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Indicting a Sitting President
By Richard M. Mathews
Precedent exists to indict a Vice President.
Vice President Aaron Burr was subject to indictments in two states while still
in office. Burr stayed out of those two states to avoid prosecution.
In the case of Spiro Agnew, Solicitor General Robert Bork filed a brief arguing
that, consistent with the Constitution, the Vice President could be subject to
indictment and criminal prosecution. While still Vice President, Agnew plea
bargained a deal in which he plead "no contest" to tax evasion. He resigned the
same day he entered his plea.
For a President, there is no clear precedent one way or another. The closest is
the case of Nixon. The Grand Jury reportedly wanted to indict Nixon.
Prosecutor Jaworski convinced them to avoid the issue of whether the President
may be indicted by naming him as an unindicted coconspirator. This was
sufficient to get a subpoena for Nixon's records including the tapes. Nixon
argued that the subpoena was invalid because he was not subject to indictment.
The Supreme Court sidestepped the indictment issue by ruling that they did not
need to answer that question in order to reach their conclusion that the
subpoena was valid. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974).
There is not a single word in the Constitution that supports a claim that the
President cannot be indicted. On the contrary, the Constitution merely says
this about impeachment:
Article I, Section 3, Clause 7:
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.
Article II, Section 4:
The President, Vice President and all Civil Officers of the United
States, shall be removed from Office on Impeachment for and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.
Note that in the above sections the Constitution treats impeachment of the
President exactly the same as impeachment of any other Officer. The only place
where the Constitution treats the President differently with respect to
impeachment is in that the Chief Justice sits as the presiding officer in the
Senate trial of a President:
Article I, Section 3, Clause 6:
The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When
the President of the United States is tried the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence of
two thirds of the Members present.
Since the Constitution treats the President identically to all other Officers,
and since there is substantial precedent for indicting other impeachable
officers including judges and members of Congress, it follows that the President
may also be indicted. Courts have specifically held that a federal judge is
indictable and may be convicted prior to removal from office. United States v.
Claiborne, 727 F.2d 842, 847-848 (9th Cir.), cert. den., 469 U.S. 829 (1984);
United States v. Hastings, 681 F.2d 706, 710-711 (11th Cir.), cert. den., 459
U.S. 1203 (1983); United States, v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.),
cert. den. sub nom., Kerner v. United States, 417 U.S. 976 (1974).
Note also that Article I, Section 3, Clause 7 brings up the issue of indictment.
It clearly indicates that those subject to impeachment are also subject to
indictment "according to Law." It in no way suggests that the law be suspended
until after the impeachment and/or Senate trial.
The New York Times reported on 1/31/99 that "Starr has concluded that he has the
constitutional authority to seek a grand jury indictment of president Clinton
before he leaves the White House in January, 2001."
Professor Eric Freedman of the Hofstra University School of Law has submitted
extensive written and oral testimony to Congress stating that a sitting
President may be indicted. He questions under what circumstances this power may
be used. See, e.g., E. Freedman, "The Law and King and the King as Law: Is a
President Immune from Criminal Prosecution Before Impeachment?" 20 Hastings L.Q.
Among Freedman's arguments in support of the position that a sitting President
can be subjected to criminal proceedings, Freedman contends that the 25th
Amendment can be used as a mechanism for having the President leave office
temporarily if a criminal trial or resulting sentence precludes the President
from performing his constitutional duties. The Amendment kicks in if the
President "is unable to discharge the powers and duties of his office," then the
25th Amendment applies (the quoted text is straight from both the 3rd and 4th
sections of the Amendment).
In practice, I do not expect the 25th Amendment to actually be applied. For all
of the arguing by Presidents that their ability to function would be impaired by
any court action, I bet all such arguing will disappear when they are faced with
the 25th Amendment. All of a sudden, an indicted President will announce that
he can discharge 100% of his duties despite the indictment. All concerns about
being preoccupied with the prosecution will disappear. Nevertheless, the 25th
Amendment is a useful argument to counter any claim that a President may be
unable to discharge his duties.
Many of the arguments that a President cannot be indicted are trumped by the
25th Amendment. If the President can be removed temporarily to deal with
criminal proceedings, the Office of the President can continue unimpeded. It is
the Office that must be protected, not the person who sits in it.
Also, many of the arguments against indictment are really arguments against
arrest. If the President remains free during criminal proceedings, he can
perform his job just fine. Criminal proceedings need not impede the President
any more than impeachment proceedings. If criminal proceedings take too much of
the President's time or if incarceration should be necessary, clearly the 25th
Amendment provides more than adequate remedy to protect the Office of the
President and the continuation of the government.
