The Presidential Privilege Against Prosecution

14 Pages·2017·0.56 MB·English

The Presidential Privilege
Against Prosecution
Akhil ReedAmar * & Brian C. Kalt"
There are ... incidental powers,
text, history, structure, and precedent
belonging to the executive
supportstheconclusionthatJustice Story
department, whicharenecessarily
reached: Sitting Presidents cannot be
implied from the nature of the
prosecuted.
functions, whichareconfidedto it.
Amongthese, mustnecessarilybe This privilege does not place
includedthepowertoperformthem, Presidentsabovethe law; theycanbeheld
without any obstruction or
accountablefortheiractionsaftertheyleave
impediment whatsoever. The
office,andtheycanbeimpeachedtohasten
Presidentcannot,therefore,beliable
this. TheprivilegedoesnotmakePresidents
to arrest, imprisonment, or
detention,whileheisinthedischarge imperial; theirspecial status is ultimately
ofthedutiesofhisoffice... traceable to the rights of the American
- JusticeJoseph Story, 1833 I People. Nordoes the privilege clash with
the structure ofAmerican constitutional
Can a sitting President ever be government;thePresidentisconstitutionally
criminally prosecuted (outside an distinctfromother,prosecutableofficials.
impeachmentcourt)?Thequestionhasbeen
debated-sometimes hotly, sometimes The President Is Unique
coolly-sincethebeginningoftheRepublic. That last point is a good place to
Although the longpedigreeofthis debate begin. An obvious counter-argument, a
suggeststhatreasonablepeoplecandisagree, reasontothinkthatasittingPresidentmight
webelievethatthebestviewofconstitutional be susceptible to prosecution, is that
• Akhil Amar is the Southmayd Professor ofLaw at Yale Law School; B.A. 1980, Yale University;
J.D. 1984, Yale Law School.
••Brian C. Kalt is a third year student at Yale Law School; J.D. Candidate, 1997.
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membersofCongress,federaljudges,Vice capacityandhaslargelyfungiblepersonnel.
Presidents,cabinetofficers,andgovernors Even if, say, an entire circuit court were
canallbeprosecuted. ButtheConstitution arrested, other judges could sit by
doesnotviewthe Presidentasitdoesthese designationifneedbe. Whenagovernoris
otherofficials.AsAlexBickelputit,"Inthe prosecuted,muchoftheexecutivepowerof
presidencyisembodiedthecontinuityand thestatecanstillbeexercisedinherabsence.
indestructibilityofthestate.''2Itisembodied When, by contrast, the President is being
inthepresidencyuniquely. prosecuted, the presidency itselfis being
How exactly is the President so prosecuted. When the President is
different,constitutionallyspeaking?Firstand substantiallydistractedfromhisjob,heishalf
most important, the absentand hisjobgoes
If [the President] is
President is a unitary half-undone. If he is
executive. The arrested, so too is the arrested, so too is the
Constitution vests the executive branch of the executivebranchofthe
nation's legislative government. government.
authority In 535 Second, the
Senators andRepresentatives, itsjudicial Presidentisnational.MembersofCongress
authorityinover1300ArticleIIIjudges,but and governors are elected to represent
its entire executive power in a single districtsorstates.Judgesareunelectedand
President.Governorsareelectedseparately represent,essentially,thepiecesofpaperthat
from other state executive officials it is their job to interpret and apply. The
attorneygenerals,treasurers,andsecretaries Presidentiselectedbytheentirepolityand
ofstate- andthusdonotembodythe full represents all 260 million citizens ofthe
executivepoweroftheirstates. United StatesofAmerica. Ifthe President
Congress can (anddoes) function were prosecuted, the steward of all the
as ifitwerewholeevenwhenupto halfof People wouldbe hijacked from hisduties
its members are absent; prosecuting an byanofficialoifew(ornone)ofthem.
individualmemberofCongressthus does Third, the President'sjobrequires
notinterfereundulywiththelegislature'susual immediacy and constant vigilance. Our
function.Thejudiciary,too,maintainsexcess bicameralCongresswasdesignedtobeslow
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anddeliberative. Thejudiciaryissupposed astate,agovernor's response is usuallyto
tobeevenmoreunhurriedandcircumspect. callthePresident.
