Subsection I.A.2. ↑
  3.  See, e.g., Ficken v. City of Dunedin, No. 21-11773, 2022 WL 2734429, at *3 (11th Cir. July 14, 2022); City of Seattle v. Long, 493 P.3d 94, 115 (Wash. 2021); United States v. Suarez, 966 F.3d 376, 387 (5th Cir. 2020); Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. Ct. 2022); Morrow v. City of San Diego, No. 11-cv-01497, 2011 WL 4945015, at *5 (S.D. Cal. Oct. 18, 2011). ↑
  4.  See infra Section I.A (discussing Ficken). ↑
  5.  See infra Sections I.B, II.A. ↑
  6.  Sanford V. Levinson, Is the Supreme Court Moving Us Backward, or Back Toward Federalism?, Dall. Morning News (July 29, 2022, 7:00 AM), https://www.dallasnews.com/op‌inion/commentary/2022/07/31/is-the-supreme-court-moving-us-backward-or-back-toward-fe‌deralism/ [https://perma.cc/NNW4-FCZ6]; see also Timothy M. Harris, Backwards Federalism: The Withering Importance of State Property Law in Modern Takings Jurisprudence, 75 Rutgers U. L. Rev. 571, 572–73, 601–06 (2023) (citing Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), and West Virginia v. EPA, 142 S. Ct. 2587 (2022), as recent decisions demonstrating that the Court, overall, is elevating federalism concerns over issues such as abortion rights and climate change). ↑
  7.  See United States v. Bajakajian, 524 U.S. 321, 336–37 (1998). ↑
  8.  See id. The Eighth Amendment provides in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. ↑
  9.  See infra Section II.A. ↑
  10.  See infra Section II.B. ↑
  11.  U.S. Const. amend. V. ↑
  12.  See Austin v. United States, 509 U.S. 602, 610 (1993); U.S. Const. amend. VIII. ↑
  13.  See infra Sections II.B, III.A. I use the term “self-interest” throughout to refer to government action for the purpose of acquiring funds and other resources to fund the workings of government itself or to use for a public project. Cf. United States v. Winstar Corp., 518 U.S. 839, 896 (1996) (“[W]hen we speak of governmental ‘self-interest,’ we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties.”). I distinguish this from government action that resolves disputes between private parties or that costs the government money. Although the funds or other property acquired will ultimately serve the public interest when used for public services or projects, the risk of government overreach is heightened when it seeks to expand its resources. See infra Subsection III.C.1. ↑
  14.  See Lee Anne Fennell, Escape Room: Implicit Takings After Cedar Point Nursery, 17 Duke J. Const. L. & Pub. Pol’y 1, 49–50 (2022) (noting that exactions receive “high scrutiny” and are reviewed under standards “far beyond the usual standard for social and economic legislation”). ↑
  15.  See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 599, 612 (2013). ↑
  16.  See infra Paragraph III.B.2.i; Subsection III.C.1. ↑
  17.  See infra Subsection III.B.2. ↑
  18.  Outside of the excessive fines context, scholars have argued that the Court should adopt an inquiry similar to the exactions inquiry to determine whether the public use requirement of the Takings Clause is satisfied with respect to a particular exercise of the power of eminent domain. See Brief for David L. Callies et al. as Amici Curiae Supporting Petitioners at 22–25, Kelo v. City of New London, 545 U.S. 469 (2005) (No. 04-108). ↑
  19.  See, e.g., Ben Wieder, Shirsho Dasgupta & Sheridan Wall, Families Lose Homes After Florida Cities Turbocharge Code Enforcement Foreclosures, Mia. Herald (Sept. 2, 2024, 12:43 PM), https://www.miamiherald.com/news/business/real-estate-news/article273093600.‌html [https://perma.cc/FSZ9-K98C]. ↑
  20.  Federal criminal fines generally do not pose issues of self-interest, as most criminal fines are paid into the Crime Victim Fund. See 34 U.S.C. § 20101(b)(1). Federal forfeitures, however, do implicate issues of government self-interest, as they often function as revenue sources for both the federal government and, through equitable sharing programs, for state and local governments. See Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 15–17 (3d ed. 2020), https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf [https://perma‌.cc/JQ2H-YWS8]. ↑
  21.  See infra Section IV.A. ↑
  22.  144 S. Ct. 893, 902 (2024). ↑
  23.  For example, a 2023 investigation by the Miami Herald shows that Black-owned heirs’ property was recently the target of “ramped-up foreclosures over unpaid code fines in numerous cities across [Florida].” Amelia Winger, Heirs to Black-Owned Homes Face Ramped-Up Foreclosures. Here’s Who’s Pushing Back, Mia. Herald (Sept. 2, 2024, 7:50 AM), https://www.miamiherald.com/news/business/real-estate-news/article276644691.‌html [https://perma.cc/ZF46-GFK7]. ↑
  24.  Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2, 67 (2018) [hereinafter Colgan, Debtors’ Prison]. ↑
  25.  See Wieder et al., supra note 19; Jayati Ramakrishnan, Analysis Finds Property Owners in Portland’s Most Diverse, Gentrifying Areas Hardest Hit by Code Violation Fines, The Oregonian (Nov. 3, 2021, 6:00 AM), https://www.oregonlive.com/portland/2021/11/analysis-finds-property-own‌ers-in-portlands-most-diverse-gentrifying-areas-hardest-hit-by-code-vio‌lation-fines.html [https://perma.cc/9GDQ-7P6D]; Jaelynn Grisso, Code Violations Can Be Double-Edged Sword for Low-Income Residents, Matter News (June 4, 2021), https://matter‌news.org/comm‌unity/code-violations-can-be-double-edged-sword-for-low-income-residents/ [https://perma.‌cc/V87S-PD4X]; Eileen Zaffiro-Kean, Daytona Properties with Unpaid Fines Could Face Foreclosure, Daytona Beach News-J. (May 14, 2017, 3:13 PM), https://www.n‌ews-jour‌nalonline.com/story/business/real-estate/2017/05/14/daytona-properties-with-unpai‌d-fines-c‌ould-face-foreclosure/21045567007/ [https://perma.cc/VS7N-BUGH]. In some states this practice is very common. In the past eight years, one attorney has filed foreclosure lawsuits against more than 800 properties in nine Florida cities. Ben Wieder, Lawyer Once Helped Debt-Ridden Owners Hang on to Homes. Now He Helps Cities Take Them Away, Mia. Herald (Jan. 26, 2025, 6:35 AM), https://www.miamiherald.com/news/bus‌iness/real-est‌ate-news/arti‌cle273093630.html [https://perma.cc/7GP2-M8QP]. ↑

