Issue 1

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). ↑

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win.

The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson’s favorable-termination rule.

What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are “just right”? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life.

Introduction

How do you define a right if you aren’t sure it exists? The right to be free from malicious prosecution has remained elusive despite decades of judicial and scholarly attention. Some still debate whether it even exists, and many more argue that it should not. The constitutional malicious-prosecution claim often brought under Section 1983 is something of an enigma—despite the name, the claims generally are not brought against prosecutors, and they rarely involve malice in an ordinary sense. Rather, they are part of the family of constitutional torts aimed at addressing police misconduct—here, for initiating criminal prosecutions without probable cause.

These lawsuits serve two critical roles. First, they provide redress for the harms uniquely associated with enduring a criminal prosecution, namely, being deprived of rights “to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.”1 1.Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).Show More And second, because malicious-prosecution claims are not ripe until favorable termination—which occurs when a prosecution ends without a conviction2 2.Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).Show More—they may extend the timeframe to bring civil-rights suits. Because companion constitutional torts generally accrue much earlier,3 3.If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).Show More malicious-prosecution suits give a person more time to vindicate at least some of their rights.4 4.Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).Show More

But regardless of how important they are in theory, in practice, these suits rarely succeed. Despite significant debate over the proper constitutional home of malicious prosecution,5 5.See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).Show More there is little clarity on its practicalities: after thirty years of effort, an “embarrassing diversity of judicial opinion” remains.6 6.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).Show More In Albright v. Oliver,7 7.510 U.S. 266 (1994) (plurality opinion).Show More and again nearly twenty-five years later in Manuel v. City of Joliet,8 8.580 U.S. 357 (2017).Show More the U.S. Supreme Court made its first error: by focusing only on whether malicious prosecution is properly housed in the Fourth or Fourteenth Amendment, the Court twice missed its chance to intervene in any practical sense. Both decisions had shockingly little real-world impact.9 9.See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).Show More But two years ago, in Thompson v. Clark,10 10.142 S. Ct. 1332 (2022).Show More the Court made a new kind of error: by failing to address the most important problems in Section 1983 malicious-prosecution litigation, the Court issued an ostensibly good decision that, as this Note discovers, also failed to make much of a difference.11 11.See infra Section II.C.Show More At each turn, the Court has failed to identify the sources of malicious prosecution’s challenges and thus has failed to provide solutions tailored to those core problems. This Note fills that gap.

By exploring for the first time how the U.S. Courts of Appeals have responded to Thompson, this Note identifies two primary issues. First, in the wake of Thompson, the high-level disagreement that Judge Posner called “embarrassing”12 12.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).Show More endures.13 13.See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.Show More Here, “[v]aried interpretation of federal constitutional law raises . . . troubling[] questions,” and nonuniformity has had tangible consequences.14 14.See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).Show More The details of these claims diverge wildly depending on the circuit, and even within circuits, so plaintiffs—many of whom are not represented by counsel15 15.See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).Show More—have little chance of figuring it out. Specifically, there is significant disagreement on the two usual elements of a Section 1983 malicious-prosecution claim that most often prove fatal: probable cause and malice. The initiation of criminal charges without probable cause is the “gravamen” of malicious prosecution,16 16.Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).Show More but there is little clarity on what probable cause is relevant.17 17.There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.Show More Because malicious-prosecution defendants are typically police officers or investigators, and not those directly responsible for decisions to prosecute,18 18.SeeImbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).Show More it can be hard to parse whose decisions—and which of those decisions—matter. Lack of malice, while not always even an element of malicious prosecution, can serve as a nearly insurmountable barrier to plaintiffs.

Second, because the Court has never directly considered what the “seizure” in a malicious prosecution is, some lower courts have artificially narrowed Section 1983 malicious-prosecution claims to encompass only suits where the plaintiff was detained. This misunderstands the harm of a malicious prosecution and closes courthouse doors to individuals whose constitutional rights have been violated. Although we more often think of trans-substantive doctrines like qualified immunity as limitations on the availability of damages remedies, here we see remedial access limited through a restrictive framing of the substantive right itself.19 19.See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).Show More

Answering these questions the right way could produce the result the Court’s repeated efforts would suggest it desires—a settled doctrinal framework for malicious-prosecution claims brought under Section 1983. And more importantly, clarifying the scope of malicious-prosecution claims should cure the notice issues and inconsistencies that make them harder to win than they should be. Maybe the fourth time could be the charm?

