Under the circumstances--i.e., the investigation being conducted by Special Counsel Robert Mueller--the question of whether an incumbent President can be indicted and prosecuted for his private criminal acts (acts not undertaken in his official capacity) has become more acute than it normally is. It is an open question, having never been answered by the Court (or any US court). But several legal scholars et al. have chewed on the issue over the years. As Nixon's Solicitor General, Robert Bork gave us the 1973 “Agnew Memo” in which he concluded that a Vice President can be indicted but a President cannot. In the case of the latter, Bork's fall-back argument was that it would be fruitless to indict a sitting President as s/he could always just pardon himself. However, pardoning oneself violates one of the most fundamental legal precepts proscribing judicial conflict of interest, namely that no one can judge a case in which s/he is a party. Nemo judex in causa sua is how you say it in Latin, and we should all say things in Latin as often as possible. If a sitting President being prosecuted or under threat of indictment were to grant himself a pardon, I strongly doubt any court would consider it grounds to halt the legal process. In Article II, Section 2, Clause 1, the Constitution explicitly excludes the presidential pardon in the case of impeachment, and simply never mentions criminal prosecution of the President or any other civil officer prior to impeachment. The provisions of Article I, Section 3, Clause 7 limiting impeachment to removal from office and stipulating that an impeached official is nevertheless “liable and subject to indictment, trial, judgment and punishment, according to law” are readily understood as merely eliminating double jeopardy for prosecutions after impeachment.
The question of presidential immunity from criminal indictment and prosecution similarly became a hot topic during the Clinton years. Yale Law School professors Akhil Reed Amar and Brian Kalt published an article in 1997 advocating that the President uniquely enjoys a temporary privilege from prosecution while in office. Just last week Charlie Savage of the New York Times recovered a very thorough opinion on the subject by the poetically named professor Ronald Rotunda, requested by Independent Counsel Kenneth Star in 1998. Rotunda concluded that “President Clinton is subject to criminal indictment and criminal prosecution, although it may be the case that he could not be imprisoned . . . until after he leaves that office. A criminal prosecution and conviction (with imprisonment delayed) does not, in the words of Nixon v. Sirica, 'compete with the impeachment device by working a constructive removal of the President from office.'”
The argument advanced by Amar and Kalt essentially rests on two standard premises: One, that prosecution of the President would cause an impermissible interference with his ability to perform the necessary duties of the office. (“When . . . the President is being prosecuted, the presidency itself is being prosecuted. [. . .] If he is arrested, so too is the executive branch of the government.”) This article was published just 4 months prior to the Supreme Court's unanimous decision in Clinton v. Jones, in which the Court affirmed the Eighth Circuit's rejection of these arguments from Clinton. Referring to the Eighth Circuit's holding, the syllabus succinctly explains “that the President, like other officials, is subject to the same laws that apply to all citizens, that no case had been found in which an official was granted immunity from suit for his unofficial acts, and that the rationale for official immunity is inapposite where only personal, private conduct by a President is at issue. The [Eighth Circuit] also rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch would violate separation of powers.”
The second premise that Amar and Kalt urge is just a generic separation-of-powers objection with a lemon twist, in which they propose that if the Independent Counsel were part of the DOJ, there wouldn't be a separation-of-powers problem. This renders that premise moot, given that the Independent Counsel statute they refer to has expired, and the office of the Special Counsel is now part of the DOJ.
Rotunda begins with arguments that are powerful in their simplicity. The Constitution's single impeachment clause (Article II, Section 4) lists the President along with the Vice President and “all civil officers of the United States.” It isn't uncommon for judges to be criminally prosecuted before they are impeached. The Constitution gives the President no special immunity in this regard, even while Article I, Section 6 provides members of Congress with specific narrow privilege from arrest (except for treason, felony and breach of peace) when in session, and immunity regarding their speech or debate on the floor. Thus, the Framers obviously knew how to write a provision immunizing officials from prosecution, but did not include such a provision for the President.
These arguments are lifted directly from the DC Appeals Court per curiam in Nixon v. Sirica, holding that the Constitution did not protect Nixon from ordinary court process--he had to turn over the subpoenaed tapes to Archibald Cox's grand jury:
Nixon v. Sirica
Of course, the DC court makes clear that it is not reviewing a question as to whether the President is subject to criminal procedure.
Rotunda makes a number of other arguments, including pointing out the basic incoherency or implausiblity of a President having“temporary immunity” from criminal prosecution while in office. Postponing a prosecution for 4 or 8 years is certainly likely to weaken any such prosecution, as memories fade and witnesses die. Such “temporary immunity” would violate the Sixth Amendment guarantee of a speedy trial.
Rotunda's list of criminal prosecutions of chief executives of other countries is also informative. He notes that he was “unable to find any instances where a democracy -- even a democracy that recognizes a King or Queen -- has immunized its Chief Executive Officer from criminal conduct simply because he or she is the Chief Executive Officer.”