ButthePresidentmustoftenactinstantlyand Otherstructuralevidenceshowsthe
decisively, and unlike the other two President's unique position in the
branches, isoncalltodoso24hoursaday, government.Congressdoesnotreconstitute
365 days a year. As one ofus has written itselfwhen an emergency occurs during
elsewhere: recess; itis up to the Presidentto convene
it. Additionally, the President is the only
Constitutionally speaking, the
officialwithaconstitutionally-definedinstant
President never sleeps. The
understudy. Constitutionally, the Vice
President must be ready, at a
President'smainjobistobereadytoassume
moment'snotice, to dowhateverit
takes to preserve, protect, and themantleofstateatamoment'snotice.
defend the Constitution and the For all of these reasons, any
Americanpeople: prosecutewars,
distractionofthePresidentfromhisduties is
commandannedforces(andnuclear
muchmoresignificantthansimilardistractions
weapons), protect Americans
oftheseother,prosecutableofficials,andhas
abroad, negotiate with heads of
state,andtakecarethatthe lawsbe a muchbiggerimpactonthewell-beingof
faithfullyexecuted.3 thenationandall itsPeople.
This obviously distinguishes the State Prosecution
Presidentfromlegislatorsandjudges,butit The question of prosecuting the
also makes the President distinct from Presidentisreallytwo questions: onestate
governors. Whilegovernorsdohavesome andonefederal. We'llstartwiththeformer:
continuousresponsibilities,theyhavefewer CanasittingPresidentbeprosecutedbystate
problems ofsuch extreme importance to officialsforviolatingstatecriminallaws?
cope with on a moment's notice. To take TheargumentthatsittingPresidents
twoobviousexamples,theydonotdealwith cannot be so prosecuted begins with the
foreignpolicyemergenciesandtheydonot venerablecaseofMcCulloch v. Maryland.
commandnuclearweapons.Andinpractice, Under McCulloch, state officials are not
significantly,whenanemergencydoesstrike allowedtoobstruct
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the measures of a government underMcCullochtheycannotprosecutehim
created by others as well as untilhehasleftoffice.McCulloch dealt,of
themselves,forthebenefitofothers
course,withMaryland'slegislativepowerto
incommonwiththemselves. The
tax a National Bank, not with any state
differenceisthatwhichalwaysexists,
executiveattempttoprosecutethePresident.
andalwaysmustexist,betweenthe
actionofthewhole ona part, and Buttheprincipleisthesame.Toreiterateand
theactionofapartonthewhole.4 paraphrase,nocountyprosecutorisallowed
to"arrest[]allthe[executivepowers]ofthe
Inotherwords,asinglestatecannotuse its governmentandprostrate(] itatthefoot of
powertoderailthefunctioningoftheUnited thestates."
States. Importantly, this privilege is not
Doesthisprovetoo much? Surely designedtoprotectthePresident'spersonal
theConstitutiondoesnotgivefederalofficials interests(althoughitdoes,temporarily),but
license to become a lawless marauding ratherthepublicinterestofthePeople-all
horde. Surely indeed, but McCulloch thePeopleofAmerica-tohavetheirchosen
providesahelpfuldividingline: leaderableto executehisduties "fortheir
benefit." This right ofall the People to a
Ifweapplytheprincipleforwhich
functioninggovernmenttrumpstherightof
thestateofMarylandcontends,to
only a few of them to have an instant
theconstitutiongenerally,weshall
prosecution.
finditcapableofchangingtotallythe
character ofthat instrument. We Ahelpfulexample: Imaginethatin
shall find itcapableofarrestingall April 1861, after the Civil War beganbut
the measures ofthe government,
before his state had seceded, a local
andofprostrating itat the foot of
prosecutorinVirginiadecidedtoprosecute
thestates.5
PresidentLincoln. Woulditmakesenseto
Ordinarily,inotherwords,statescanenforce say that Lincoln was subject to "arrest,
theirlaws and prosecute federal officials imprisonment,ordetention"atthatcrucial
without"arresting"and"prostrating"the moment? Indeed, who is this local
normalfunctionsofthefederalgovernment. prosecutorthathecouldactinthenameof
ButthisisnotsowiththePresident,andso the peopleofhis county,attheexpenseof
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theprotectionofallthePeopleoftheUnion? drainonthePresident'sabilitytodothis.