This Note explores these questions through three Parts. Part I will discuss the Court’s historical efforts to determine where a right to be free from malicious prosecution is located in the Constitution, a project that failed to yield doctrinal stability. Part II will provide the first postmortem of Thompson—a case that, promisingly, addressed a narrow, technical aspect of Section 1983 litigation—and explore its (limited) impacts on the lower courts. Part III will answer the questions at the root of Section 1983 malicious prosecution’s problems—those identified in Part II. This Note thus has two primary contributions: first, it provides a descriptive account of the lower courts after Thompson, which both makes evident the Court’s failure in problem identification and identifies the right problems to address next; and second, through answering the questions left open after Thompson, it provides the first account of malicious prosecution that solves the meaningful practical problems that have, until now, gone unaddressed. The goal of this Note is simple: to make Section 1983 malicious-prosecution suits work.

  1.  Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting). ↑
  2.  Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022). ↑
  3.  If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination). ↑
  4.  Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months). ↑
  5.  See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”). ↑
  6.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.). ↑
  7.  510 U.S. 266 (1994) (plurality opinion). ↑
  8.  580 U.S. 357 (2017). ↑
  9.  See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel). ↑
  10.  142 S. Ct. 1332 (2022). ↑
  11.  See infra Section II.C. ↑
  12.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992). ↑
  13.  See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim. ↑
  14.  See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake). ↑
  15.  See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases). ↑
  16.  Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). ↑
  17.  There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280. ↑
  18.  See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits). ↑

  19.  See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”). ↑

Ordinary Meaning and Plain Meaning

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally.

Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way.

This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

Introduction

Today, the two most fundamental doctrines of statutory interpretation are the ordinary meaning canon and the plain meaning rule. The ordinary meaning canon: assume statutory terms bear their “ordinary meaning” unless the context indicates otherwise.1 1.E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”).Show More The canon is regularly described as “the [m]ost [f]undamental [p]rinciple of [l]egal [i]nterpretation,”2 2.Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”).Show More and the Supreme Court has long treated it as an “axiom.”3 3.E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975).Show More The plain meaning rule: if the statutory text’s meaning is “plain” (as in clear), then a court must enforce that meaning regardless of other considerations.4 4.E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))).Show More The Supreme Court has deemed it the “cardinal” rule of statutory interpretation that comes “before all others.”5 5.Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992).Show More

Neither doctrine is textualism,6 6.Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 420 (2005) (“[T]extualism does not admit of a simple definition.”).Show More but their prominence has skyrocketed with textualism’s ascendancy.7 7.See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s).Show More The ordinary meaning canon is an old practice with supporting aphorisms from Blackstone, Marshall, and Holmes,8 8.See1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”).Show More and it “straddles judicial philosophies.”9 9.Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”).Show More But the canon is particularly important to textualists.10 10.See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev. 855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”).Show More Thus, courts invoke “ordinary meaning” today three times as often as they did half a century ago,11 11.Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev. 213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”).Show More before the rise of “the new textualism.”12 12.SeeWilliam N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”).Show More As for the plain meaning rule, it was not always in favor,13 13.In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).Show More and Judge Wald even wrote its obituary in the early 1980s.14 14.SeePatricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 197–98 (1983); cf.Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”).Show More But the plain meaning rule is textualism’s “bedrock principle,”15 15.Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 164 (2010); see alsoJohn F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”).Show More and the Supreme Court now invokes the plain meaning of text more than any other interpretive tool save for precedent.16 16.Cf.Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms).Show More Thus, when Justice Kagan said “we’re all textualists now,”17 17.Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS].Show More presumably she meant at least this: the text has primacy over other considerations and therefore controls if what it says is plain.18 18.Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023).Show More

