In a recent article published in Slate, Professor Jed Shugerman contended that if President Trump were to fire Special Counsel Robert Mueller and shut down his investigation, state attorneys general could step into the resulting gap. With the greatest respect to Professor Shugerman, I disagree. While state authorities could harass Mr. Trump in ways his opponents find personally satisfying or politically useful, state officials cannot function effectively as stand-in special prosecutors of a president or his administration.
The first problem is jurisdiction. The Mueller investigation is focused on “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” matters that “arise directly from that investigation,” or efforts to obstruct it. All these issues are quintessentially federal. As recent discussions in the media and among scholars have amply demonstrated, it is not clear even what federal law or laws may have been violated by Russian contacts with the Trump campaign or Mr. Trump’s efforts to forestall investigation of those contacts. Few, if any, state laws would apply to these matters.
For example, Russian interference in the presidential election, even if proven, probably wouldn’t violate any state law. By way of illustration, the 649 pages of the 2015 New York State election law contain nothing that seems to apply, not even the intriguingly titled Section 17–154, “Pernicious political activities.” Likewise, state statutes do not criminalize obstruction of federal criminal investigations or conspiracies to defraud the United States.
While state law does not cover the conduct at the core of the Mueller investigation, many of those who oppose the president surmise that the true mother lode lies not in the Russia connection but in the things Mueller might discover while investigating Russia. Indeed, Trump’s near-frantic concern with the Mueller investigation may well stem from his fear that the special counsel’s review of business and tax records will reveal previously hidden misconduct.
So let’s assume that Trump fires Mueller and a state attorney general wants to take up the investigation. What then?
If a federal prosecutor like Mueller seeks an indictment against a sitting president or his associates, the president could block it in three ways: (1) by firing the prosecutor and shutting down the investigation, (2) by pardoning his associates and (maybe) himself, or (3) in a case against the president himself, by arguing that a sitting president is immune from prosecution, either because a subordinate executive branch official cannot initiate a criminal action against the president or because allowing such a prosecution would cripple the president in the exercise of duties that are crucial to the ordinary function of the entire federal government.
If a state prosecutor were to bring a case against the president or his aides, many of these obstacles to federal prosecution would be eliminated. A state prosecutor is neither appointed nor removable by the president. A president has no authority to stop a state criminal investigation. And a president has no power to issue pardons—whether prospective or retrospective—to himself or anyone else for state crimes.
However, in a state case against either the president or his subordinates, Trump’s immunity arguments become even stronger. The Supremacy Clause of the U.S. Constitution decrees that state actors must for many purposes be subordinate to the national government. One important implication of the supremacy principle is that state officials ought not be able to hobble the national government with state lawsuits, civil or criminal, against important federal actors. Concern about this threat to national unity is embodied in a number of statutes and legal doctrines.
Federal officials enjoy either absolute or qualified immunity to civil suits for damages for acts performed as part of their official duties. A president is absolutely immune from such civil suits. Moreover, there is serious doubt that states can prosecute federal officers criminally for official conduct. In the case of a president, that doubt hardens to near certainty.
Consequently, none of Mr. Trump’s behavior in his capacity as president is within either the civil or criminal jurisdiction of state officials even if that behavior were to fall within the literal terms of a state law. The immunity of his subordinates against state lawsuits for their official conduct may be slightly less absolute but is still considerable. Therefore, state attorneys general are effectively fenced out of investigating any official conduct by Trump and company since taking office.
A Trump critic hoping for state intercession might say this doesn’t matter. State prosecutors could still seek evidence of private misconduct. Federal officials have no immunity from state civil or criminal actions based on their private misdeeds, either before or after entering office. If a senator, Cabinet secretary, or federal judge assaults or defrauds another citizen in violation of state law, he or she cannot claim immunity based on occupation of a federal office.
As for presidents, it appears from the Supreme Court’s decision in Clinton v. Jones that a private civil action for a president’s private misconduct may proceed while the president is in office. Of course, that decision has been ruthlessly criticized for its blithe, and demonstrably false, assumption that civil proceedings will not materially interfere with the president’s conduct of his office, and it is uncertain what the court might say if presented with the issue today. Though some have disagreed, it is not unreasonable to expect that a state criminal investigation of a sitting president for private misconduct would, at the least, be stayed until he left office.
But even if Jones extends to criminal cases and a state investigation of the private conduct of the president and his associates could proceed, state attorneys general are immeasurably weaker than Special Counsel Mueller. Trump opponents look hopefully to Mueller precisely because he wields the unique power of the Department of Justice: top talent, vast fiscal resources, the manpower of the FBI, access to the product of intelligence agencies, national and international jurisdiction, and the instruments of compulsion provided by grand juries and federal courts. No state attorney general has this array of tools. To take the simplest among many examples, a federal prosecutor like Mueller can obtain Trump’s personal and business federal tax returns. A state attorney general cannot.
Professor Shugerman argues that state authorities have a weapon unique to them, the writ of quo warranto that could be filed against Trump corporations to discover, among other things, whether they are being used as vehicles to violate the foreign Emoluments Clause. Though ingenious, this approach is both unlikely to find favor with state courts and, at least as to the emoluments question, is ultimately rather pointless.
First, quo warranto actions are mechanisms for ensuring honest corporate governance. It seems extremely doubtful that state judges will find such actions a proper vehicle for enforcing an obscure, and heretofore never enforced, federal constitutional provision against a U.S. president.
Second, the facts of the Trump emoluments issue are plain. No fancy moves by state officials are required to discover what the world knows: Corporations Trump controls are getting paid lots of money from foreign sources. The only issues to resolve are whether those payments are prohibited emoluments and if so what the remedy might be. If a state court—improbably—decides such payments are emoluments, it might—improbably—order some form of disgorgement or divestment. But it cannot remove Mr. Trump from office. The only way an emoluments violation really matters is if it leads to impeachment, and the obstacle to that result is not the absence of facts but the reluctance of a Republican Congress to address the question.
State AGs are not without teeth, but their jurisdiction is narrow and their powers constrained by geography, the peculiarities of state law, and limitations imposed by their position in the federal scheme. But suppose a state attorney general is willing to marshal his limited power against the president of the United States. What should he be investigating?
The thing the president may most fear, and ardent Trump opponents most hope for, is that the Mueller investigation will crack open the wall of secrecy he has placed around his private business dealings to reveal previously unknown sins. The key point is precisely that such private sins, if any, are unknown. If there were credible evidence, or even solid suspicion, that Trump or his family had committed a serious state crime before taking office, nothing prevented state officials from investigating and prosecuting them before the election. None did. Why not?
The obvious reason is that no state prosecutor had enough evidence to justify a criminal investigation, still less an indictment. Trump and his businesses have been the subject of private lawsuits and state scrutiny for years. While he is plainly a dodgy operator, he’s never been charged with a crime, and there is no indication that any state has anything more on him now than they ever did.
Trump represents a real threat to the norms that support American democracy and the rule of law. But the response to Trump cannot be abandonment of those same norms. Central to the rule of law is the principle that prosecutors may not employ their inquisitorial arsenal against political adversaries. The ethos of prosecutorial restraint protects us all. If liberals abandon it in pursuit of Trump, they will have no ground of complaint if he, or some even less savory successor, unleashes prosecutorial power against his political foes.
If state attorneys general have defensibly apolitical grounds for investigating Trump, I will hold their coats and cheer them on. But absent real and specific grounds to believe he has committed a violation of state law for which any other citizen would be pursued, all of us should cast a wary eye on any state attorney general who embarks on open-ended criminal or civil inquiries into the personal affairs of this president.