IfPresidentLincolnwereheldtoanswerfor "Is this necessarily so?" asks the
acrime,in whosenamecouldhehavebeen skeptic."Couldn'titbeaminorviolationthat
soheld?Theanswerwewillgivebelow requiresverylittletimeatall?"Perhaps.But
andmoreimportantly,thattheConstitution suchlinesarehardtodraw,especiallywhen
gives - is, in the name ofAllthe People they wouldbe (necessarily) so politically
of America, through their chosen charged. This political nature inherent in
representatives. anything the Presidentmightdo provides
A skeptic might ask ifa criminal another answer. If the distraction ofthe
prosecutionwouldreallybesodisruptive. President's crime is such that it is less
Afterall, inthisdayandagePresidentsare disruptiveforthePresidenttojustwaivehis
often subject to crises that divert their immunityandpleadguilty,hecanalwaysdo
attention. Sincetheexecutivebranchisso justthat. Ifherefusestowaivehisprivilege
bigandhassubstantialinertiaallowingitto andthepoliticalpressurespersist,rendering
functionwithoutthePresidentaround,would himunableto executehisduties, hecanbe
itreallybesuchacrisisifthePresidenthad impeached and then prosecuted. Moreon
to face prosecution? With modern thatmechanismlater.
technology,couldn'taPresidentevenrunthe Ourskepticmightstillhavenagging
countryfrom insideajailcell?Theskeptic doubts. One is historical. In 1804, Vice
missesacrucialpoint. Wedonotmindthe President Aaron Burr killed Alexander
Presidentresponding to apublic crisis by Hamiltonandwasindictedintwostatesasa
divertinghisattentionfrom othermatters, result.In 1973,VicePresidentSpiroAgnew
becausethat ispreciselyhisjob.Ifawaror faced prosecution too (though his was
a natural disaster requires his immediate federal). No one successfullyargued that
attention, weexpecthimtobeable togive these men shouldhave been immuneas a
it. The difference is that these so-called matteroftheirhighconstitutionalrank- in
distractionsarewithinthescopeofhisjob. factthefederalgovernmentinAgnew'scase
Thepresidencyisdesignedtojuggleamyriad argued just the opposite.6 But Vice
ofdemands, butpublicones. Mounting a Presidents are not Presidents (to put it
personal,criminaldefensewouldbeaserious mildly). The government can certainly
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functionwithoutthem-atvariouspointsin leavesoffice."This"leavingoffice"canbe
ourhistory, totalingalmostfortyyears,we hastenedbyanelectionoranimpeachment.
havenotevenhadaVicePresident.Although Thestatuteoflimitationscanbestayed. In
theTwenty-FifthAmendmentdramatically short,thecrimewillout.
narrows thiswindowofvulnerability, our Our argument for temporary
ConstitutionalsoallowsCongresstoprovide immunityisfar from novel. ListentoVice
President John Adams and
President Nixon said that "if the
Senator (later Chief Justice)
President does it, it's not illegal"
Oliver Ellsworth. A senator in
and the Supreme Court (in the conversation with them about
case of Nixon v. Fitzgerald) presidential prosecutability
essentially agreed with him. assertedthatthePresidentwasnot
above the laws, to which they
for Presidential succession without Vice repliedthat"[y]oucouldonlyimpeachhim
Presidents, making them, ultimately, a andnootherprocess[w]hateverlayagainst
constitutionalluxury. him."9 Butthen, the senatorpointedout, a
But at bottom, our skeptic asks, Presidentcommittingmurderonthestreets
"isn'tthissupposedtobeagovernmentof could only be removed by impeachment.
laws,notmen?"Certainly;wedonotsuggest True,acknowledgedAdamsandEllsworth,
otherwise. Thistemporaryprivilege from but"[w]henheisnolongerPresident,[y]ou
prosecutionislessofathreattotherule of canindicthim."lo
thelawthantheimmunitygiventoPresidents
actingintheirofficialcapacities. President Federal Prosecution
Nixonsaidthat"ifthePresidentdoesit, it's Mostofthesesameargumentsapply
not illegal"andthe SupremeCourt(in the to federal prosecutions as well. The main
case of Nixon v. Fitzgerald) essentially differences are structural. Instead ofthe
agreed with him'? That compromises the divisionofpowerbetweenstateandfederal,
rule oflaw. By contrast, the privilege we it is the separationofpowers betweenthe
assertsays that, "ifthe Presidentdoes it,8 judicial,legislative,andexecutivebranches
he can be held responsible for it after he atworkhere.
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AdamsandEllsworthagreed: "The
Itissettledlawthattheseparation
Presidentpersonallywasnotthesubjectto
of-powers doctrine does not bar
anyprocesswhatever... For[thatwould]
everyexerciseofjurisdictionover
put it inthepowerofacommonJustice to
the Presidentofthe United States.
exerciseany[a]uthorityoverhimand [s]top See, e.g., United States v. Nixon;
the [w]hole [m]achineofGovemment."I\ United States v. Burr; cf.