Yet despite how fundamental ordinary meaning and plain meaning are to our “law of interpretation,”19 19.William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation).Show More their relationship can become confused in practice. Courts, litigants, and commentators use the terms interchangeably20 20.See sources cited infra notes 310–11.Show More because “plain” can also be a synonym for “ordinary” (as in plain vanilla).21 21.William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 545 (2017). The wonderful “plain vanilla” example is theirs.Show More And courts conflate them doctrinally by beginning interpretation with “ordinary meaning” (or “plain meaning” in the plain-vanilla sense) under the ordinary meaning canon and then concluding that they are therefore bound to end interpretation with that meaning, regardless of extratextual considerations, under the plain meaning rule.22 22.See infra Part III.Show More The problem is that statutes sometimes have technical (i.e., non-ordinary or specialized) meanings.23 23.SeeAmy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”).Show More When courts conflate ordinary meaning and plain meaning, they risk excluding extratextual interpretive aids that would illuminate whether the ordinary meaning assumption should give way to a different meaning.

Consider an example involving a term with a clear ordinary meaning but less clear statutory context. The Penobscot Nation is a “riverine” Native nation.24 24.H.R. Rep. No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787.Show More A statute defines the “Penobscot Indian Reservation” as “the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine” as of June 29, 1818.25 25.Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i).Show More An “island,” no doubt, ordinarily does not include its surrounding waters.26 26.SeePenobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”).Show More But is it plain in this statutory context that “islands” excludes the waters? Notably, the provision references a historical agreement as well as a specific set of “islands,” and the Supreme Court has said that a reservation defined by reference to specific “islands” may encompass the surrounding waters.27 27.See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”).Show More Moreover, a neighboring provision guarantees fishing rights “within the boundaries of [the] Indian reservation[],”28 28.Me. Stat. tit. 30, § 6207(4) (2023).Show More and there is nowhere on the islands themselves to fish.29 29.Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”).Show More The U.S. Court of Appeals for the First Circuit nevertheless felt bound to enforce the ordinary meaning of “island” under the plain meaning rule—regardless of what the historical agreement was, the purpose for codifying it, or the canon that ambiguous statutes are construed to Indians’ benefit.30 30.SeePenobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))).Show More

Or consider an example of a term with a disputed ordinary meaning. Bostock v. Clayton County31 31.140 S. Ct. 1731 (2020).Show More held that the federal bar on workplace discrimination “because of . . . sex”32 32.Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)).Show More protects employees against discrimination based on sexual orientation or gender identity.33 33.Id. at 1754.Show More Much has been written in Bostock’s wake on the differences among textualist Justices’ opinions in the case regarding what constitutes ordinary meaning.34 34.See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision).Show More Left out of that discussion is a stark point about what all the Justices signed on to: the provision’s ordinary meaning was its plain meaning. Indeed, after determining the provision’s “ordinary public meaning,”35 35.Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”).Show More the majority repeatedly justified enforcement of that meaning based on what the majority variously called the provision’s “plain meaning,”36 36.Id. at 1750.Show More “plain terms,”37 37.Id. at 1743, 1748–50, 1752.Show More “plain text,”38 38.Id. at 1751.Show More and “plain statutory command[].”39 39.Id. at 1754.Show More The dissenters drew a similar equation; they just found a different ordinary meaning.40 40.Seeinfra notes 404–07 and accompanying text.Show More Sharp intramural, text-based disputes over the ordinary meaning of the provision would seem to suggest at least that there were other plausible, even if less ordinary, readings of the text. Yet not a single Justice posited that there was any textual ambiguity warranting recourse to additional interpretive aids.

What’s more, Justice Gorsuch’s majority opinion justified giving statutory terms their “ordinary public meaning” because “only the words on the page constitute the law adopted by Congress and approved by the President.”41 41.Bostock,140 S. Ct. at 1738.Show More Yet while the fact that only the text has met the Constitution’s bicameralism and presentment requirements for making statutory law may justify enforcing its plain meaning, even textualists recognize that those requirements do not mandate reading the text according to its ordinary meaning.42 42.See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001).Show More After all, the Constitution does not tell us how to read the text.