  26.  See infra Section IV.A. ↑

The Fearless Executive, Crime, and the Separation of Powers

­­Trump v. United States’s discovery of broad immunity has rendered the presidency more imperial and unaccountable. This Article tackles four questions. First, are the Constitution’s grants of specific and distinct privileges and immunities for federal officials illustrative of a broader, if implicit, set of privileges and immunities? Second, what limits, if any, does the Constitution impose on the power of Congress to criminalize the constitutional acts of the President, members of Congress, and the courts? Consider whether a federal judge can be prosecuted for her allegedly corrupt judicial judgment, one meant to satisfy a bribe previously received. Third, even if the Constitution grants immunity for constitutional acts, does it bestow any immunity for statutory acts? The Court held there was at least a presumptive immunity for presidents without pausing to discuss why the Constitution would implicitly immunize a branch’s exercise of statutory authority. Finally, when should we read a generic statute to cover the official acts of constitutional officers? Consider whether federal obstruction statutes should be construed to apply to judges and presidents as they exercise their constitutional powers over trials and prosecutions. As to the first question, the Constitution carefully conveys to each branch a unique and limited set of privileges. It is a mistake to read the Constitution as if it implicitly bestowed further shields. Instead, Congress may choose to bestow additional needful and appropriate safeguards to the three branches. Regarding the second question, Congress can criminalize the following sorts of acts: violations of the separation of powers, corrupt exercises of constitutional authority, and acts that transgress federal statutory law. Hence, a corrupt pardon or a corrupt judicial order can form the basis of a federal crime even though each might seem to be authorized by the Constitution. On the third matter, even if one thought the Constitution immunized certain exercises of constitutional powers, there is little reason to suppose it also immunizes the exercise of statutory powers by constitutional officers. On the final issue, we ought to disfavor reading generic criminal laws as if they apply to exercises of constitutional powers. We should be wary of supposing that Congress sought to police the constitutionally authorized acts of constitutional actors via general prohibitions that principally regulate ordinary persons.

Introduction

Commentators have long asserted that Donald Trump committed crimes in his first term.1 1.See, e.g., John Cassidy, The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice, New Yorker (Apr. 18, 2019), https://www.newyorker.com/news/our-column‌ists/the-mueller-report-couldnt-be-more-clear-donald-trump-repeatedly-tried-to-obstruct-just‌ice; Matt Ford, Did President Trump Obstruct Justice?, The Atlantic (May 16, 2017), https://www.theatlantic.com/politics/archive/2017/05/trump-comey-obstruction-justice/526‌9‌53; Ryan Goodman, Did Trump Obstruct Justice?, Politico Mag. (May 17, 2017), https://‌www.politico.com/magazine/story/2017/05/17/did-trump-obstruct-justice-215147 [https://pe‌rma.cc/S9V5-C9AL]; Samuel Estreicher & Christopher Owens, Did President Trump Commit the Federal Crime of Bribery?, Verdict (Dec. 3, 2019), https://verdict.justia.com/2019/12/03/‌did-president-trump-commit-the-federal-crime-of-bribery [https://perma.cc/‌CT3S-AG3T]; Bob Bauer, The Failures of the Mueller Report’s Campaign Finance Analysis, Just Sec. (May 3, 2019), https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campai‌gn-finance-analysis/ [https://perma.cc/T8SQ-2BKG].Show More After he left the Oval Office, three prosecutors2 2.Jack Smith was the prosecutor in both the Florida and Washington, D.C., cases; Fani Willis prosecuted the Fulton County, Georgia, case; and Alvin Bragg prosecuted the case in New York. Donald Trump’s Criminal Cases, in One Place, CNN (Jan. 10, 2025), https://www.cn‌n‌.com/interactive/2023/07/politics/trump-indictments-criminal-cases/ [https://perma.cc/CW‌75‌-L6N2]. Trump’s Georgia case is indefinitely paused while the state supreme court considers whether the prosecutor should be disqualified, and the President is currently appealing his New York criminal conviction. See Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025), https://www.ny‌ti‌mes.com/2025/01/08/us/trump-fani-willis-appeal-georgia.html; Jonah E. Bromwich, As Establishment Warms to Trump, Elite Law Firm Takes on His Appeal, N.Y. Times (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/nyregion/trump-criminal-convi‌ction-appeal.‌ht‌ml.Show More brought four prosecutions against him.3 3.Lawfare has helpfully compiled a page that links to all the documents in the Trump prosecutions. See The Trump Trials, Lawfare, https://www.lawfaremedia.org/current-project‌s/the-trump-trials [https://perma.cc/3CUL-QWUF] (last visited Oct. 27, 2024). Trump has been prosecuted in the Southern District of Florida; the District of Columbia; Fulton County, Georgia; and New York City. See, e.g., Indictment at 28, 34, 36–40, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023) [hereinafter Florida Indictment]; Indictment at 3, 43–45, United States v. Trump, No. 23-cr-00257 (D.D.C. Aug. 1, 2023) [hereinafter D.C. Indictment]; Indictment at 13, 74, 76–81, 86–88, 95–96, Georgia v. Trump, No. 23SC188947 (Ga. Super. Ct. Fulton Cnty. Aug. 14, 2023) [hereinafter Georgia Indictment]; Indictment at 1–14, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. Apr. 4, 2023) [hereinafter New York Indictment].Show More The New York prosecution relates to the supposed falsification of business records.4 4.New York Indictment, supra note 3, at 1–2.Show More The Florida prosecution, which was dropped after Trump won the 2024 election, alleged that Trump illegally retained and concealed federal records.5 5.Florida Indictment, supra note 3, at 2–4; see Alanna Durkin Richer, Eric Tucker & Chris Megerian, Special Counsel Moves to Abandon Election Interference and Classified Documents Cases Against Trump, AP News (Nov. 25, 2024, 5:56 PM), https://apnews.com/‌a‌rticle/trump-capitol-riot-justice-department-jack-smith-d6172cf98d8e03e099571c90826745‌6c [https://perma.cc/FDD5-XQWD].Show More The Georgia prosecution, which is indefinitely paused, and Washington, D.C. prosecution, also dropped after the 2024 election, rested on acts that occurred during Donald Trump’s first term.6 6.Georgia Indictment, supra note 3, at 14–19; D.C. Indictment, supra note 3, at 1–2; Hakim, supra note 2; Richer et al., supra note 5.Show More

