The Second Watergate? Presidential Power and the Criminal Prosecution of the Chief Executive

By Neil Banerji (Knox College)

In February 2017, President Donald J. Trump’s request to then FBI director James Comey that he prematurely end the investigation of the national security advisor, Michael Flynn, has led to suspicions that the president may have committed an obstruction of justice. In response, the Department of Justice appointed another former FBI director Robert Mueller as special counsel to investigate “ties between the Trump campaign and Russia.”[1] According to the Constitution, would Mr. Mueller be able to indict President Trump while in office if he found evidence that the president acted in a criminal manner?  Based on the original understanding and text of the Constitution as well as the nearly unanimous vote of distinguished legal scholars, the answer is a resounding no.

Article 1, Section 3 of the Constitution states “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”[2] In other words, Section 3 of Article 1 makes it quite clear that impeachment is the proper course of action for a sitting president who behaves inappropriately. While a president can be tried through the criminal process after he leaves office, he cannot be indicted while in office since it would entail a terrible erosion of presidential power. In various memorandums, the Office of Legal Counsel observed that indicting a sitting president would seriously damage his ability to fulfill his duties/responsibilities to the nation. It also stated that the Constitution provides no “definitive guidance” on whether a sitting president can be prosecuted.[3] This assertion is inaccurate because the Constitution clearly states that a president can be indicted after (i.e. not before) his removal from office through the process of impeachment. Akhil Reed Amar, the country’s leading liberal originalist scholar and a law professor at Yale, noted that the “framers implicitly immunized a sitting president from ordinary criminal prosecution.”[4] Brett M. Kavanaugh, a federal court of appeals judge and former assistant to Kenneth Starr, wrote that an obvious conflict of interest exists if the DOJ is allowed to prosecute the president since the DOJ is a part of the executive branch. More specifically, the Attorney General cannot be expected to serve in two contradictory roles as the chief prosecutor of and legal advisor to the president.[5] While holding a sitting president accountable for misdemeanors through the traditional criminal process may seem attractive in theory, it would fail miserably in practice.

Professor Eric Hoffman, the most prominent scholar in favor for the prosecutions of sitting presidents, presents a number of arguments for why they can be indicted while in office. His first argument is that the Framers were divided about whether a sitting president could be prosecuted. Regardless of whether the Framers disagreed on the subject, the Constitution’s text, rather than the Framers’ original intentions, is the ultimate authority and law in regard to the structure of and issues involving the separation of powers system. In the end, the Constitution’s text does not mention that a sitting president can be prosecuted. Dr. Hoffman then cites the historical example of Aaron Burr’s duel with Alexander Hamilton and his subsequent indictments for murder by New York and New Jersey. However, such an example is not applicable to the question of whether a sitting president can be prosecuted since Burr was a Vice-President rather than a President. Hoffman’s main point is that high-level government officials, even federal judges, can be prosecuted based on historical precedents, so presidents should be tried for criminal conduct as well.[6] However, as even those who have investigated executive officials admit, the office of the presidency is a unique case in itself. Vice President Spiro Agnew, who was investigated by a grand jury, argued that he should face impeachment rather than a criminal prosecution. Solicitor General Robert H. Bork, who prosecuted the case, spoke for the DOJ when he replied in a brief that only sitting presidents have immunity from prosecution.[7]

The soundest argument against the criminal prosecution of a sitting president is that the president, as a nationally elected figure, should be accountable to the entire American people for misconduct rather than a mere jury with a confined jurisdiction. Impeachment is the one and only course of action for a sitting president guilty of criminal conduct because he would answer to Congress, which represents the American people. In regard to whether a president can be tried through the criminal process, Professor Amar notes that if “you’re going to undo a national election, the body that does that should have a national mandate. “Even a federal prosecution would follow only from an indictment from a grand jury sitting in one locality.”[8] In conclusion, the text of the Constitution states that a president can only be indicted after he has been removed from office through the process of impeachment. Those who claim otherwise are seriously mistaken about the fundamental nature of the separation of powers system etched in the Constitution.

 

[1] https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html

[2] Article 1, Section 3, Clauses 6 and 7.

[3] https://www.justice.gov/file/19351/download

[4] https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html

[5] Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J. 2133, 2146

(1998).

[6] Freedman, Eric M. (1999) “On Protecting Accountability,” Hofstra Law Review: Vol. 27 : Iss. 4 , Article 3. http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2059&context=hlr, https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html

[7] http://query.nytimes.com/mem/archive-free/pdf?res=990CE3D71F30E63ABC4E53DFB6678388669EDE

[8] https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html

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