President Donald Trump’s presidential memorandum ordering an investigation of Joe Biden’s cognitive decline and his use of the autopen is just the most recent step in Trump’s hostile takeover of the Department of Justice. It is also nonsensical fan service, amplifying addled MAGA conspiracy theories that contend, with a straight face, that Biden was really a robotic clone. In these senses, the investigative order was a sign of just another Wednesday in the chaotic, topsy-turvy world of Trump.
On a legal level, one thing is striking about the text of the memo: The order does not explicitly target Biden himself, at least not directly—only the aides who supposedly facilitated Biden’s use of the autopen and suppressed evidence of his decline. Biden’s absence as a direct target is almost certainly the result of last summer’s Supreme Court decision in Trump v. United States granting presidents immunity for “official” acts. That decision was intended to stanch a cycle of retribution. The Biden administration’s investigation of Trump, the argument goes, would beget the vengeful Trump investigation of Biden. And so on, the Court feared, ad infinitum, with each successive turn of the political wheel. By this logic, the decision is what is now protecting Biden from just the sort of retribution the Court hoped to avoid.
But although the decision will have occasional positive impact, its flaws are manifested almost every day. Even on its own terms, the Trump opinion evidently failed to achieve its objective. Far from preventing retaliatory and escalatory criminal investigations, it has enabled them. And now, with this new memo, Trump’s team may be setting the country on a path to further expand the immunity bubble, to protect not just the president but his aides as well—enabling yet more lawlessness.
To begin with, the absurd investigation of Biden’s cognitive decline was almost certainly encouraged by the immunity decision itself—in the sense that the grant of presidential immunity frees Trump from any personal responsibility for his own “creative” use of the law. In a rational world, Trump might face legal consequences for his illicit abuse of the criminal-justice system—in the form, say, of a civil suit for malicious prosecution. But thanks to Trump v. United States, Trump is free to undertake any plausibly official act with complete impunity, including ordering nonsensical investigations of those who worked for his predecessor. Even if Biden is protected, the Court’s immunity calculus failed to account for Trump’s obsession and left open the possibility that an opponent’s aides would be targeted.
Which brings us to the final and, perhaps, most insidious aspect of Trump’s order: a possible further expansion of presidential immunity. Following the Trump decision, some defenders of the Court contended that the adverse impact of granting presidents criminal immunity would be minimal. Aides to the president, through whom he acted, would, they argued, remain subject to criminal prosecution and thus be deterred from partaking in criminal activity. And so, the argument went, the grant of presidential immunity was no big deal in the grand scheme of things.
The argument is a comforting one, but other possibilities exist. A nonfrivolous argument can be made that, because a president can act only through subordinates, a faithful reading of Trump would extend presidential immunity to those whose assistance he requires to effectuate his official presidential actions. If we grant the (in my view, ahistorical) Supreme Court premise that immunizing core presidential conduct was, in the Founders’ minds, essential to enable presidential action, then it seems wildly inconsistent to simultaneously prevent the president from acting effectively by denying the same protection to his essential subordinates.
Others have seen this inconsistency and tried to use it to buttress claims that aides should also be immune. For example, as part of its Trump holding, the Court explicitly determined that Trump’s pre–January 6 directions to the Department of Justice to investigate alleged election fraud were absolutely immune acts. Building on that holding, one of Trump’s DOJ allies, Jeffrey Bossert Clark, has argued that he is covered by derivative presidential immunity for what he did at Trump’s request, and that he cannot be prosecuted or disciplined for acting on Trump’s behalf.
This is not the law as of now, and in the present state of affairs, Clark (and his successors in Trump’s current administration) will likely lose a claim of immunity. But one suspects strongly that part of Trump’s motivation (or, more probably, that of his self-interested advisers) in authorizing the Biden investigation is to change the law.
The investigation will, as noted, target Biden’s aides. Those aides may, under the pressure of criminal inquiry, offer the same sort of defense that Clark has—I was working for the president, and I share his immunity. The sheer outrageousness of Trump’s investigation may tempt courts to side with Biden’s aides, shielding them from the time, expense, and anguish of a frivolous investigation.
And that temptation may be just what Trump’s team is counting on: using a bogus investigation of Biden to set a precedent to shield their own subsequent criminal activity. Adopting that doctrine would remove the last shred of structural restraint on Trump’s team—the specter of post-Trump prosecution.
Perhaps I’m overthinking this, and the bank shot to derivative immunity for Trump’s aides never occurred to the Trump team (in which case, I apologize for putting it on their radar). Perhaps this investigation is indeed merely fan service.
But I think not. If anything, the Trump team has demonstrated a remarkably sophisticated understanding of how to assert unilateral presidential authority to work an expansion of presidential power. Therein lies the danger. Even if the result of aide immunity is not intended, it may be what lies ahead. The country must avoid this—and thus Biden’s aides must seek to defend themselves against the outrageous investigation of Biden’s cognition on the merits, not on any procedural immunity grounds. That way is more burdensome, to be sure, but in the end, it will be far better for the nation.
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