These prosecutions foregrounded a vital separation of powers question that had yet to receive its due: When, if ever, may an apparently constitutionally authorized act form the actus reus of a criminal prosecution? For example, could the direction of Justice Department officials, conversations with a Vice President, and (supposedly) official tweets give rise to a prosecution and a guilty verdict?7 7.Trump v. United States, 144 S. Ct. 2312, 2324, 2339 (2024).Show More Could a military order to kill a rival result in jail time (or worse) for an ex-President?8 8.Id. at 2376 (Jackson, J., dissenting).Show More These are profound questions about the nature of our government.

In Trump v. United States, the Supreme Court supplied some answers.9 9.Id. at 2347 (majority opinion).Show More With the entire nation watching, the Court displayed little timidity. It held that the President had absolute immunity from prosecution for certain “core” constitutional actions and at least presumptive immunity for all other official acts, whether constitutional or statutory.10 10.Id.Show More Given the Court’s consistently broad conception of the President’s official acts,11 11.See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”).Show More on display again in Trump,12 12.Trump, 144 S. Ct. at 2329–30.Show More this was a bestowal of a capacious immunity. From the penumbras of Article II, the Court conjured up a vast aegis.

The breadth was intentional, for the Court sought to safeguard what it saw as a besieged presidency. Chief executives were meant to be “energetic,” “vigorous,” “bold,” “unhesitating,” and “fearless[],” said the Court.13 13.Id. at 2329 (quoting The Federalist No. 70, at 471–72 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961)); id. at 2331 (quoting Fitzgerald, 457 U.S. at 745); id. at 2346.Show More But if their bold actions triggered “routine[]” criminal cases, there would be an unremitting “pall of potential prosecution”14 14.Id. at 2331 (quoting McDonnell v. United States, 579 U.S. 550, 575 (2016)).Show More and beleaguered presidents would not execute their office “fearlessly and fairly.”15 15.Id.Show More The Framers “did not envision such counterproductive burdens on the” executive they wrought.16 16.Id.Show More Given what the Framers sought, the Court would not countenance routine prosecutions that “would dampen the ardor of all but the most resolute.”17 17.Id. at 2344 (quoting Fitzgerald, 457 U.S. at 753 n.32).Show More Further, immunity must be decided before trial to cut off “the possibility of an extended [and potentially unwarranted] proceeding,” for otherwise a President would be “unduly cautious.”18 18.Id. (quoting Fitzgerald, 457 U.S. at 752 n.32).Show More Hence within the Constitution, the Court belatedly discovered substantial bulwarks against criminal liability and prosecution.

The Court’s opinion approaches adjudication by adjectives. For older Americans, the plethora of heroic modifiers might recall Captain James T. Kirk, who “boldly” went “where no man has gone before” with the Starship Enterprise.19 19.See Andrew Delahunty & Sheila Dignen, A Dictionary of Reference and Allusion 52 (3d ed. 2012).Show More For a younger generation, maybe they summon in the mind’s eye a Katniss Everdeen.20 20.See Katniss Everdeen, Hunger Games Through the Ages Wiki, https://hungergamesthrou‌ghtheages.fandom.com/wiki/Katniss_Everdeen [https://perma.cc/9VY3-4RYM] (last visited Oct. 27, 2024) (claiming that Everdeen is “very strong and bold” and that “[s]he doesn’t take crap from anybody”).Show More Kirk and Everdeen were bold and energetic. Above all, they were fearless.

