On indicting and prosecuting a sitting president

19

As Special Counsel Robert S. Mueller III, according to all accounts, releases his report to the new Attorney General William P. Barr, a key question is whether the president of the United States, while in office, can be indicted and prosecuted. It’s an intriguing question, never answered by any court.

The Department of Justice inquired into this question during the Watergate affair in 1973, and concluded he alone is immune. The unique position he holds makes him the only nationally elected official with duties that no other official can perform. A president’s indictment and imprisonment may result only after his removal from office by resignation or conviction by two-thirds of the Senate, after impeachment by the House.

In 2000, department lawyers again reviewed the issue, and agreed with the 1973 study’s conclusions. They were also wary that an indictment or prosecution might violate the separation-of-powers principle if the judicial branch ruled against a president.

Most legal scholars today concur. They almost universally believe that the president is immune from indictment and prosecution unless he first resigns, or Congress removes him. Yale law professor Akhil Reed Amar has, for example, argued that the office immunizes the president from ordinary prosecution. As an appellate judge on the D.C. Circuit, now–Justice Brett Kavanaugh wrote that the only way to address a sitting president’s crimes is first to impeach him. But is this necessarily so? Are presidents above the law? Chief Justice John Marshall famously wrote in 1803 that the government of the U.S. is “a government of laws, and not of men.” This is the theory underlying the idea of “the rule of law,” that everyone in the U.S., no matter station or status, is equally subject to the law.

This argument has been offered by another law professor, Eric M. Freedman of Hofstra University. He may well stand alone, but it is clearly worth thinking about his position as the special counsel draws his inquiry to a close.

Freedman notes that “reading the Constitution to insulate an incumbent president from criminal liability would not only feed the imperial delusions to which too many high officials in this century have succumbed, but would undermine the fundamental concept of the president as an ordinary citizen temporarily exercising power delegated by We the People.”

He takes as his starting point a statement made by one of my favorite historical figures, Thomas Paine, who wrote in his great 1776 pamphlet, “Common Sense,” that “in America THE LAW IS KING [his caps]. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.”

This includes the president. Freedman first notes that Vice President Aaron Burr was indicted in New Jersey and New York after he killed Alexander Hamilton in a duel. Three years later, and still vice president, he faced an indictment and trial on charges of treason. Presidents are no different.

Second, he argues that an indictment and subsequent prosecution does not mean removal. Presidents would still conduct the business of the United States, especially in an era of electronic communication and the assistance of the vice president and all those in the White House, his cabinet, and the agencies. Here, he points to how Woodrow Wilson continued to govern after a stroke, as did Ronald Reagan after prostate surgery. Even Bill Clinton carried on during his impeachment hearings.

Indeed, a president himself could invoke the 25th Amendment, allowing him to voluntarily take a temporary leave of office.

Third, Freedman demonstrates how judges have long granted great latitude to sitting presidents when they issued them subpoenas to supply information during criminal trials involving executive-branch subordinates. He dated these from the Burr trial involving Jefferson’s testimony, all the way to Bill Clinton’s presidency.

Finally, he suggests that an indictment and even prosecution would still allow the president to claim executive privilege. But as the Supreme Court made clear in 1974 during Watergate, presidents enjoy only limited, not absolute, privilege unless it involves state secrets. Of course, a president could claim that all charges against him involve state secrets and must never be publicly revealed.

A recent report reveals the arrest and trial of a sitting president, albeit for a misdemeanor. In 1872, Officer William West, an African American policeman in the District of Columbia, arrested President Ulysses S. Grant for speeding in his horse-drawn carriage. He booked him in a police station and the next day a trial judge found a group of violators guilty of speeding and fined them $20. President Grant failed to appear.

Still, this is a precedent, if only a minor one. While the majority opinion points to the impossibility of indicting and prosecuting a sitting president, the ultimate decision is one the Supreme Court must ultimately resolve. How the justices will respond is anyone’s guess. One note: Many justices are hardy proponents of executive power.

 

Jack Fruchtman, a seasonal Aquinnah resident, is the author of “The Political Philosophy of Thomas Paine” (2009), “American Constitutional History” (2016), and an essay, “Hero or Villain? The Treason Trial of Aaron Burr” (2019).

19 COMMENTS

  1. Obama (D) – 8 yrs in office. Zero criminal indictments, zero convictions and zero prison sentences. So the next time somebody describes the Obama administration as “scandal free” they aren’t speaking wishfully, they’re simply telling the truth.
    Bush, George W. (R) – 8 yrs in office. 16 criminal indictments. 16 convictions. 9 prison sentences.
    Clinton (D) – 8 yrs in office. 2 criminal indictments. One conviction. One prison sentence. That’s right nearly 8 yrs of investigations. Tens of millions spent and 30 yrs of claiming them the most corrupt ever and there was exactly one person convicted of a crime.
    Bush, George H. W. (R) – 4 yrs in office. One indictment. One conviction. One prison sentence.
    Reagan (R) – 8 yrs in office. 26 criminal indictments. 16 convictions. 8 prison sentences.
    Carter (D) – 4 yrs in office. One indictment. Zero convictions and zero prison sentences.
    Ford (R) – 2 yrs in office. One indictment and one conviction. One prison sentence.
    Nixon (R) – 6 yrs in office. 76 criminal indictments. 55 convictions. 15 prison sentences.
    Johnson (D) – 5 yrs in office. Zero indictments. Zero convictions. Zero prison sentences.