The official government position on indictment of the President is contained in
several papers circa 1974 (regarding Nixon and Agnew) and 2000 (Clinton). These
argue that the Vice President can be indicted but the President cannot. The
arguments regarding the President are weak.
First, the papers admit that "the plain terms of the [Impeachment Judgment]
Clause do not impose such a general bar to indictment or criminal trial prior to
impeachment and therefore do not, by themselves, preclude the criminal
prosecution of a sitting President."
The papers also admit that there is difficulty in assigning an implied immunity
to the President when the Constitution expressly provided immunity to Congress
in the Arrest and Speech or Debate Clauses of Article I, Section 6. If the
Founders had meant to give immunity to both the President and Congress, why did
they only expressly say so for Congress? If they only meant to define for
Congress the boundaries of a broader immunity, why did they not expressly define
the broader immunity for the President? The argument that there cannot be an
implied immunity in addition to the express immunity is not conclusive, but it
is very strong. The papers dismiss it without providing adequate justification.
The papers then go on to argue that there is an implied immunity. They invent
this from reading between lines in cases that do not apply. There is no case
that rules on the indictment of a President.
In fact, the same arguments that were used in these papers to argue that a
President cannot be indicted were used unsuccessfully to argue that Nixon's
tapes could not be subpoenaed and that Clinton could not be made to testify to a
Grand Jury. Courts overruled those arguments. No final court decision has ever
accepted as strong a principle of executive privilege as would be required by
these arguments that the President cannot be indicted.
The papers consider the possibility that the precedents that say that other
Officers can be indicted while in office do not apply to the President. The
papers end up admitting that they cannot justify such an argument.
The papers admit that a trial of the President would not be precluded due to
being "too political for the judicial process." If other Officers can be
indicted and tried fairly, so can the President.
The papers raise question of whether it is practical to have a prosecutor who is
part of the Executive Branch prosecute the President. The experience we have
developed with independent prosecutors in the cases of Nixon, Clinton, and the
CIA leak case show that this is not a problem. Nixon may have tried to fire the
prosecutor, but he did not succeed. Furthermore, if a conflict of interest
cannot be resolved, the 25th Amendment provides a resolution. If the President
and the Cabinet refuse to apply the 25th Amendment, then the prosecution may
need to be delayed -- but that does not mean that a prosecution should not be
allowed in all cases.
The papers then turn to the argument that past precedents give executive
privilege to the President that prhibit indictment. In this area, they talk
about the constitutional balance of powers. While balance of powers is an
accepted principle, there are no words in the Constitution to back it up.
Nothing in the Constitution says that one branch cannot take actions that affect
other branches. In fact, clearly, such actions are allowed. For example,
Article I, Section 9, Clause 7 gives Congress the authority to audit spending by
the other branches. Article I, Section 3, Clause 7 gives the Judicial Branch
authority to indict any impeachable Officer.
They note that Jefferson claimed to not be required to personally attend the
Burr trial. Yet it is a big step from not being required to attend someone
else's trial and not being required to attend your own. Clinton was required to
give a deposition in a mere civil matter, and then he was required to give Grand
Jury testimony. If the Burr precedent has been so weakened, it cannot be used
as an argument against indictment.
They then argue that the President is simply too busy to be bothered with a
criminal trial. This argument loses to the 25th Amendment response given above.
Perhaps the President should not be bothered with minor matters, but he most
certainly should have to answer to felonies. If that means that he "is unable
to discharge the powers and duties of his office," then the 25th Amendment applies.
The argument that the President is too busy was attempted by Clinton. The
argument was rejected by the courts.
In the ultimate example of confusing the Office of the President with the person
who holds the office, they argue that "the President is the symbolic head of the
Nation. To wound him by a criminal proceeding is to hamstring the operation of
the whole governmental apparatus, both in foreign and domestic affairs."
Nonsense. Clinton was wounded by the sex scandal, and the Presidency survived.
Nixon resigned in disgrace, and the Presidency survived.
They argue that the House and Senate are a more appropriate place for a
necessarily political trial of the President, but they ignore the fact that the
Constitution explicitly states that impeachment does not preclude indictment.
The Founders were apparently not impressed with an argument that Congress and
only Congress could be involved in such a matter.
The papers also express the concern that "A criminal trial of a sitting
President, however, would confer upon a jury of twelve the power, in effect, to
overturn this national election." Of course, we have already had a Court of
nine judges overturn a national election. In Bush v. Gore, the Court was clear
in claiming jurisdiction over choosing the President. It is inconsistent to
claim that a court cannot take jurisdiction over determining whether the
President has committed a crime.