Somewhat ironically, the decision’s exaltation of a fearless President provoked great fear among three dissenting Justices21 21.See Trump, 142 S. Ct. at 2361 (Sotomayor, J., dissenting) (“Today’s Court . . . has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. . . . Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”); id. at 2368 (“The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of ‘conclusive and preclusive’ powers that the Court previously has recognized.”); see also id. at 2383 (Jackson, J., dissenting) (arguing that the Court has “senseless[ly]” assumed “risks” that “are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms”).Show More and, if one reads between the lines, more than a little trepidation in a concurring Justice.22 22.Id. at 2352 (Barrett, J., concurring in part) (“Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. I would have answered it now.” (citation omitted)).Show More The decision has had repercussions for the ongoing prosecutions.23 23.For instance, the defense has cited the Supreme Court’s opinion as a basis for throwing out the verdict in the New York case. See President Donald J. Trump’s Post-Trial Presidential Immunity Motion at 1, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. July 10, 2024).Show More Beyond courtrooms, the decision has provoked alarm,24 24.See, e.g., Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2, 2024), https://www.theatlantic.com/politics/archive/2024/07/trump-v-un‌ited-states-opinion-chief-roberts/678877/ (arguing that the Court’s opinion “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit”).Show More especially because immunity might embolden future presidents to act lawlessly.25 25.See, e.g., David Cole & Brett Max Kaufman, Supreme Court Grants Trump, Future Presidents a Blank Check to Break the Law, ACLU (July 3, 2024), https://www.aclu.org/news/‌civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law [https://perma.cc/PVX2-PXMZ]; Joshua Barajas & Erica R. Hendry, What Does the Supreme Court Immunity Ruling Mean for Trump? 6 Questions Answered, PBS (July 1, 2024, 5:01 PM), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean‌-for-trump-6-questions-answered [https://perma.cc/6R2Y-PUJ6]; Nia Prater, Did the Supreme Court Kill Every Case Against Trump?, N.Y. Mag. (July 8, 2024), https://nymag.‌co‌m/intelligencer/article/did-the-supreme-court-kill-every-case-against-trump.html [https://per‌ma.cc/XE49-7C6D]; Michael Waldman, The Supreme Court Gives the President the Power of a King, Brennan Ctr. for Just. (July 1, 2024), https://www.brennanc‌enter.org‌/our-work/ana‌lysis-opinion/supreme-court-gives-president-power-king [https://perma.cc/5N‌SL-CY3B]; Lawrence Hurley, ‘Five Alarm Fire’: Supreme Court Immunity Ruling Raises Fears About Future Lawless Presidents, NBC News (July 1, 2024, 4:57 PM), https://www.nbcnews.com/p‌olitics/supreme-court/supreme-court-immunity-ruling-raises-fears-future-lawless‌-presidents-rcna159827 [https://perma.cc/2UCV-BBZ5].Show More

The adulation, the fury, and the fear that Donald Trump evokes often pervert our judgment and “the better angels of our nature.”26 26.Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Political Writings and Speeches 115, 123 (Terence Ball ed., 2013).Show More Nonetheless, this is an opportune moment to consider the question of presidential immunity, as it will arise again in the future. Though it might seem as if the Court has said all that needs to be said, occasionally the Court announces a test and makes a course correction, as it recently did in Rahimi.27 27.Compare N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131 (2022) (“The test that we . . . apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”), with United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”).Show More Infrequently, it quickly reverses itself.28 28.E.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), overruled by W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).Show More

As we contemplate these matters, we should consider the other branches. Do their officials also have immunity for their official acts to foster energy, vigor, and boldness? One might wonder whether federal judges have (or should have) criminal immunity for their official acts, say, a judgment alleged to be corrupt. Representatives and Senators might claim official immunity for allegedly crooked discussions with constituents or supposedly corrupt votes on the floor. It might seem obvious that the Court’s opinion applies only to the President. But in the Nixon tapes case, the Court said that all three branches have an evidentiary privilege rooted in the separation of powers.29 29.United States v. Nixon, 418 U.S. 683, 705–06 (1974) (“Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” (footnote omitted)).Show More If the separation of powers creates prosecutorial immunity for presidents, as the Court signaled in Trump,30 30.Trump v. United States, 144 S. Ct. 2312, 2331 (2024) (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”).Show More perhaps that immunity extends to the other branches.

In thinking about these questions, the Court focused on “core constitutional powers” versus “official acts,” a distinction that the Constitution never draws and that is elusive.31 31.Id. at 2327. Every constitutional officer engages in at least two sorts of acts, official and personal, with the latter unrelated to the constitutional office. Though there are many Supreme Court cases discussing “official acts,” the dividing line between the two is not always apparent. For instance, is an officer heading to her office engaged in official acts or personal acts? This Article does not attempt to answer such questions, for even as the categories are uncertain, existing doctrine requires some such division. See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (discovering presidential immunity from damages suits for official acts that extend to the “outer perimeter” of presidential responsibilities); Clinton v. Jones, 520 U.S. 681, 692 (1997) (explaining that immunity from damages actions did not extend to suits seeking damages out of President’s personal, private conduct).Furthermore, within the category of official acts, there are at least two subcategories: constitutional acts and statutory acts. Constitutional acts encompass actions grounded in constitutional grants of power, such as the act of vetoing a bill or pardoning a felon. Statutory acts consist of actions that trace back to ordinary federal statutes, such as granting a patent pursuant to a law.Any constitutional immunity from criminal liability attaches only to the presidency’s constitutional powers. Hence the constitutional immunity will broaden (or narrow) depending upon the scope of the presidency’s constitutional powers, the extent of which is much contested.Show More Further, it spoke of “immunity” and never properly considered whether the supposed immunity could be overcome or defeased. In particular, the Court failed to address the scope of Congress’s powers, instead choosing to focus on the presidency and its needs. Most tellingly, the Court never cited the Necessary and Proper Clause or any other Article I authority. But in a case about the separation of powers, the scope of congressional powers ought to matter.

