The Constitutional Propriety of Prosecuting the President

Can a President of the United States be indicted and criminally prosecuted while still in office, without having first been impeached, convicted, and removed from office?

I am in the midst of a series of posts on the constitutional power of impeachment, dating back to late June. A cluster of constitutional questions that almost inevitably arises in discussions of impeachment concerns the relationship between the impeachment power and criminal prosecution: In general, does the Constitution require that one precede the other – and, if so, which must come first? Is the answer different for the President than for other “civil officers” like cabinet officials, judges, or the Vice President? (And, if so, why?)

These questions might well soon prove to be more than theoretical. News reports suggest that Department of Justice Special Counsel Robert Mueller might be considering asking a federal grand jury to bring criminal charges against President Donald Trump. Would such action be constitutionally proper?

The constitutional issue divides into two parts: First, whether there is something about the impeachment power itself that requires that impeachment and removal precede criminal indictment and trial? Second, whether there is something about holding federal office – or the presidency specifically – that in effect confers “immunity” from criminal prosecution, unless the officeholder is first impeached and convicted (or has left office through a different route).

Then there’s an important follow-on question: If criminal prosecution of a federal officeholder can occur while he (or she) is still in office, how far can this go? If convicted, can an officer be incarcerated? To put the question in its most dramatic form: Can a sitting President constitutionally be imprisoned without first having been impeached and removed from office? If not, is there any reason the answer should be different for presidents than for other federal officers? Can a federal judge be imprisoned without having first been impeached—as has occurred on more than one occasion in recent years?

I touched on some of these questions, briefly, in a previous post in this series about whether Vice President Aaron Burr constitutionally could have been impeached for shooting and killing Alexander Hamilton in their famous 1804 duel—and whether a sitting Vice President could be criminally prosecuted for such acts, by either New Jersey or New York. (As noted in that earlier post, both states in fact initiated criminal proceedings against Burr.) I answered both questions a preliminary “yes” and promised to give the question fuller treatment in a later post. Here goes. Today’s post focuses on whether the impeachment power itself pre-empts the possibility of criminal indictment. Tomorrow, I follow up by addressing whether holding federal office (or the presidency in particular) immunizes the official in question from criminal prosecution.

Impeachment and Indictment

My position is straightforward and grounded in the Constitution’s text, structure, and internal logic: First, nothing in the existence or terms of the impeachment power itself precludes criminal proceedings from being brought against any federal civil officer, while still in office. This includes criminal proceedings initiated against the President of the United States. Nothing in the Constitution’s impeachment provisions justifies different treatment for the President than for any other federal civil officer in this regard.

Second, nothing about the office of President of the United States of its own force confers immunity upon the President from the usual operation of the criminal law. Again, the answer is the same for the President as for any other official. The cliché is true: no man is above the law. The Supreme Court’s unanimous decisions in the Nixon Tapes case (United States v. Nixon) and the Paula Jones sexual harassment suit against Bill Clinton (Clinton v. Jones) correctly hold that the President possesses no constitutional immunity from the reach of compulsory process in judicial proceedings—holdings that logically extend to federally grand jury subpoenas, indictments, and criminal prosecutions.

It follows that a sitting President of the United States constitutionally can be indicted, tried, convicted, and even sentenced for commission of criminal law offenses, whether he has been impeached or not. The same holds true for any other federal officer. Criminal proceedings need not await impeachment. It also goes without saying—or at least it should—that nothing in the impeachment power requires that criminal proceedings precede impeachment either: impeachment does not require commission of a criminal-law offense in the first place, as all responsible scholars agree.

To be sure, the apparent expectation of the Framers was that impeachment of a president ordinarily would precede criminal prosecution. In the usual course of things, that would be the more natural, expected, perhaps even preferred sequence. The Impeachment Punishment Clause (Article I, section 3, clause 7) certainly contemplates this sequence, providing that an impeachment conviction, which is limited to the political punishments of removal from office and disqualification from future office, “nevertheless” does not preclude “Indictment, Trial, Judgment, and Punishment, according to Law.” The implication—though not the command of the text—is that criminal proceedings ordinarily would follow impeachment and removal, not precede them.

Alexander Hamilton, discussing the impeachment power in Federalist 65, made passing reference to the fact that the President would remain susceptible to criminal punishment “after” impeachment. In Federalist 69, he referred to the President’s liability to impeachment and, “afterwards,” to criminal prosecution. In Federalist 77, he again made reference to the President’s exposure to “subsequent” prosecution “in the common course of law.”

But customary expectation does not equal constitutional requirement. Nothing in the Impeachment Punishment Clause (or in Hamilton’s writings in The Federalist) can fairly be read to require this sequence. In terms, the Impeachment Punishment Clause simply specifies the limitation of impeachment to political punishment and then states a non-preclusion rule: impeachment punishment does not preclude criminal punishment. Nothing in the impeachment power itself, or in the explicit retention of the option of criminal-law punishment, bars pre-impeachment criminal “Indictment,” “Trial,” or even “Judgment” of a federal civil officer, if a criminal prosecution is otherwise authorized by law and consistent with the Constitution.

