'You're Fired': Criminal Use of Presidential Removal Power

100 Pages Posted: 6 Oct 2022 Last revised: 12 May 2023

See all articles by Claire O. Finkelstein

Claire O. Finkelstein

University of Pennsylvania Carey Law School

Richard W. Painter

University of Minnesota Law School

Date Written: September 20, 2022

Abstract

This Article addresses a specific, but critically important aspect of presidential power: the intersection between the president’s power to remove executive branch officers and criminal laws that are generally applicable to both office-holders and non-office-holders alike. The question we ask is whether the president can obstruct justice by removing a presidential appointee who is investigating or prosecuting crimes of the president himself or of his associates. Can a president remove an appointee who refuses to work on behalf of the president’s re-election campaign even though it is a crime for anyone, including a president, to order or coerce a federal employee to engage in partisan politics? Worse, can a president remove Department of Justice officials who refuse to declare a legally valid election to be invalid and then remove military officers who refuse to obey illegal orders to seize ballot boxes to overturn the election, replacing them with officers who will? These crimes range from obstruction of justice to coercion of political activity and involvement of military personnel in elections to sedition. All are felonies under federal statutes. But a president who argues that he truly has unlimited power to remove federal officers will say that all these criminal statutes are subordinate to the powers he has under Article II of the U.S. Constitution, and that this includes the power to tell federal officers what to do and to fire them if they won’t. This article examines the presumed theoretical and constitutional basis for such an expansive approach to the president’s inherent Article II powers and the consequences of giving presidents such broad latitude to use their removal power to commit crimes in office. Finally, this Article addresses the difficult question of whether a president’s removal of a federal officer is void if the removal was done in furtherance of a crime.

Keywords: Executive Authority; Removal Power, Article II, Presidential Privilege

JEL Classification: K14, K19

Suggested Citation

Finkelstein, Claire and Painter, Richard W., 'You're Fired': Criminal Use of Presidential Removal Power (September 20, 2022). U of Penn Law School, Public Law Research Paper No. 23-16, Available at SSRN: https://ssrn.com/abstract=4224998 or http://dx.doi.org/10.2139/ssrn.4224998

Claire Finkelstein (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-5798 (Phone)
215-573-2025 (Fax)

Richard W. Painter

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-626-9707 (Phone)

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