A more profitable approach is to consider four questions, each of which considers all three branches. First, are the Constitution’s conspicuous grants of narrow privileges and immunities illustrative of a broader, if implicit, set of privileges and immunities? Second, what limits, if any, does the Constitution impose on Congress’s ability to criminalize constitutional acts, by the President or otherwise? By “constitutional acts,” I mean acts that are apparently constitutionally authorized, as opposed to statutorily authorized. Third, should we read the Constitution as granting an implicit immunity for the statutorily authorized acts of constitutional actors? Lastly, when should we read generic criminal law as applying to the official acts of constitutional actors, for example, judges, presidents, and senators?

The Constitution’s text, structure, and early history suggest a different set of conclusions than the ones the Court settled upon. First, save for a guaranteed salary, the presidency has no other privileges or immunities. The other branches likewise have their limited and enumerated privileges and immunities. If there are to be additional safeguards, Congress must create them via the Necessary and Proper Clause.32 32.Ian Ayres and I have encouraged Congress to adopt one novel structural protection: the Prosecutor Jury. Our innovation would have Congress enact a law that when prosecutors, state or federal, wish to prosecute certain high-level officials or candidates for high-level offices, they must secure the consent of a jury composed of former U.S. Attorneys. The Prosecutor Jury would be a bipartisan, balanced panel of ten U.S. Attorneys appointed by Democratic Presidents and ten U.S. Attorneys appointed by Republican Presidents. If two-thirds agree, i.e., fourteen, then the prosecution can go forward. If fewer sanction the prosecution, the case cannot go to trial. This filtration mechanism is meant to counter the perception, and the reality, that prosecutors might prosecute political rivals for selfish or partisan reasons. If a prosecutor bent on prosecuting a cabinet secretary or a federal judge can get at least four individuals associated with the opposition party to approve a prosecution, the public will be able to conclude that the prosecution has some merit and perhaps does not involve the misuse of prosecutorial resources in the pursuit of partisan or personal ends. For a comprehensive discussion of this proposal, see generally Ian Ayres & Saikrishna Bangalore Prakash, A Bipartisan Approach to Political Prosecutions, 16 J. Legal Analysis 140 (2024). Our proposal has the distinct advantage that it allows Congress to flexibly expand or narrow protections as circumstances warrant.Show More Sometimes exceptionally necessary, proper, and indispensable means—like funds, departments, officers, and buildings—are left to the judgment of Congress. That is no less true for official immunity, including presidential immunity from prosecution. Second, any other constitutional protections for the three branches arise from the absence of congressional power to criminalize certain acts. This is not an “immunity”—an exemption from the law—as much as the dearth of legislative power. Just as Congress could not make it a crime for a citizen to vote, it may not make it a crime for a President to veto a bill. And yet even though Congress cannot criminally sanction the mere exercise of a constitutional power, it may criminalize the corrupt or wrongful exercise of powers. The Necessary and Proper Clause, which authorizes Congress to criminalize bribery, treason, and other forms of corruption, also permits Congress to protect the separation of powers.33 33.For a brief discussion of Congress’s authority as it relates to the separation of powers, see Saikrishna Bangalore Prakash, Congress as Elephant, 104 Va. L. Rev. 797, 826–31 (2018).Show More For example, a President who issues a pardon to aid an enemy could be prosecuted for treason, or so I argue. Third, despite what the Court says, the Constitution does not confer any immunity for presidential acts authorized by statute. There is no reason to think that the Constitution dictates that, when Congress grants authority to a constitutional actor, criminal immunity must accompany the statutory grant. Fourth, whatever one thinks of the above arguments, there are reasons to reject the notion that in enacting generic criminal laws, Congress meant to criminalize the official acts of constitutional actors, including the President. The Court ignored this basic question of statutory interpretation.

In sum, my framework is one of (1) narrow constitutional protections for constitutional officers, (2) significant congressional power to grant additional privileges or immunities, (3) meaningful legislative power to sanction wrongful constitutional acts, (4) no constitutional immunity for grants of statutory authority, and (5) a reluctance to read generic statutes as if they regulated the official acts of constitutional officers.

Part I briefly discusses and criticizes Trump v. United States. The Court’s treatment was unavoidably rushed. This hasty posture made the majority opinion ill-considered in several respects, failing as it does to grapple with difficult questions of first impression.

Part II considers the Court’s case for an executive immunity from prosecution. The Court’s arguments from the Founding, constitutional structure, and case law are unpersuasive. Indeed, many of these considerations cut against the Court’s discovery of immunity.

Part III argues that presidents have a narrow protection from federal statutes that criminalize uses of the Executive’s constitutional powers. This protection arises because of the absence of legislative power to punish mere uses of executive powers. And yet, Congress retains considerable power to protect the Constitution. Via the Necessary and Proper Clause, Congress can (a) criminalize corrupt exercises of presidential, legislative, and judicial power; (b) penalize executive violations of the separation of powers, and (c) punish the desecration and flouting of congressional laws. Hence, while Congress cannot make it a crime to “grant a pardon,” a law more narrowly targeted at the “grant of corrupt pardons” would be necessary and proper to implement the Constitution.

