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).