The papers also consider that the Framers may have expected the President to be
immune from Prosecution while in office. Some statements made at the time
support such an argument (while others refute it). They seem to have felt that
the President's job was too important to allow such a distraction. While this
argument may have applied to the original Constitution, it is knocked down by
the 25th Amendment. Anything the Framers may have said is made irrelevant when
in conflict with later changes. The 25th Amendment expressly provides for the
temporary replacement of the President. The Framers had not considered this, so
their opinions on the matter cannot be determined.
The main argument that indictment of the President should not be allowed is that
it would impair a government function. Yet if it did impair a government
function, namely that the President "is unable to discharge the powers and
duties of his office," then the 25th Amendment's requirements are satisfied.
Bork argues that the 25th Amendment shows the importance of the President
because it is the only example in the Constitution of providing for the
temporary replacement of an Officer. He completely misses that by providing for
that replacement, the 25th Amendment puts the protection of the Office over the
protection of the individual. By protecting the Office, the need to protect the
individual from indictment is eliminated.
Next, the papers turn to more court cases that they claim shed light on this
issue. Since no court has ever made a relevant ruling, these arguments rely on
extrapolating from dicta found in these cases. The arguments are admitted to be
The 2000 paper oddly claims that U.S. v. Nixon supports these claims of
immunity. Nixon lost that case. It was found that he did not have sufficient
immunity to protect him from a subpoena. It is hard to extend that into an
argument that he was immune from indictment.
It is noted that U.S. v. Nixon stated that the lack of an explicit immunity
clause for the Executive in the face of an explicit immunity clause for Congress
is not necessarily dispositive on whether the Framers intended the President to
have some exclusion for confidentiality, but that is because confidentiality is
a separate issue from arrest. Arrest is restricted for members of Congress but
not for the President. Furthermore, the Court eventually found that the
President did not even have a sufficient exemption for confidentiality to block
Ultimately, the Nixon Court found that "the legitimate needs of the judicial
process may outweigh Presidential privilege" and that "[N]either the doctrine of
separation of powers, nor the need for confidentiality . . . without more, can
sustain an absolute, unqualified Presidential privilege of immunity from
judicial process under all circumstances." Such is certainly the case for a
felony indictment related to official acts and abuse of power.
In Nixon v. Fitzgerald, 457 U.S. 731 (1982) and Clinton v. Jones, 520 U.S. 681
(1997), the court found limited immunity from civil prosecution. The argument
that this immunity extends to criminal matters is defeated by the plain language
of both cases. Both cases explicitly called out that this immunity applied to
civil cases onlys. In Fitzgerald, the Court concluded, "When judicial action is
needed to serve broad public interests - as when the Court acts, not in
derogation of the separation of powers, but to maintain their proper balance,
cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public
interest in an ongoing criminal prosecution, see United States v. Nixon, supra -
the exercise of jurisdiction has been held warranted. In the case of this merely
private suit for damages based on a President's official acts, we hold it is not."
It is also worth noting that the dissent in Fitzgerald called out that giving
immunity in a civil case could mean that " criminal laws of the United States
are wholly inapplicable to the President." The dissent (signed by four
Justices) states that "I find this approach completely unacceptable." Justice
Burger responded that "It strains the meaning of the words used to say this
places a President 'above the law.' The dissents are wide of the mark to the
extent that they imply that the Court today recognizes sweeping immunity for a
President for all acts. The Court does no such thing. The immunity is limited to
civil damages claims." Together, these five Justices stand as a majority
insisting that the President is not above the law.
If Fitzgerald did not give the President immunity from criminal prosecution, the
Clinton case most certainly did not. In Clinton, the court weakened the
immunity in Fitzgerald. The majority opinion that the "President is not above
the law" still stands.
Those who claim Presidential immunity from indictment base their claim on
admitted weak arguments that are not supported by the plain text of the
Constitution. The Constitution as it now stands, with the 25th Amendment,
provides little to no protection for a President in the case of a felony indictment.
"Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice"
Hearing: Impeachment or Indictment: Is a Sitting President Subject to the
Compulsory Criminal Process? September 9, 1998. S.Hrg. 105-969. Serial No.
J-105-119. GPO Stock No. 552-070-23918-9. $11.00.
A Sitting President's Amenability to Indictment and Criminal Prosecution
Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of
Legal Counsel, Re: Amenability of the President, Vice President and other Civil
Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973)
Memorandum for the United States Concerning the Vice President's Claim of
Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand
Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President
of the United States (D. Md. 1973) (No. 73-965)