While the Constitution aspires to “establish justice,” its other ambitions—like “domestic tranquility”—are not always compatible with perfect justice.
Does Holding Federal Office Confer Immunity from Prosecution?
Yesterday, I wrote that nothing in the impeachment power itself prohibits a sitting President, or any other federal civil officer, from being indicted, tried, and convicted on criminal charges. The impeachment power is properly understood as the exclusive means of removing from office certain federal officials—the President, the Vice President, and federal judges, each of whom possesses a constitutionally defined tenure in office. And imprisonment effects a practical removal from office, by separating an officer from the performance of his or her duties. But that does not mean that all prior stages in a criminal proceeding—indictment, trial, and entry of judgment—are prohibited by the impeachment power. Only certain punishments are.
I now take up the remaining argument against indicting an incumbent President (or other federal official). Putting to one side the Constitution’s impeachment clauses: Is there anything else in the Constitution that shields a sitting President (or any other federal officer) from criminal prosecution, so long as he remains in office? Does “office” itself confer immunity, until the officeholder is removed by impeachment (or leaves office through some other route)?
The answer, I submit, is clearly no. And the same answer applies for the President as for anyone else.
Start with the hardest case: prosecuting an incumbent President. One might think that if any federal officeholder were immune from prosecution it would be the President of the United States. (If the President has no immunity by virtue of his office, it seems clear that no other officer does.)
What makes the case of the President seemingly the hardest is the President’s status as chief executive with power to nullify the prosecution of federal crimes. As noted yesterday, the President is the nation’s highest federal law enforcement officer. As a matter of raw constitutional power, the President can countermand a federal prosecution for any reason he thinks appropriate. More than that, the President constitutionally can remove subordinate executive branch officers who fail to carry out his directives faithfully—including prosecutors, the Attorney General, or the FBI director. Finally, the President has the constitutional power to grant pardons and reprieves for commission of any federal criminal law offenses—a sweeping power best understood as plenary. The President can pardon crooks, cronies, and even co-conspirators in his own wrongdoing. As I have written elsewhere, the President can even pardon himself.
But none of this means that the President is constitutionally immune from federal criminal charges; it merely means that the President has the power to kibosh such charges—if he dares face the political fallout, which validly could include impeachment. (Congress might legitimately deem such act an abuse of the President’s constitutional powers.) Simply put: the power to countermand a prosecution is not a grant of constitutional immunity from prosecution.
The Prospect of Federal Prosecution
But wait, you say! Who on earth would bring criminal charges against the President in the first place? Surely no mere state prosecutor could bring such charges (the argument goes), as that would constitute state interference with a federal instrumentality or officer, violating the principle of McCulloch v. Maryland—the great 1819 Supreme Court decision holding that a state cannot tax the lawful operations of a federal entity—and contradict a few other landmarks, too. And how could a federal prosecutor bring criminal charges against his boss? Didn’t I just say that the President is the nation’s chief federal law enforcement officer? Wouldn’t the President just countermand any federal prosecution brought against him, or pardon himself? Even if the idea of criminally prosecuting the President isn’t outright unconstitutional, it seems unrealistic. Or so the objection runs.
Take the last scenario first. Perhaps no federal prosecutor would dare commence criminal proceedings against a sitting President. Even the most intrepid, independent-minded prosecutor might decline to start a proceeding that the President could so easily overrule—and which the prosecutor might be fired for bringing. But then again things might not play out that way. Constitutionally, nothing bars initiation of such a prosecution, and an audacious (or independent-by-regulation) prosecutor might well proceed, forcing the President to take the even more audacious action of killing the prosecution, firing the prosecutor, or pardoning his own alleged criminal wrongdoing—actions that might make Richard Nixon’s “Saturday Night Massacre” seem like child’s play. Or a President might choose not to countermand the charges, preferring to confront and attempt to refute them in a criminal trial (or feeling politically constrained to do so).
The simple point: Circumstances might exist where a federal prosecutor indeed might initiate criminal proceedings against his boss. In a world of “Special Prosecutors,” “Independent Counsels,” or “Special Counsels,” or even a world of courageous (or impudent) U.S. Attorneys, it is not at all unimaginable that a federal prosecutor could bring criminal proceedings against a sitting President.
