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Copyright 2019 Dan Cofran
This issue has never been litigated, so there are no court decisions on point as judicial precedent. However, under long-standing judicial principles for interpreting the Constitution, it is evident that a sitting president is not immune to criminal indictment. While under some circumstances a president may enjoy civil immunity for acts in performance of his or her official duties, a president’s official duties do not include criminal acts.
The Constitution refers to judicial immunity, but only for members of Congress, not the president. Even then, it is a limited civil immunity, not immunity from criminal prosecution. In addition, the impeachment provisions do not shelter a sitting president from indictment and criminal prosecution.
The position that a sitting president is immune to indictment is set forth in two Department of Justice opinions, not court opinions. These were written during the Richard Nixon and Bill Clinton presidencies by their own respective appointees when both were under independent/special counsel investigations for criminal conduct.
These opinions go beyond the Constitution’s actual language and assert that the Constitution’s separation of powers insulates a president, specifically, that criminal prosecution as a practical matter would amount to a Judicial branch disruption so severe that the presidency would cease to function as the Executive branch.
These opinions are not binding on the judiciary. They are binding within the Department of Justice only, as acceded to recently by Special Counsel Robert Mueller.
Impeachment by the House does not actually remove a president or other federal official. The process starts with “articles of impeachment” passed by a majority vote in the House. The Senate then conducts a trial. Conviction by the Senate requires a 2/3 majority vote of those present. Penalties upon conviction include removal from office and a bar from running for federal office ever again.
Interpreting the Constitution
An answer to this question must include an understanding of how judges interpret the Constitution. They use several different methods for interpreting its provisions.
Precedent. Probably the most basic tool for interpretation is judicial precedent, meaning prior decisions on the same issue are followed. This is also called stare decisis . . . “to stand by matters decided.” For many years, federal judges including the Supreme Court have seen themselves as “stewards of an existing body of law and not innovators charged with radically remaking it.” * If a prior Supreme Court decision applies to the law and the facts of a case, federal courts will follow the prior decision or very carefully distinguish it.
Traditional Methods. In addition to precedent, courts look to the actual language used in a Constitutional provision, according the commonly understood meaning of that language at the time of adoption. Courts will look at similar provisions in the Constitution to devine meaning, interpreting the Constitution as a whole to be consistent. Courts will also go outside the actual language of the Constitution and look at relevant history from the time of the provison’s adoption to do determine the drafters’ intent and purpose behind adopting the provision. Courts will also look to the Constitution’s stucture as a whole to determine what meaning best supports the Constitution’s ideological structure, e.g., separation of powers, federalism, etc. Courts will also examine how the provision tracks characteristics distinct to American democracy, e.g., individual freedom from government coercion, rule of law, etc.
Originalist Methods. Originalism is a term coined in the 1980s. In contrast to traditional methods, originalists look only to the actual words of the Constitutional provision, according to their plain and ordinary meanings as understood at the time written, including consideration of the Constitution as a whole to maintain consistency. They go no further. If it’s not in the Constitution, including amendments, it doesn’t exist. If the ordinary meaning at the time of adoption is unclear, some originalists go a little further to determine the words’ meanings at the time. They will consider historial sources, including intent of the drafters, if available, and conditions then prevailing in society, but no further. Legal scholars view originalists as more likely to depart from precedent if the earlier decision cited as precedent was not limited to the actual language of the Constitution and no further.
Applicable Constitutional Provisions
The Constitution does not anywhere state that any sitting federal official, including the president, is immune to criminal indictment. Simply stated, if a claimed right is not in the Constitution by explicit language or by fair inference, particularly if it is otherwise is addressed, it will have a difficult time achieving Constitutional recognition.
There are two provisions in the Constitution that address criminal prosecutions of federal officials.
First, the Privilege from Arrest and the Speech or Debate Clause, Art. II, sec. 6, cl. 1, states:
Senators and Representatives . . . shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
By its plain terms, this is limited to legislative activity of members of Congress, not the president. In any event does not cover crimes since it specifically excludes “treason, felony and breach of the peace.” This is viewed as showing that the Framers actually considered immunity from criminal prosecution and decided, “No, not for anyone.” If the Framers wanted to provide a sitting president or other federal officer with immunity they knew how to say so, could have done so but chose not to do so. This was not a matter of oversight.
Second, the Impeachment Judgment Clause, Art. I, sec. 3, covers impeachment of “Civil Officers” by the House followed by trial in the Senate for “Treason, Bribery, or other High Crimes and Misdemeanors.” Its clause 7 states that a party impeached and convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”
Some people think this establishes a sequence for proceeding . . . that a criminal indictment of a civil officer, including the president, can come only after impeachment proceedings.