So can a sitting President be indicted and prosecuted for his/her unofficial acts?
The question of presidential immunity from criminal indictment and prosecution similarly became a hot topic during the Clinton years. Yale Law School professors Akhil Reed Amar and Brian Kalt published an article in 1997 advocating that the President uniquely enjoys a temporary privilege from prosecution while in office. Just last week Charlie Savage of the New York Times recovered a very thorough opinion on the subject by the poetically named professor Ronald Rotunda, requested by Independent Counsel Kenneth Star in 1998. Rotunda concluded that “President Clinton is subject to criminal indictment and criminal prosecution, although it may be the case that he could not be imprisoned . . . until after he leaves that office. A criminal prosecution and conviction (with imprisonment delayed) does not, in the words of Nixon v. Sirica, 'compete with the impeachment device by working a constructive removal of the President from office.'”
The argument advanced by Amar and Kalt essentially rests on two standard premises: One, that prosecution of the President would cause an impermissible interference with his ability to perform the necessary duties of the office. (“When . . . the President is being prosecuted, the presidency itself is being prosecuted. [. . .] If he is arrested, so too is the executive branch of the government.”) This article was published just 4 months prior to the Supreme Court's unanimous decision in Clinton v. Jones, in which the Court affirmed the Eighth Circuit's rejection of these arguments from Clinton. Referring to the Eighth Circuit's holding, the syllabus succinctly explains “that the President, like other officials, is subject to the same laws that apply to all citizens, that no case had been found in which an official was granted immunity from suit for his unofficial acts, and that the rationale for official immunity is inapposite where only personal, private conduct by a President is at issue. The [Eighth Circuit] also rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch would violate separation of powers.”
The second premise that Amar and Kalt urge is just a generic separation-of-powers objection with a lemon twist, in which they propose that if the Independent Counsel were part of the DOJ, there wouldn't be a separation-of-powers problem. This renders that premise moot, given that the Independent Counsel statute they refer to has expired, and the office of the Special Counsel is now part of the DOJ.
Rotunda begins with arguments that are powerful in their simplicity. The Constitution's single impeachment clause (Article II, Section 4) lists the President along with the Vice President and “all civil officers of the United States.” It isn't uncommon for judges to be criminally prosecuted before they are impeached. The Constitution gives the President no special immunity in this regard, even while Article I, Section 6 provides members of Congress with specific narrow privilege from arrest (except for treason, felony and breach of peace) when in session, and immunity regarding their speech or debate on the floor. Thus, the Framers obviously knew how to write a provision immunizing officials from prosecution, but did not include such a provision for the President.
These arguments are lifted directly from the DC Appeals Court per curiam in Nixon v. Sirica, holding that the Constitution did not protect Nixon from ordinary court process--he had to turn over the subpoenaed tapes to Archibald Cox's grand jury:
The Constitution makes no mention of special presidential immunities. Indeed, the Executive Branch generally is afforded none. This silence cannot be ascribed to oversight. James Madison raised the question of Executive privileges during the Constitutional Convention,[43] and Senators and Representatives enjoy an express, if limited, immunity from arrest, and an express privilege from inquiry concerning "Speech and Debate" on the floors of Congress.[44] Lacking textual support, counsel for the President nonetheless would have us infer immunity from the President's political mandate, or from his vulnerability to impeachment, or from his broad discretionary powers. These are invitations to refashion the Constitution, and we reject them.
Though the President is elected by nationwide ballot, and is often said to represent all the people,[45] he does not embody the nation's sovereignty.[46] He is not above the law's commands: "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law . . .."[47] Sovereignty remains at all times with the people, and they do not forfeit through elections the right to have the law construed against and applied to every citizen.
Though the President is elected by nationwide ballot, and is often said to represent all the people,[45] he does not embody the nation's sovereignty.[46] He is not above the law's commands: "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law . . .."[47] Sovereignty remains at all times with the people, and they do not forfeit through elections the right to have the law construed against and applied to every citizen.
Nixon v. Sirica
Of course, the DC court makes clear that it is not reviewing a question as to whether the President is subject to criminal procedure.
Rotunda makes a number of other arguments, including pointing out the basic incoherency or implausiblity of a President having“temporary immunity” from criminal prosecution while in office. Postponing a prosecution for 4 or 8 years is certainly likely to weaken any such prosecution, as memories fade and witnesses die. Such “temporary immunity” would violate the Sixth Amendment guarantee of a speedy trial.
Rotunda's list of criminal prosecutions of chief executives of other countries is also informative. He notes that he was “unable to find any instances where a democracy -- even a democracy that recognizes a King or Queen -- has immunized its Chief Executive Officer from criminal conduct simply because he or she is the Chief Executive Officer.”
So can a sitting President be indicted and prosecuted for his/her unofficial acts?
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