Does Department of Justice “Policy” Forbid Prosecuting the President?
It is sometimes said that Justice Department “policy” forbids a federal prosecutor from indicting the President. But this is not so clear. The ostensible policy consists merely of an Office of Legal Counsel (OLC) legal opinion taking the tendentious (and in my view flawed) position that a sitting President constitutionally cannot be criminally prosecuted. It is not certain that this opinion really constitutes binding “policy”—at least not in the same sense as a formal legal regulation—and in any event the Deputy Attorney General could overrule OLC’s opinion if persuaded it is wrong (if the Deputy AG is not himself countermanded by a lawful superior, or removed). Somewhat amusingly, the OLC opinion takes the view that everybody else—judges, cabinet officials, and even vice presidents—can be prosecuted, convicted, and imprisoned. OLC’s opinion simply carves out a self-serving exception for its client-in-chief, the President.
Moreover, and significantly, even OLC’s opinion on this issue is carefully, even archly, hedged. It builds on prior analysis that assumed “that the President would oppose an attempt to subject him to indictment or prosecution.” (Emphasis added). The OLC opinion then notes that it “proceed[s] on the same assumption.” It explicitly does not address “whether it would be constitutional to indict or try the President with his consent.” (Emphasis added).
That might seem a strange way to frame, and condition, the analysis. Wouldn’t the President of course “oppose” his own indictment or prosecution? When would he ever “consent” to his own prosecution? But the hyper-careful framing artfully elides the point I just made: political or practical considerations might force a President to acquiesce—to “consent”!—to letting someone else make the decision whether or not to bring criminal charges against him. He might not desire prosecution; but he might not be in a position to countermand it or unwilling to pardon himself. (He might fear impeachment.) And OLC’s analysis does not reach that set of circumstances—which is to say the only realistic one in which the issue could arise.
It therefore seems to me that Department of Justice “policy” does not forbid an independent-by-regulation and independent-minded prosecutor from instituting federal criminal charges against a sitting President.
That was the political and legal reality in President Nixon’s situation. Nixon had agreed by binding regulation to cede authority to a Special Prosecutor. The Supreme Court held in United States v. Nixon that, unless and until the regulation granting such authority was rescinded, questions of prosecutorial policy—including directing a subpoena to the President himself—were for the Special Prosecutor, Leon Jaworski, to decide, not the President. A similar reality was at work in President Clinton’s situation, too: An Independent Counsel, Kenneth Starr possessed statutory independent prosecutorial authority, which included the authority to contest claims of presidential privilege or immunity. Neither President Nixon nor President Clinton was in a position to countermand the federal criminal investigations, then pending, involving their own possible wrongful conduct.
Nixon and Clinton: No Presidential Privilege from Prosecution
That brings us to the United States v. Nixon and Clinton v. Jones landmark Supreme Court decisions, rejecting both Presidents’ claims of “executive privilege” or “immunity” from legal process in pending judicial proceedings. The clear, almost unavoidable, implication of these decisions is that a President is amenable to criminal prosecution: the fact of holding the office of President of the United States does not confer a general immunity from the requirements of criminal and civil law; where the interests of the courts in the administration of criminal justice or the fair adjudication of civil lawsuits are present in a case affecting the President, the President is subject to the requirements and commands of the law the same as anyone else.
First, United States v. Nixon, the famous “Nixon Tapes Case,” held that the President does not possess blanket immunity from compulsory legal process in duly authorized judicial legal proceedings. The Court unanimously held that, unless or until President Nixon rescinded the regulations granting the Special Prosecutor’s authority (or fired him), Nixon had to comply with a subpoena for evidence in the form of tapes of confidential conversations with executive branch advisers.
Clinton v. Jones built upon and extended Nixon, holding that President Clinton could be compelled to respond to a civil lawsuit involving his non-official conduct. The Court explicitly held that the President “is subject to judicial process in appropriate circumstances.” The Court recognized that such proceedings “may significantly burden the time and attention of the Chief Executive” but held that this did not make a constitutional difference. Indeed, the Court deemed it “an abuse of discretion” for the trial judge to have delayed trial until after the President left office. Clinton v. Jones was unanimous too.