No Imprisonment Without Impeachment

Carrying into effect criminal law “Punishment may be a different matter, however—depending on the punishment. Where carrying out a criminal-law sentence would have the effect of removing an officer from his or her constitutionally defined term of office—as, I submit, implementing a punishment of incarceration would, for the President, Vice President, and federal judges—the Constitution’s logic and structure requires that impeachment precede the actual execution of the sentence. This is because impeachment and conviction is the only constitutionally authorized method for involuntary removal of these constitutional officers before the end of their textually prescribed terms of office. (Cabinet and other subordinate executive officers stand in a somewhat different position, as I explain presently.)

Imprisoning someone, I submit, effectively removes that person from office—ingenious, too-clever arguments to the effect that the President could sign bills and receive foreign ambassadors in his jail cell to the contrary notwithstanding. Realistically, imprisonment works a functional removal of an official from office. (And obviously, execution effectively removes an official from office!) It is conceivable that some criminal sentences—such as a fine — might be carried out without an official thereby being “removed” from office. Carrying out such sentences might be allowable without impeachment. The practical test for any punishment is whether it separates the official from the ability to perform the functions and duties of office—not whether the official continues to receive a paycheck. Incarceration separates the officeholder from the powers of the office.

It follows that a President may not be imprisoned without first being impeached and removed from office, because imprisonment would functionally remove a President from office and that is the exclusive province of the impeachment power. It does not follow, however, that the impeachment power bars any and all earlier steps in a criminal proceeding. That would drastically over-read impeachment’s preemptive consequences. The prohibition on removal-from-office-by-criminal-law-punishment cannot be leveraged into a prohibition of indictment, trial, and judgment, if otherwise authorized by criminal law.

The same answer should obtain for the Vice President and for federal judges: these officeholders hold constitutionally specified terms of office; imprisonment would work a practical removal from office; therefore, carrying out a sentence of imprisonment would intrude on the exclusive province of the impeachment power.

There is some modern practice to the contrary. Several times in recent years federal judges have been imprisoned after pleading guilty to or being convicted of federal crimes, without having first been impeached. Judge Harry Claiborne was incarcerated and then impeached and convicted, in 1986. Judge Walter Nixon was incarcerated and then impeached and convicted, in 1989. Judge Samuel Kent was incarcerated and then impeached and resigned in 2009. (Vice President Spiro Agnew pled “no contest,” but resigned without facing impeachment.)

The modern practice, while understandable, is mistaken. It rests on sloppy analysis: Courts have rightly rejected the argument that a sitting federal judge cannot be prosecuted unless he has been impeached. But as noted, prosecution is one thing and incarceration is quite another. It is a basic reasoning mistake to assume that the two answers are necessarily the same; prosecution might be allowable and incarceration an infringement on the impeachment power.

To be sure, the practical consequences of incarceration might be less dramatic in the case of a judge than for a president. (But not necessarily: imagine the prosecution and imprisonment of the Chief Justice of the Supreme Court.) The temptation thus may be to think that imprisonment does not really, literally “remove” a judge from office, but instead imposes something more like a temporary involuntary leave of absence.

But the answer in principle must be the same: if an officeholder has been separated from the powers of office, he or she has been removed, and involuntary removal from office of a federal judge is the exclusive province of impeachment. (Again, it is helpful to imagine the imprisonment of the Chief Justice.) The contrary modern occasional practice of imprisoning judges without impeaching them first is, I fear, simply wrong. And here again, we should judge the practice by the standards of the Constitution, never the other way around: one cannot rightly judge the meaning of Constitution by practice departing from it.

I mentioned that cabinet members and other executive branch officers fall into a different category. That is because they do not have constitutionally prescribed terms; they serve at the pleasure of the President. The President can remove these officials for whatever reasons he thinks appropriate. (There are certain exceptions, not relevant here.) The President is also the nation’s top federal law-enforcement official—the Prosecutor-in-Chief, as it were. It follows that the President can subject subordinates to criminal prosecution and, if the officer is convicted, “remove” him or her to prison. Thus, executive officers (other than the President and Vice President) can be indicted, tried, sentenced, and imprisoned without first being impeached.

Bottom line: Presidents, Vice Presidents, and all civil officers constitutionally can be indicted, tried, and even sentenced for commission of federal crimes, without first having been removed from office. The impeachment power does not preclude the criminal law power to that extent. But Presidents, Vice Presidents, and judges—civil officers with constitutionally prescribed tenure in office, not subject to the President’s removal power—cannot be removed from office other than by impeachment and conviction. And carrying out a sentence of imprisonment would effectuate such a removal from office.

Tomorrow, I take up the second question: Even if the impeachment power does not preclude criminal prosecution, does anything in the fact of holding federal office confer an immunity from prosecution? The answer seems obvious for everyone but the President: no. Holding federal office does not confer immunity from prosecution. But intuitions differ when it comes to the President. Does the President of the United States, by virtue of his office, possess a unique constitutional immunity from prosecution unless and until he is impeached and removed?

In tomorrow’s essay, I give the reasons why the President possesses no such immunity. The practical upshot is that Robert Mueller therefore could, constitutionally, ask a federal grand jury to indict President Donald Trump on federal criminal charges, if he believes probable cause exists for such charges. And if the grand jury agrees, it constitutionally could indict Trump irrespective of whether he has first been impeached.

This essay continues here.