Youngstown Sheet & Tube Co. v.
ThomasJefferson,notusuallyanintellectual
Sawyer. But our cases also have
allyofAdamsandEllsworthonconstitutional
established that a court, before
matters, clarifiedthis further: "would the
exercisingjurisdiction,mustbalance
executivebeindependentofthejudiciary,if the constitutional weight of the
he were subject to the commands ofthe interest to be served against the
dangersofintrusionontheauthority
latter,andtoimprisonmentfordisobedience;
and functions of the executive
iftheseveralcourtscould...withdrawhim
branch.
\4
entirelyfromhisconstitutionalduties?"12
Ifthe "commonjustice" is a state
authority,thispossibilityraisestheconcerns ProsecutionofthePresidenteasilymeetsthis
alreadydiscussed. Ifthejustice is federal, standardofdisruption. Indeed,ifsuccessful,
though, it raises separation of powers it amounts to a defacto "removal" from
problems. First,itputstheentireexecutive office.
branchatthemercyofthejudiciary.Second, Foritspart,theConstitutionforesees
theConstitutiondesignatesCongressasthe only two ways ofremoving a disfavored
courtthattriessittingPresidents.I3 Presidentfrom office: voting himoutand
This principle does have limits. impeachinghim.15Ofcourse,thePresident
Obviously,thejudiciaryhassomeinjunctive canalwayschoose to resign orhandover
poweroverthepresidencywhen the latter powertotheVicePresidenttemporarily,just
isactinginitsofficialcapacity. Itisnotasif ashecanchoosetoconsenttoprosecution.
ongoingwrongdoingcannotbeenjoined.But Withoutthebackgroundoptionofimmunity
punishingasittingPresidentforapast,wholly fromprosecution,however,thisisnomore
completed,badactisaverydifferentthing. achoicethan ishandingoveryourwalletto
OnthistheCourthasspokeninstructively: amugger. Asmentionedinthestatecontext
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too,thequestioniswhocanlegitimatelyact context of the prosecution of a lower
againstthePresidentinthisway.Theanswer executiveofficial.IfthePresidenthimselfis
onceagainisthechosenrepresentativesof thetargetofthe independentcounsel, itis
All the People, acting through the well hardertoseehowtheJusticescouldcredibly
designedmechanismofimpeachment,and upholdthe"forcause"limitationbyclaiming
not a lone judge and a lone prosecutor, that they "simply do not see how the
wieldingtheswordoffederalcriminallaw President'sneed to controltheexerciseof
againsttheswordbearer,thePresident. [prosecutorial]discretionissocentraltothe
Allofthismightgiveourskepticone functioning of the executive branch."16
reasontoperkup. IfthePresidentistheChief Obviously,thequestionofprosecutingthe
FederalProsecutor,whyisthereaseparation Presidentiscentraltothefunctioningofthe
of powers problem if he, in effect, executive branch, in a unique way. If
prosecuteshimself?Thisisagoodstructural Congresshaspassedastatutethatdoesnot
question. There are two answers. Firstof give the President this discretion, it has
all, ifthePresidentisprosecuted,itismost violatedtheseparationofpowers. Ifjudges
likelytobebyanindependentcounsel(who upholdit,theyhavetoo.
