Publication Title
New York University Journal of Legislation and Public Policy
Volume
25
Page
307
Year
2022
Abstract
If Donald Trump wins the 2024 election, his first order of business would be to use his power as president to halt the criminal investigations against him. In the case of federal indictments, he would likely begin by removing the special counsel, and then proceeding to remove anyone else who had control over the investigations or prosecutions. Such removal would likely constitute the crime of obstruction of justice. May a President do this? This Article addresses a narrow but critically important aspect of presidential authority: the intersection between the President’s power to remove executive branch officers and criminal laws that are generally applicable to both officeholders and non-officeholders alike. The Article asks whether a President can freely exercise his removal power under Article II, even when in so doing he commits a crime. The core case is the situation described above, namely that of a President under investigation who exercises his removal power to fire the special counsel or federal prosecutor in charge of that investigation. Can the President be charged with obstruction of justice under such circumstances? Can the President remove an appointee who refuses to work on behalf of his reelection campaign, even though it is a crime for anyone—including a President—to order or coerce a federal employee to engage in partisan politics? Can a President remove Department of Justice officials who refuse to declare him the winner of a legally valid election he in fact lost? Can he remove military officers who refuse to obey illegal orders to seize ballot boxes to overturn the election, replacing them with officers who will? These are all felonies under federal law: obstruction of justice, coercion of political activity, using the military to interfere with federal elections, seditious conspiracy, and more. But a President who argues that he truly has unlimited power to remove federal officers will say that criminal statutes are subordinate to a President’s powers under Article II of the U.S. Constitution, and that this includes the power to fire federal officers who refuse to comply with his orders, including those conducting investigations into presidential misconduct. This Article examines the presumed theoretical and constitutional basis for such an expansive approach to presidential removal powers. It also addresses the separate but related question of whether a President’s removal of a federal officer is void if the removal is performed in furtherance of a crime.
Recommended Citation
Richard Painter, "You're Fired": Criminal Use of Presidential Removal Power, 25 307 (2022), available at https://scholarship.law.umn.edu/faculty_articles/1113.