In short, how ordinary meaning and plain meaning relate under their respective doctrines has become something of an enigma in practice. Justice Scalia and Bryan Garner’s influential treatise on statutory interpretation even gives a cryptic secondary definition for the plain meaning rule as: “Loosely, the ordinary-meaning canon.”43 43.Scalia & Garner, supranote 2, at 436.Show More

While there are rich literatures on both ordinary meaning44 44.See, e.g., sources cited infra notes 99, 103, 114–15, 120–22.Show More and plain meaning,45 45.See, e.g., sources cited infra notes 135, 196, 215.Show More these literatures have studied the topics separately. Scholars have noted that ordinary meaning and plain (as in clear) meaning are different,46 46.SeeBaude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge, supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum, supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule).Show More and others have flagged that “there may be important differences” even between ordinary meaning and plain-vanilla meaning.47 47.Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”).Show More But no one has explained these differences in any depth. That is my goal—to clarify the differences between ordinary meaning and plain meaning, to identify the ways in which they are conflated, and to evaluate when they should converge.

My thesis: “ordinary meaning” under the ordinary meaning canon and “plain meaning” under the plain meaning rule have different definitions, functions, consequences, and justifications. Both are sensitive to context, however, because courts agree that statutory terms have meaning only in context.48 48.See infra note 84 and accompanying text.Show More Thus, a term bears its ordinary meaning unless the context indicates a technical meaning. But a term’s ordinary meaning is also its plain meaning only when it is plain from how the term is used in the statute that its context is ordinary, not technical. How plain must it be? Because “plainness” is ultimately a legal characterization,49 49.See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–09 (2019).Show More how plain (and to whom it must be plain) should depend on the court’s purposes for assuming ordinary meaning. The following roadmap previews the details.

Part I defines “meaning.” What the words and phrases in a statute “mean” in a legal sense differs from what they “mean” in a linguistic sense. Ordinary meaning and plain meaning are both claims about linguistic meaning—specifically, what the statutory words and phrases in context would convey to a reasonable English user. But the nature of their claims as well as the consequences for legal meaning are very different.

Part II clarifies the differences between ordinary meaning and plain meaning. First, different definitions: ordinary meaning refers to the content of what the statutory text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the statutory text conveys in context is clear from the text. Second, different functions: ordinary meaning provides a starting point for what the statute means subject to other considerations, while plain meaning acts as an evidentiary rule to bar other considerations if the statute’s meaning is clear from the text. Third, different consequences: ordinary meaning provides a statute’s default legal meaning, while plain meaning specifies its legal meaning (arguably subject to absurdity). Fourth, different justifications: because statutes are not, in fact, everyday communications, ordinary meaning must ultimately be justified counterfactually (e.g., asking how an ordinary member of Congress, as opposed to a court, would interpret the statute) or by normative values (e.g., democracy and the rule of law). In contrast, courts enforce plain meaning for an epistemic reason: the clear meaning of the text that survived the constitutional process for making statutory law is the best evidence of the legal norms that Congress promulgated.

Part III identifies how courts conflate these differences in practice. Courts refer to ordinary meaning and plain meaning interchangeably, which can lead them to invoke the plain meaning rule to enforce plain-vanilla meaning. Courts also conflate the doctrines by relying on the plain meaning rule to enforce ordinary meaning merely absent a statutory definition, like in Penobscot Nation v. Frey, or other clear statement from Congress. And in recent cases, such as Bostock, the Supreme Court has begun to muddle their justifications, suggesting that the rationale for enforcing plain meaning mandates reading statutes according to their ordinary meaning.