It is but a small step from the Nixon and Clinton holdings to the proposition that the President is not immune from criminal prosecution. If the President can be required to respond to a grand jury subpoena for evidence, he likewise can be required to appear before and provide testimony to such a criminal grand jury. If a grand jury can subpoena the President—exercise compulsive legal authority over him—it is hard to see why a grand jury similarly could not indict him, if it finds that the evidence warrants the conclusion that he has committed federal crimes. And if the President has no privilege from trial in a private civil suit while in office, as Clinton v. Jones holds, there appears no persuasive reason to think the President should have a privilege from trial for crimes against the United States. If anything, the interests of the courts in the area of criminal justice are even weightier than in the civil context, a point the Court in Nixon made in rejecting Nixon’s claim of executive privilege.
In short, if Nixon and Clinton are right, it follows that the President of the United States possesses no general constitutional immunity from federal criminal proceedings. The President can be indicted for federal crimes. He can be tried for those crimes. He can be convicted and sentenced. As I noted yesterday, he just cannot be removed from office — imprisoned—without being impeached and convicted.
Nothing in the unexercised power to countermand prosecutions, or to fire prosecutors, or to grant pardons, divests the federal criminal justice system of the authority it otherwise possesses to prosecute the President, the same as it could any other citizen. Nothing in the impeachment clauses divests courts of criminal-law jurisdiction they otherwise possess, up to the point of removing a President from office. And nothing in the powers or office of the President confers generalized immunity from the criminal law either. All the more clearly, no other federal officer possesses constitutional immunity from federal criminal prosecution.
State Prosecutions of Federal Officers
Clinton v. Jones left open the matter of state-court legal proceedings against a President. The Court noted that the Supremacy Clause makes federal law supreme over any contrary command of state law. The Court ventured that any “direct control by a state court over the President” might thus “implicate concerns that are quite different.”
The distinction is a sound one. A state may not impair the authorized activities of a federal officer engaged in lawful performance of official duties. That principle supplies at least some measure of rightful federal-officer immunity from state legal proceedings. And that principle certainly applies to the President. (Imagine, for example, South Carolina indicting President Abraham Lincoln, on crimes of its own definition, in 1861!)
Still, it would be going too far to conclude that any state grand jury indictment of a sitting President (or other federal officer) is automatically unconstitutional. For example: What if a sitting President commits rape or murder but no federal crime? Would a state really be forbidden even from indicting him? Must Congress impeach and remove a President before he is subject to state criminal process in any respect?
It is hard to imagine this being right. Principles of federal supremacy might properly bar a state from taking direct physical action to restrain or detain a President—like arrest or imprisonment—without the acquiescence and cooperation of the federal government. If Congress does not impeach and remove a President who has committed murder, rape, robbery, fraud, or some other serious state-law crime; and if the President interposes the executive power against such state prosecution, it may well be that the President could render state proceedings ineffectual. A state’s criminal law as a practical matter probably cannot be enforced against a sitting President without the cooperation of Congress through the impeachment power.
But that would not keep a state grand jury from indicting him. The President could neither countermand nor effectively nullify such state action, which would at least stand as a statement of the state’s interest in enforcing its criminal law. A state criminal law indictment arguably would function as an exercise of a state’s “freedom of speech”—akin to Virginia’s and Kentucky’s celebrated condemnations of the Alien & Sedition Acts in the 1790s.
It follows, I submit, that nothing in the U.S. Constitution forbids a federal or state prosecutor from initiating legitimate criminal-law proceedings against a sitting President of the United States. Of course, such a power might be abused or misused—just as presidential power, the impeachment power, or any other governmental power might be abused or misused. But in point of principle, neither the existence of the impeachment power nor the fact of holding federal office confers a per se immunity of the President, or any other federal officer, from legitimate application of federal or state criminal law. A sitting President may be criminally indicted, tried, and convicted—all without having first been impeached and removed from office.
Is Robert Mueller contemplating such a possibility, in the case of President Donald Trump? That is an interesting question of fact, of prosecutorial judgment, and of political reality. My point is simply that the Constitution does not exclude such a possibility as a matter of law.