Part IV considers the question of statutory acts. The Constitution does not provide that when Congress grants authority to a constitutional actor, that conferral comes with implied immunity. To hold that the Constitution dictates that every grant of statutory authority must come freighted with some immunity from prosecution is a bridge too far.

Part V shifts to statutory interpretation, arguing that prosecutors and courts should be loath to read generic criminal statutes as if they applied to constitutional acts. Legislators fashion generally applicable criminal laws with the public in mind, not presidents, members of Congress, and judges. This focus ought to matter in discerning the reach of such laws. Relatedly, it seems unlikely that legislators would impinge upon presidential or judicial action via generic criminal laws because it is doubtful that they would hide an elephant—regulation of a President’s or judge’s official acts—in a mousehole of a generic criminal law.34 34.Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (explaining that respondents could not prevail given their failure to show a clear “textual commitment of authority to the EPA,” since Congress does not “hide elephants in mouseholes”).Show More Finally, we have good reason to eschew reading such laws as if they applied to constitutional deeds because doing so raises difficult constitutional questions.

Although the Article’s focus is on crime, the conclusions apply to non-penal measures. If I am right that Congress can attach criminal sanctions to a judge’s official, but corrupt, acts, it can impose lesser burdens, like civil fines. The same logic would apply to legislators and presidents.

Several caveats are necessary. This Article is not about Donald Trump. Hence, it will not address whether he committed any crimes. It focuses on constitutional explication, addressing knotty issues that show no signs of going away. Indeed, they have always been with us, lurking in the background. Nor will this Article address whether sitting presidents may be prosecuted.35 35.For an argument that a sitting President can be prosecuted, see Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 60 (2021) [hereinafter Prakash, Prosecuting and Punishing Our Presidents] (arguing that a sitting President may be “arrested, indicted, prosecuted, and punished”). The Trump Court cited the Department of Justice’s conclusion that a sitting President could not be prosecuted. See Trump, 144 S. Ct. at 2332 n.2 (citing Brief for United States at 9, Trump, 144 S. Ct. 2312 (No. 23-939)). Given the Court’s stance toward immunity, it seems quite likely that it would agree with the Department of Justice about prosecuting a sitting president.Show More As this Article goes to print, the question of temporary immunity for sitting chief executives may become a live issue. Trump’s reascension to the presidency raises the prospect that state prosecutors may attempt to continue their prosecutions. Finally, this Article is but a part of a vital, long overdue conversation,36 36.I have participated in this and adjacent conversations. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145 (1999); Saikrishna Bangalore Prakash, “Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities, 2020 Sup. Ct. Rev. 229, 232; Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 60. The principal Trump dissent cited the latter article. See Trump, 144 S. Ct. at 2358 (Sotomayor, J., dissenting) (citing Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 69).Show More one that the Court helped further and one where the Court may yet change its mind. Or so I hope.