Part IV evaluates when courts should enforce ordinary meaning as plain meaning. A term’s ordinary meaning—even when clear—is also its plain meaning only if the statutory context plainly supports that reading. Thus, ordinary meaning is not always plain meaning. But often they converge. Not only are there easy cases with only one—both ordinary and plain—meaning, but “plainness” also should not require the complete absence of alternative readings. Rather, whether a meaning is “plain” is ultimately a legal judgment that should depend on the court’s purposes for assuming ordinary meaning. If a court assumes that “island” bears its ordinary meaning as an expedient method to reach an agreement among the judges, then the question is “how plain to us?” and the threshold for plainness is low—the whole point is to reach a solution efficiently. But if a court assumes that “island” bears its ordinary meaning because, in a democracy, laws should be interpreted according to how the public would understand them, then the question changes to “how plain to ordinary people?” And the threshold for plainness may go up, depending on the court’s beliefs about how ordinary people distinguish between ordinary and technical language. Thus, for plain meaning, much depends on the reasons for ordinary meaning.

The Conclusion sums up the implications for legal practice. First, courts and litigators should be clear about when they are making a claim about ordinary meaning as opposed to plain meaning, given their different interpretive consequences. Second, courts should ensure they match the correct consequences to ordinary meaning and plain meaning respectively. Third, courts should enforce ordinary meaning as plain meaning only when it is plain from a term’s statutory context that it bears its ordinary meaning.

What lies outside this Article’s scope, however, is whether ordinary meaning and plain meaning are coherent guideposts for statutory interpretation. There is, to be sure, profound disagreement on that score. But what I take to be a less controversial point is that today’s practitioners and courts operate in an environment in which claims about ordinary meaning and plain meaning are facts of life. So this Article is written in the spirit that, regardless of one’s views on ordinary meaning and plain meaning, it is worth trying to understand how they relate.

  1.  E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”). ↑
  2.  Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”). ↑
  3.  E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975). ↑
  4.  E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). ↑
  5.  Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). ↑
  6.  Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev
    .

    419, 420 (2005) (“[T]extualism does not admit of a simple definition.”). ↑

  7.  See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev
    .

    1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s). ↑

  8.  See 1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev
    .

    417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”). ↑

  9.  Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”). ↑
  10.  See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev
    .

    855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”). ↑

  11.  Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev
    .

    213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”). ↑

  12.  See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev
    .

    621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”). ↑

  13.  In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). ↑
  14.  See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev
    .

    195, 197–98 (1983); cf. Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”). ↑

  15.  Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev
    .

    109, 164 (2010); see also John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev

    .

    1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”). ↑

  16.  Cf. Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev
    .

    76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms). ↑

  17.  Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS]. ↑
  18.  Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev
    .

    113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023). ↑

  19.  William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev
    .

    1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation). ↑

  20.  See sources cited infra notes 310–11. ↑
  21.  William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev
    .

    539, 545 (2017). The wonderful “plain vanilla” example is theirs. ↑

  22.  See infra Part III. ↑
  23.  See Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev
    .

    2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”). ↑

  24. H.R.

    Rep

    .

    No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787. ↑

  25.  Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i). ↑
  26.  See Penobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”). ↑
  27.  See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”). ↑
  28.  Me. Stat. tit. 30, § 6207(4) (2023). ↑
  29.  Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”). ↑
  30.  See Penobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))). ↑
  31.  140 S. Ct. 1731 (2020). ↑
  32.  Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)). ↑
  33.  Id. at 1754. ↑
  34.  See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev
    .

    461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision). ↑

  35.  Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”). ↑
  36.  Id. at 1750. ↑
  37.  Id. at 1743, 1748–50, 1752. ↑
  38.  Id. at 1751. ↑
  39.  Id. at 1754. ↑
  40.  See infra notes 404–07 and accompanying text. ↑
  41.  Bostock, 140 S. Ct. at 1738. ↑
  42.  See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001). ↑
  43.  Scalia & Garner
    ,

    supra note 2, at 436. ↑

  44.  See, e.g., sources cited infra notes 99, 103, 114–15, 120–22. ↑
  45.  See, e.g., sources cited infra notes 135, 196, 215. ↑
  46.  See Baude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge
    ,

    supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum

    ,

    supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule). ↑

  47.  Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev
    .

    726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”). ↑

  48.  See infra note 84 and accompanying text. ↑

  49.  See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev

    .

    1497, 1505–09 (2019). ↑

©Virginia Law Review Association. All rights reserved.