This is not correct. Impeachment applies to all “Civil Officers,” including federal court judges, cabinet officers, senators and house members. Federal court judges have been impeached in the House and tried in the Senate many times in the nation’s history. In many of these cases, as a matter of historic practice, indictment and trial came first, while the judge was still sitting, followed by impeachment, trial and removal. In addition, no court case has ever held that impeachment must precede indictment.
In addition, scholars today agree this provision was included to make it clear that a federal officer indicted and tried in court following impeachment and trial in Congress could not raise “double jeopardy,” being tried twice for the same conduct, as a defense to indictment and trial in court after being impeached. This was done to distinguish from the English impeachment practice at the time.
A recently uncovered 1998 legal memorandum prepared for the Clinton independent counsel investigation subscribes to all the preceding views.
Office of Legal Counsel Position
The Attorneys General for Presidents Nixon and Clinton, through the Department of Justice’s Office of Legal Counsel (“OLC”), issued opinions in 1973 and 2000, respectively, toward the ends of their terms, claiming sitting presidents could not be indicted. The Department’s Solicitor General also filed a brief to the same effect in the 1973 federal prosecution of former Vice President Agnew concluding that while a president cannot be indicted a vice president can.
The OLC is headed by a Deputy Attorney General, assisted by 15 to 20 Assistant Deputy Attorneys General, all presidential political appointees, together with career “Attorney Advisors” in the classified service. The OLC’s main job is to settle legal disagreements between cabinet and other federal agencies.
In addition, from time to time the presidency will release OLC opinions regarding presidential powers, holding them out as important legal opinions. This is to be taken with a grain of salt. These opinions are binding only within the executive agencies, not the courts. The Supreme Court has been clear. Under our separation of powers, “[i]t is emphatically the province and duty of the Judicial Department,” not the Executive, “to say what law is.” Marbury v. Madison (1803).
Too Big to Fail. Too Big to Jail.
The Nixon and Clinton OLCs took a structural approach, claiming that criminal prosecution of a sitting president would be so distracting and time consuming that the executive branch would be brought to a standstill, effecting an “incapacitation” and ”constructive removal” from office by means of the Judiciary, thereby working a violation of the Constitution’s separation of powers structure and principles.
The 2000 OLC opinion also reviews several Supreme Court decisions decided after the 1973 OLC opinion. These decisions approve a civil qualified executive privilege for confidentiality and civil qualified immunity to shield a president and his or her top advisors from appearing before the courts and congressional committees. These later decisions are based, at least in part, on a separation of powers structural view to reduce presidential distraction from the courts and congress.
However, there are no court decisions extending this civil privilege and immunity to criminal proceedings. Indeed, a Reagan 1982 OLC opinion stated any claim of executive privilege for confidentiality would not extend to “criminal or unethical conduct.” Similarly, an early-term 1994 Clinton OLC opinion confirmed that the privilege would not apply to “personal wrongdoing.” Official acts do not include criminal acts.
25th Amendment. Further, to the extent the argument is based a criminal prosecution bringing the presidency to a standstill, it ignores the 25th Amendment, sec. 3, adopted in 1967. This lets the vice-president temporarily assume the duties of the president as “Acting President” in the event the president informs Congress he or she is “unable to discharge the powers and duties” or the office. Some people claim this is limited to medical or similar disabilities. While that may have been a foremost thought for many, the amendment does not say so. It does not even use the word “disability,” nor does it define the broad phrase “unable to discharge the powers and duties” of the office.
The plain language of the Constitution does not protect a president from indictment. To the extent courts have approved an executive privilege for confidentiality or immunity as a part of the separation of powers, they are limited to civil proceedings. Simply stated, no one is above the law.
Impeachment and indictment serve different purposes. Impeachment is about preserving the integrity of government by removing a federal officer from a political office for treason, bribery or high crimes and misdemeanors, which may or may not be crimes. Indictment is about punishing a federal officer for criminal acts, some of which may not be high crimes and misdemeanors.
In the end, however, whether to impeach or indict, or both, or in what order, are not legal questions. They are practical and political questions, fraught with complications, discussed in this post’s companion, “Indicting a Sitting President – A Sticky Wicket.”
*Donald Ayer, “Guest Essay,” New York Times, October 4, 2021. Mr. Ayer is a former U.S. Attorney and was Principal Solicitor General during the Reagan administration; Deputy Attorney General in the George H. W. Bush administration; and currently Adjunct Professor, Georgetown Law. This quotation added October 14 2021.
© 2019 – 2021, Dan Cofran. All rights reserved.