  1.  See, e.g., John Cassidy, The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice, New Yorker (Apr. 18, 2019), https://www.newyorker.com/news/our-column‌ists/the-mueller-report-couldnt-be-more-clear-donald-trump-repeatedly-tried-to-obstruct-just‌ice; Matt Ford, Did President Trump Obstruct Justice?, The Atlantic (May 16, 2017), https://www.theatlantic.com/politics/archive/2017/05/trump-comey-obstruction-justice/526‌9‌53; Ryan Goodman, Did Trump Obstruct Justice?, Politico Mag. (May 17, 2017), https://‌www.politico.com/magazine/story/2017/05/17/did-trump-obstruct-justice-215147 [https://pe‌rma.cc/S9V5-C9AL]; Samuel Estreicher & Christopher Owens, Did President Trump Commit the Federal Crime of Bribery?, Verdict (Dec. 3, 2019), https://verdict.justia.com/2019/12/03/‌did-president-trump-commit-the-federal-crime-of-bribery [https://perma.cc/‌CT3S-AG3T]; Bob Bauer, The Failures of the Mueller Report’s Campaign Finance Analysis, Just Sec. (May 3, 2019), https://www.justsecurity.org/63920/the-failures-of-the-mueller-report-campai‌gn-finance-analysis/ [https://perma.cc/T8SQ-2BKG]. ↑
  2.  Jack Smith was the prosecutor in both the Florida and Washington, D.C., cases; Fani Willis prosecuted the Fulton County, Georgia, case; and Alvin Bragg prosecuted the case in New York. Donald Trump’s Criminal Cases, in One Place, CNN (Jan. 10, 2025), https://www.cn‌n‌.com/interactive/2023/07/politics/trump-indictments-criminal-cases/ [https://perma.cc/CW‌75‌-L6N2]. Trump’s Georgia case is indefinitely paused while the state supreme court considers whether the prosecutor should be disqualified, and the President is currently appealing his New York criminal conviction. See Danny Hakim, Atlanta D.A. Asks Georgia Court to Review Decision Kicking Her Off Trump Case, N.Y. Times (Jan. 8, 2025), https://www.ny‌ti‌mes.com/2025/01/08/us/trump-fani-willis-appeal-georgia.html; Jonah E. Bromwich, As Establishment Warms to Trump, Elite Law Firm Takes on His Appeal, N.Y. Times (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/nyregion/trump-criminal-convi‌ction-appeal.‌ht‌ml. ↑
  3.  Lawfare has helpfully compiled a page that links to all the documents in the Trump prosecutions. See The Trump Trials, Lawfare, https://www.lawfaremedia.org/current-project‌s/the-trump-trials [https://perma.cc/3CUL-QWUF] (last visited Oct. 27, 2024). Trump has been prosecuted in the Southern District of Florida; the District of Columbia; Fulton County, Georgia; and New York City. See, e.g., Indictment at 28, 34, 36–40, United States v. Trump, No. 23-cr-80101 (S.D. Fla. June 8, 2023) [hereinafter Florida Indictment]; Indictment at 3, 43–45, United States v. Trump, No. 23-cr-00257 (D.D.C. Aug. 1, 2023) [hereinafter D.C. Indictment]; Indictment at 13, 74, 76–81, 86–88, 95–96, Georgia v. Trump, No. 23SC188947 (Ga. Super. Ct. Fulton Cnty. Aug. 14, 2023) [hereinafter Georgia Indictment]; Indictment at 1–14, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. Apr. 4, 2023) [hereinafter New York Indictment]. ↑
  4.  New York Indictment, supra note 3, at 1–2. ↑
  5.  Florida Indictment, supra note 3, at 2–4; see Alanna Durkin Richer, Eric Tucker & Chris Megerian, Special Counsel Moves to Abandon Election Interference and Classified Documents Cases Against Trump, AP News (Nov. 25, 2024, 5:56 PM), https://apnews.com/‌a‌rticle/trump-capitol-riot-justice-department-jack-smith-d6172cf98d8e03e099571c90826745‌6c [https://perma.cc/FDD5-XQWD]. ↑
  6.  Georgia Indictment, supra note 3, at 14–19; D.C. Indictment, supra note 3, at 1–2; Hakim, supra note 2; Richer et al., supra note 5. ↑
  7.  Trump v. United States, 144 S. Ct. 2312, 2324, 2339 (2024). ↑
  8.  Id. at 2376 (Jackson, J., dissenting). ↑
  9.  Id. at 2347 (majority opinion). ↑
  10.  Id. ↑
  11.  See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”). ↑
  12.  Trump, 144 S. Ct. at 2329–30. ↑
  13.  Id. at 2329 (quoting The Federalist No. 70, at 471–72 (Alexander Hamilton) (Jacob Ernest Cooke ed., 1961)); id. at 2331 (quoting Fitzgerald, 457 U.S. at 745); id. at 2346. ↑
  14.  Id. at 2331 (quoting McDonnell v. United States, 579 U.S. 550, 575 (2016)). ↑
  15.  Id. ↑
  16.  Id. ↑
  17.  Id. at 2344 (quoting Fitzgerald, 457 U.S. at 753 n.32). ↑
  18.  Id. (quoting Fitzgerald, 457 U.S. at 752 n.32). ↑
  19.  See Andrew Delahunty & Sheila Dignen, A Dictionary of Reference and Allusion 52 (3d ed. 2012). ↑
  20.  See Katniss Everdeen, Hunger Games Through the Ages Wiki, https://hungergamesthrou‌ghtheages.fandom.com/wiki/Katniss_Everdeen [https://perma.cc/9VY3-4RYM] (last visited Oct. 27, 2024) (claiming that Everdeen is “very strong and bold” and that “[s]he doesn’t take crap from anybody”). ↑
  21.  See Trump, 142 S. Ct. at 2361 (Sotomayor, J., dissenting) (“Today’s Court . . . has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts. . . . Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”); id. at 2368 (“The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of ‘conclusive and preclusive’ powers that the Court previously has recognized.”); see also id. at 2383 (Jackson, J., dissenting) (arguing that the Court has “senseless[ly]” assumed “risks” that “are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms”). ↑
  22.  Id. at 2352 (Barrett, J., concurring in part) (“Properly conceived, the President’s constitutional protection from prosecution is narrow. The Court leaves open the possibility that the Constitution forbids prosecuting the President for any official conduct, instructing the lower courts to address that question in the first instance. I would have answered it now.” (citation omitted)). ↑
  23.  For instance, the defense has cited the Supreme Court’s opinion as a basis for throwing out the verdict in the New York case. See President Donald J. Trump’s Post-Trial Presidential Immunity Motion at 1, New York v. Trump, No. 71543/2023 (N.Y. Sup. Ct. July 10, 2024). ↑
  24.  See, e.g., Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic (July 2, 2024), https://www.theatlantic.com/politics/archive/2024/07/trump-v-un‌ited-states-opinion-chief-roberts/678877/ (arguing that the Court’s opinion “turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit”). ↑
  25.  See, e.g., David Cole & Brett Max Kaufman, Supreme Court Grants Trump, Future Presidents a Blank Check to Break the Law, ACLU (July 3, 2024), https://www.aclu.org/news/‌civil-liberties/supreme-court-grants-trump-future-presidents-a-blank-check-to-break-the-law [https://perma.cc/PVX2-PXMZ]; Joshua Barajas & Erica R. Hendry, What Does the Supreme Court Immunity Ruling Mean for Trump? 6 Questions Answered, PBS (July 1, 2024, 5:01 PM), https://www.pbs.org/newshour/politics/what-does-the-supreme-court-ruling-mean‌-for-trump-6-questions-answered [https://perma.cc/6R2Y-PUJ6]; Nia Prater, Did the Supreme Court Kill Every Case Against Trump?, N.Y. Mag. (July 8, 2024), https://nymag.‌co‌m/intelligencer/article/did-the-supreme-court-kill-every-case-against-trump.html [https://per‌ma.cc/XE49-7C6D]; Michael Waldman, The Supreme Court Gives the President the Power of a King, Brennan Ctr. for Just. (July 1, 2024), https://www.brennanc‌enter.org‌/our-work/ana‌lysis-opinion/supreme-court-gives-president-power-king [https://perma.cc/5N‌SL-CY3B]; Lawrence Hurley, ‘Five Alarm Fire’: Supreme Court Immunity Ruling Raises Fears About Future Lawless Presidents, NBC News (July 1, 2024, 4:57 PM), https://www.nbcnews.com/p‌olitics/supreme-court/supreme-court-immunity-ruling-raises-fears-future-lawless‌-presidents-rcna159827 [https://perma.cc/2UCV-BBZ5]. ↑
  26.  Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Abraham Lincoln: Political Writings and Speeches 115, 123 (Terence Ball ed., 2013). ↑
  27.  Compare N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131 (2022) (“The test that we . . . apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”), with United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”). ↑
  28.  E.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), overruled by W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). ↑
  29.  United States v. Nixon, 418 U.S. 683, 705–06 (1974) (“Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.” (footnote omitted)). ↑
  30.  Trump v. United States, 144 S. Ct. 2312, 2331 (2024) (“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”). ↑
  31.  Id. at 2327. Every constitutional officer engages in at least two sorts of acts, official and personal, with the latter unrelated to the constitutional office. Though there are many Supreme Court cases discussing “official acts,” the dividing line between the two is not always apparent. For instance, is an officer heading to her office engaged in official acts or personal acts? This Article does not attempt to answer such questions, for even as the categories are uncertain, existing doctrine requires some such division. See Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (discovering presidential immunity from damages suits for official acts that extend to the “outer perimeter” of presidential responsibilities); Clinton v. Jones, 520 U.S. 681, 692 (1997) (explaining that immunity from damages actions did not extend to suits seeking damages out of President’s personal, private conduct).