    So, let’s see where that leaves us. In the last 53 years, Democrats have been in the Oval Office for 25 of those years, while Republicans held it for 28. In their 25 yrs in office Democrats had a total of three executive branch officials indicted with one conviction and one prison sentence. That’s one whole executive branch official convicted of a crime in two and a half decades of Democrat leadership.
    In the 28 yrs that Republicans have held office over the last 53 yrs they have had a total of (a drum roll would be more than appropriate), 120 criminal indictments of executive branch officials. 89 criminal convictions and 34 prison sentences handed down. That’s more prison sentences than years in office since 1968 for Republicans. If you want to count articles of impeachment as indictments (they aren’t really but we can count them as an action), both sides get one more. However, Clinton wasn’t found guilty while Nixon resigned and was pardoned by Ford (and a pardon carries with it a legal admission of guilt on the part of the pardoned). So those only serve to make Republicans look even worse.

    With everything going on with Trump and his people right now, it’s a safe bet Republicans are gonna be padding their numbers a bit real soon. Republicans are, and have been for my entire lifetime, the most criminally corrupt party to hold the office of the presidency.

  2. Are you saying that when Republicans are in charge they go after any and all malfeasance, but when Democrats are at the helm they do not?

    • Geno: Republicans needn’t worry themselves over malfeasance by the current administration, what with helping the administration take wealth from the middle class and giving it to the rich, we know you’re busy. Democrats have a good idea the difference between right and wrong, we got this.

  3. I’ll be more specific and less sarcastic: President Obama weaponized the DOJ, FBI, FISA court and other entities to protect himself, Hillary and others. Therefore there were no “scandals” – Valerie Jarrett would not allow them.

    • Obama told the DOJ they worked for the people, not the White House, FISA courts were determined in 1978, and FBI rules itself. Come back when you have something reality-based.

    • Geno– you respond to fact with an opinion. And your opinion is not factually correct in any way.

        • geno- yes, this is an opinion section, and your opinion is certainly allowed. I never said or implied it wasn’t. I simply stated that my opinion is that your opinion is untrue. My opinion is based on fact– no facts allowed, right ?

          • UNCLE! I should have realized that reading the continuous responses that you give to almost every opinion that, indeed, you are the “don” of all truth and the master of all fact checking on MV. A heavy mantle, for sure. Pardon my intrusion and adios.

          • Geno, compared to Trump’s malfeasance, (wrongdoing, especially by a public official) Whitewater was little more than a parking offense. The email scandal (Clinton’s, not Ivanka’s) was also investigated, and quite publicly, at that. Clinton was not ‘weaponized.’ These are my opinions, though Clinton’s testimony before Congress was fact. You can have your opinions, and should you be an apologist for Trump, well, I guess you can have your own ‘alternative facts,’ too.

        • geno– wow ! quite the response from you to my statement that you were quite entitled to your opinion. I hope I didn’t offend you by bothering to actually check to see if what I post has any bearing on reality.
          So sorry.. but I will continue to point out when people say erroneous things here. Yes, it is a heavy burden to actually check facts– thank you for recognizing that. I will ask the Flying Spaghetti Monster to bestow extra helpings of pasta upon your life.. See– I can have the unsubstantiated opinion that the FSM created the universe, you can have your opinion that Moshup’s foot created Martha’s Vineyard, or that Thor chooses when a lightning bolt comes out of the sky. A diversity of opinion is what makes this country great–

    • The Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States.

      When someone makes a request of the FISA court, it’s already an investigation. It’s not a “we think there may be a problem,” they must present sufficient evidence the individual(s) is/are working on behalf of a foreign government.

  4. The position of president has term limits on purpose, but not the rest of the swamp?
    The president will be a citizen soon and that will solve that issue, and others.
    Maybe instead of allowing the people to elect whoever they want maybe there should be more stringent rules to get on the ballot? Similar to the civil service exam?

  5. Yes but the FISA court issues a warrant based upon probable cause and good information. In the Carter Page FISA warrant it was given on faulty premise and untrue claims. Yes one can get warrant and very few have ever been turned down but the Carter Page one was a sham and manufactured. To suggest Carter Page was a spy is laughable and his life has been ruined.

    • Carter Page hasn’t the wit to understand a foreign agent isn’t necessarily a spy. A better description is acting as a lobbyist on behalf of a foreign government. The 2016 FISA application was not based on the Steele Dossier which came out 2017. As for the actual basis, that’s not public knowledge but it can be said both Dem and GOP Congressional leadership knew and approved of the investigation. Anything beyond is rumor mongering.

      • Addendum: Convictions so far are based on activities other than collusion. The evidence was sufficient without mention of collusion. Guarantees of collusion or lack of are premature but suggesting collusion is the one extension allowed of a FISA warrant has been granted and that means the court felt justified to do so.

Comments are closed.

Previous articleSurprising decision
Next articleFrom the ground up