is,asapoliticalmatter,usuallyamemberof
the otherparty, and is, as a factual matter, Impeachment: First Things First
oftengoingtoerronthesideofprosecution), Contrastthecheck-and-balanceof
nottheJusticeDepartment. IfthePresident impeachment, in which the Constitution
freely allows his regularly appointed specificallygivesCongress and theChief
lieutenantsto pursuehim, then there is no Justicethejobofchargingand"trying"the
separation ofpowers problem. As for an President. Structurally, impeachmentfits
independentcounselpursuingthePresident, neatly with the temporary nature of the
the Presidentcanrefuse to allowherto be President's privilege. The Constitution
appointed in thefirstplace,andhecanfire explicitlystatesthatimpeachedofficialsare
herifhesochoosesaswell. subjectto"indictment,trial,judgmentand
The case of Morrison v. Olson punishment"aftertheirconvictionbythe
allowed independent counsels to be Senate.Ofcourse,forotherfederal officials
removableforcauseonly,butthiswasinthe this does not preclude pre-impeachment
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prosecution(aswehaveseen,thePresident It certainly makes geographical sense to
is unique). But since the punishment for minimizedisruptionbytryingthePresident
impeaclunentisspecificallylimitedtoremoval down the street from his office insteadof
(anddisqualification)fromoffice,andsince dragging him to a county courthouse
regular prosecution is then possible, thousandsofmilesaway.17Also,itisharder
impeachment provides a constitutional toimpeachthantoindict,makingitlesslikely
method -removal - for prosecuting a thatanimpeachmentwillgettotrialthanina
Presidentalmostimmediatelywithoutfreezing regularcriminalprocess,an importantfact
thefunctions ofthepresidency. Andwhile inthisageofovercriminalizationandrubber
impeachment only comes into play for stamp grand juries. Finally, after
serious offenses (high crimes and impeachmentandconviction,thePresident
misdemeanors) is replaced and
Few Presidents are saints, but
thisisasitshould the function of
be: it is only for who ultimately should decide government
such senous whether they must stand trial for returns to full
offenses that a their alleged sins? speed, whileina
prosecution criminal
cannotsimplywaitfortheexpirationofthe prosecutionconvictionisjustthebeginning
President'sterm. ofthedisruption: whowouldbeinchargeof
Doesn't impeachment freeze the theOvalOfficependinganappeal?
functions ofthepresidencyjustassurelyas Furthermore,evenifthedisruption
a criminal prosecution would? Possibly, ofimpeachmentisnolessthanthatofatrial,
though not necessarily. For one thing, there isgoodreasonforustonotmind.The
impeaclunentallowsforamuchmoreflexible disruptionofimpeachment is much more
andstripped-downversionofprocedurethan difficulttobringabout; aprosecutoranda
doourcourts. Foranother,thePresidentis grandjuryaremucheasiertoconvincethan
alreadyinstitutionallyequippedtodealwith is halfofthe House of Representatives.
Congress; while impeachment is a rare Relatedly,andaswehavebeenarguingall
event,itismuchclosertotheregularbusiness along, ifweassume thatthepresidencyis
ofPresidentsthanisacriminalprosecution. goingtobedisrupted,whoisallowed,and
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who do we want, to disrupt it? Few his friends was raised. James Wilson
Presidents are saints, but who ultimately responded to this scenario with a
shoulddecidewhethertheymuststandtrial reassurancethat,"[i]f[thePresident]himself
for their alleged sins? A prosecutor and beapartytotheguilthecanbeimpeached
twenty-three grand jurors, or the andprosecuted."19Besideshintingatwhat
representatives of half of "We the wehavesaidaboutimpeachmentnecessarily
People"actingthroughexplicitconstitutional precedingprosecution,20thisintroducesus
procedures?TheFoundersknewwhatthey to another structural consideration, the
were doing when they designed the pardon. Then-Solicitor General Robert
impeachmentprocess. WhenaPresidentis Borkarguedthat,logically,Presidentsmust
removed, itisnotbyanunaccountablestate beimmunefrom federalprosecution,since
officialoranevenlessaccountablespecial theycanalwaysjustpardonthemselves. As
prosecutor. Itis done insteadbythe most oneofus has arguedat length elsewhere,
august, most representative, most though, Presidents cannot pardon
constitutionally elaborated, and most themselves.21 Amongotherreasons,theself
accountabledeliberativebodywehave,the pardonwouldbepermanent,nottemporary,
Congress. Aware thatpolitics couldenter andwouldthusplacethe Presidentabove
intotheequation,the Founderswiselyand therule oflaw,zzAndanyway, itcannotbe
purposelyputthefinaldecisioninthehands so lightlyassumedthataPresident facing
ofthemoredeliberativeSenate,andrequired prosecution would pardon himself, since
asuper-majoritysothat convictionofthe doingsowouldalmostcertainlyguarantee
Presidentwouldnotbepossiblewithoutthe an impeachment (potentially as a [self-]
assentofatleastsomeofhispoliticalallies.18 bribe, one of the enumerated bases of
Impeachment, then, is the sole means of impeachment), and might even be
removingasittingPresident, and isagood prosecutableasacrime(publicmisconduct,
oneatthat. obstructionofjustice,etc.)initself.
Thereisonemorepointtobemade.
IntheFoundingdebates, ina discussionof Conclusion
limitingthe President'spardonpower,the The Constitution provides for a
scenarioofamalfeasingPresidentpardoning governmentoflaws,notmen. Atthesame
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