    Furthermore, within the category of official acts, there are at least two subcategories: constitutional acts and statutory acts. Constitutional acts encompass actions grounded in constitutional grants of power, such as the act of vetoing a bill or pardoning a felon. Statutory acts consist of actions that trace back to ordinary federal statutes, such as granting a patent pursuant to a law.

    Any constitutional immunity from criminal liability attaches only to the presidency’s constitutional powers. Hence the constitutional immunity will broaden (or narrow) depending upon the scope of the presidency’s constitutional powers, the extent of which is much contested. ↑

  32.  Ian Ayres and I have encouraged Congress to adopt one novel structural protection: the Prosecutor Jury. Our innovation would have Congress enact a law that when prosecutors, state or federal, wish to prosecute certain high-level officials or candidates for high-level offices, they must secure the consent of a jury composed of former U.S. Attorneys. The Prosecutor Jury would be a bipartisan, balanced panel of ten U.S. Attorneys appointed by Democratic Presidents and ten U.S. Attorneys appointed by Republican Presidents. If two-thirds agree, i.e., fourteen, then the prosecution can go forward. If fewer sanction the prosecution, the case cannot go to trial. This filtration mechanism is meant to counter the perception, and the reality, that prosecutors might prosecute political rivals for selfish or partisan reasons. If a prosecutor bent on prosecuting a cabinet secretary or a federal judge can get at least four individuals associated with the opposition party to approve a prosecution, the public will be able to conclude that the prosecution has some merit and perhaps does not involve the misuse of prosecutorial resources in the pursuit of partisan or personal ends. For a comprehensive discussion of this proposal, see generally Ian Ayres & Saikrishna Bangalore Prakash, A Bipartisan Approach to Political Prosecutions, 16 J. Legal Analysis 140 (2024). Our proposal has the distinct advantage that it allows Congress to flexibly expand or narrow protections as circumstances warrant. ↑
  33.  For a brief discussion of Congress’s authority as it relates to the separation of powers, see Saikrishna Bangalore Prakash, Congress as Elephant, 104 Va. L. Rev. 797, 826–31 (2018). ↑
  34.  Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (explaining that respondents could not prevail given their failure to show a clear “textual commitment of authority to the EPA,” since Congress does not “hide elephants in mouseholes”). ↑
  35.  For an argument that a sitting President can be prosecuted, see Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 60 (2021) [hereinafter Prakash, Prosecuting and Punishing Our Presidents] (arguing that a sitting President may be “arrested, indicted, prosecuted, and punished”). The Trump Court cited the Department of Justice’s conclusion that a sitting President could not be prosecuted. See Trump, 144 S. Ct. at 2332 n.2 (citing Brief for United States at 9, Trump, 144 S. Ct. 2312 (No. 23-939)). Given the Court’s stance toward immunity, it seems quite likely that it would agree with the Department of Justice about prosecuting a sitting president. ↑

  36.  I have participated in this and adjacent conversations. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 Minn. L. Rev. 1143, 1145 (1999); Saikrishna Bangalore Prakash, “Not a Single Privilege Is Annexed to His Character”: Necessary and Proper Executive Privileges and Immunities, 2020 Sup. Ct. Rev. 229, 232; Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 60. The principal Trump dissent cited the latter article. See Trump, 144 S. Ct. at 2358 (Sotomayor, J., dissenting) (citing Prakash, Prosecuting and Punishing Our Presidents, supra note 35, at 69). ↑

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