The Supreme Court ruling on presidential immunity has caused an unusual question, at least in the minds of some: Could a president take over large federal contract awards in contravention of acquisition rules and regulations and get away with it? Federal administration professor Bob Tobias joins The Federal Drive with Tom Temin.

Interview transcript:

Tom Temin I have to ask, Bob, do you think it’s just a little farfetched that incoming President Donald Trump would take over major acquisitions, which I guess in some theory the President is ultimately responsible for?

Bob Tobias I do. I do. In 2019, it was alleged by Amazon and Jeff Bezos that the president intervened in a contract award valued at $10 billion by directing the secretary of Defense to write a review about the award that was about to be given to Amazon. And Amazon alleged that this was all done because then President Trump was angry with editorials and stories appearing in the Washington Post.

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Tom Temin Yeah, I remember the allegations and but there were issues around people who were involved in planning that contract and so forth. Someone who had worked at Amazon; it kind of got murky, I think.

Bob Tobias Well, yeah, the allegation went away because DoD withdrew the contract and so the allegation was never proven. But the point is, if that allegation was proven in today’s world, I think there’s a good chance that presidential criminal immunity would exist. And I say that because the Supreme Court said in that case that there would be two bases for criminal liability. The first being if the President is exercising core constitutional power or responsibility, there is absolute criminal immunity. And the second basis is presumptive criminal immunity. If the President is performing an official act — an official act is an act that might be inferred from the Constitution or one where Congress gives the President statutory authority to make a decision — in those cases, there is presumptive criminal immunity. And then Chief Justice Roberts linked this core constitutional immunity to Article Two, Section One of the Constitution, which says, quote, “The executive power shall be vested in the President of the United States of America,” close quote. The executive power shall be invested in the President of the United States of America. Now, the executive power is not defined anywhere else. But I don’t think it’s outrageous to think that executive power would mean that any decision, the President could make, any decision around exercising executive power. I mean, the President certainly can’t do that and can delegate authority and responsibility. But that language is incredibly broad. And so I believe a strong argument can be made that core constitutional power under the Constitution gives the President the responsibility to manage the grant of executive branch awards. And if so, and if the President were to grant an award to a large donor because of a gift or to a family member because they’re a family member. Absolute criminal immunity would exist notwithstanding the existing laws, which would make it a crime.

Tom Temin You sound a little bit like Arthur Schlesinger. Fifty years ago, he wrote a book called The Imperial Presidency. Now, he was a Democrat and he had critique of the Nixon administration. But yes, I think there’s a basis to what you say. And I think it goes across every President since about Franklin Roosevelt have assumed executive powers that are nowhere near anything delineated in the Constitution nor necessarily given to them by Congress. So this has kind of been a creeping effect, I think, for almost a whole century, would you say?

Bob Tobias Well, yes. But what’s added here, Tom, and what’s unique is absolute criminal liability for the exercise of power or the making of a decision which would otherwise be criminal. The other basis for evading criminal liability is an official act by the President. And a smart prosecutor might say, well, an official act can’t be official act if it’s illegal. But the Supreme Court said, in the presumptive basis for criminal immunity, a court cannot examine the motives of a President. So the motives of a President were to grant an award to a family member that cannot be examined. So under either of the theories, presumptive immunity or absolute immunity, it looks like a President could make those decisions and not be charged criminally.

Tom Temin We’re speaking with Bob Tobias, former federal union president and professor of public administration at American University. So that being the facts as you see them, and yeah, that’s what the Supreme Court said. What can anybody do about it?

Bob Tobias I don’t know, Tom. I mean, I can’t imagine, I really can’t imagine what kind of an impact this might have on a $765 billion federal contract. That’s what it was in 2023. It was up 9% from 2022. So we’re talking about a whole lot of money and a whole large number of contracts. But what I can say, if this is true and a president may interfere without criminal consequences, the current structure, the very current structure of public competition for contract awards based on agency needs, submission of bids, evaluation of those bids, and making an award based on best value or lowest costs, which is always in the best interest of the public, will not necessarily be the basis for making decisions going forward.

Tom Temin Well, this is a case then where it’s almost the strength of institutions and norms and there is a federal acquisition regulation and a defense supplement that control this. And those are dictated by ultimately derived from the Competition and Contracting Act and other statutes in the subsequent years. So it sounds like the nation simply has to and the bureaucracy has to rely on really strong norms that have been in place over those same 50 years.

Bob Tobias Well, those norms have been the basis for making awards. Those norms are very, very — I mean, when you think about it, Tom, $765 billion, there’s an awful lot of opportunities for interference or bribes or whatever. But over the years, that has occurred very, very infrequently. And when it has occurred, the people have gone to jail. So what’s changed here is that the President may not go to jail for doing acts which heretofore have resulted in people going to jail.

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Tom Temin So we have to find some other way to send Presidents to jail.

Bob Tobias I guess so, Tom, I don’t know what the answer is.

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