ON THE INDICTMENT OF AN AMERICAN PRESIDENT

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ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Sat Jan 05, 2019 1:40 p

UNITED STATES DEPARTMENT OF JUSTICE

A Sitting President's Amenability to Indictment and Criminal Prosecution


The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

October 16, 2000

Memorandum Opinion for the Attorney General

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.

We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.

We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.


The Department’s consideration of this issue in 1973 arose in two distinct legal contexts.

First, the Office of Legal Counsel (“ OLC” ) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office.

See 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) (“ OLC Memo” ).

The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process.

Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew.

In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution.

See 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) ('SG Brief’).

In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.

In this memorandum, we conclude that the determinations made by the Department in 1973, both in the OLC memorandum and in the Solicitor General’s brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time.


In Part I, we describe in some detail the Department’s 1973 analysis and conclusions.

In Part II, we examine more recent Supreme Court case law and conclude that it comports with the Department’s 1973 conclusions.

I.

A.


The 1973 OLC memorandum comprehensively reviewed various arguments both for and against the recognition of a sitting President’s immunity from indictment and criminal prosecution.

What follows is a synopsis of the memorandum’s analysis leading to its conclusion that the indictment or criminal prosecution of a sitting President would be unconstitutional because it would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure.

The OLC memorandum began by considering whether the plain terms of the Impeachment Judgment Clause prohibit the institution of criminal proceedings against any officer subject to that Clause prior to that officer’s conviction upon impeachment. OLC Memo at 2.

The memorandum concluded that the plain terms of the 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. Id. at 7.3

The Impeachment Judgment Clause provides:

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. U.S. Const, art. I, § 3, cl. 7.

The textual argument that the criminal prosecution of a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the “Party convicted” being liable for “Indictment, Trial, Judgment and Punishment.”

This textual argument draws support from Alexander Hamilton’s discussion of this Clause in The Federalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment. OLC Memo at 2.4

The OLC memorandum explained, however, that the use of the term "nevertheless” cast doubt on the argument that the Impeachment Judgment Clause constitutes a bar to the prosecution of a person subject to impeachment prior to the termination of impeachment proceedings. Id. at 3.

“Nevertheless” indicates that the Framers intended the Clause to signify only that prior conviction in the Senate would not constitute a bar to subsequent prosecution, not that prosecution of a person subject to impeachment could occur only after conviction in the Senate. Id.

“The purpose of this clause thus is to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argument.” Id.5

The OLC memorandum further explained that if the text of the Impeachment Judgment Clause barred the criminal prosecution of a sitting President, then the same text would necessarily bar the prosecution of all other “civil officers” during their tenure in office.

The constitutional practice since the Founding, however, has been to prosecute and even imprison civil officers other than the President while they were still in office and prior to their impeachment. See, e.g., id. at 4—7 (cataloguing cases).

In addition, the conclusion that the Impeachment Judgment Clause constituted a textual bar to the prosecution of a civil officer prior to the termination of impeachment proceedings “would create serious practical difficulties in the administration of the criminal law.” Id. at 7.

Under such an interpretation, a prosecution of a government official could not proceed until a court had resolved a variety of complicated threshold constitutional questions:

These include, first, whether the suspect is or was an officer of the United States within the meaning of Article II, section 4 of the Constitution, and second, whether the offense is one for which he could be impeached.

Third, there would arise troublesome corollary issues and questions in the field of conspiracies and with respect to the limitations of criminal proceedings. Id.

The memorandum concluded that “(a)n interpretation of the Constitution which injects such complications into criminal proceedings is not likely to be a correct one.” Id.

As a result, the Impeachment Judgment Clause could not itself be said to be the basis for a presidential immunity from indictment or criminal trial.

2.

The OLC memorandum next considered “whether an immunity of the President from criminal proceedings can be justified on other grounds, in particular the consideration that the President’s subjection to the jurisdiction of the courts would be inconsistent with his position as head of the Executive branch.” OLC Memo at 18.

In examining this question, the memorandum first considered the contention that the express, limited immunity conferred upon members of Congress by the Arrest and Speech or Debate Clauses of Article I, Section 6 of the Constitution necessarily precludes the conclusion that the President enjoys a broader, implicit immunity from criminal process.

One might contend that the Constitution’s grant of a limited immunity to members of Congress reflects a determination that federal officials enjoy no immunity absent a specific textual grant.

The OLC memorandum determined that this contention was not “necessarily conclusive.” OLC Memo at 18.

“(I)t could be said with equal validity that Article I, sec. 6, clause 1 does not confer any immunity upon the members of Congress, but rather limits the complete immunity from judicial proceedings which they otherwise would enjoy as members of a branch co-equal with the judiciary.” Id.

Thus, in the absence of a specific textual provision withdrawing it, the President would enjoy absolute immunity.

In addition, the textual silence regarding the existence of a presidential immunity from criminal proceedings may merely reflect the fact that it “may have been too well accepted to need constitutional mention (by analogy to the English Crown), and that the innovative provision was the specified process of impeachment extending even to the President.” Id. at 19.

Finally, the historical evidence bearing on whether or not an implicit presidential immunity from judicial process was thought to exist at the time of the Founding was ultimately “not conclusive.” Id. at 20.

3.

The OLC memorandum next proceeded to consider whether an immunity from indictment or criminal prosecution was implicit in the doctrine of separation of powers as it then stood. OLC Memo at 20.

After reviewing judicial precedents and an earlier OLC opinion, id. at 21-24, the OLC memorandum concluded that “under our constitutional plan it cannot be said either that the courts have the same jurisdiction over the President as if he were an ordinary citizen or that the President is absolutely immune from the jurisdiction of the courts in regard to any kind of claim.” Id. at 24.

As a consequence, “(t)he proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities and functions of the Presidency.” Id.

The OLC memorandum separated into two parts the determination of the proper constitutional balance with regard to the indictment or criminal prosecution of a sitting President.

First, the memorandum discussed whether any of the considerations that had lead to the rejection of the contention that impeachment must precede criminal proceedings for ordinary civil officers applied differently with respect to the President in light of his position as the sole head of an entire branch of government. Id.

Second, the memorandum considered “whether criminal proceedings and execution of potential sentences would improperly interfere with the President’s constitutional duties and be inconsistent with his status.” Id.

a.

The OLC memorandum’s analysis of the first of these questions began with a consideration of whether the nature of the defendant’s high office would render such a trial “too political for the judicial process.” OLC Memo at 24.

The memorandum concluded that the argument was, as a general matter, unpersuasive.

Nothing about the criminal offenses for which a sitting President would be tried would appear to render the criminal proceedings “too political.”

The only kind of offenses that could lead to criminal proceedings against the President would be statutory offenses, and “their very inclusion in the Penal Code is an indication of a congressional determination that they can be adjudicated by a judge and jury.” Id.

In addition, there would not appear to be any “weighty reason to differentiate between the President and other officeholders” in regard to the “political” nature of such a proceeding “unless special separation of powers based interests can be articulated with clarity.” Id. at 25.

The memorandum also considered but downplayed the potential concern that criminal proceedings against the President would be “too political” either because “the ordinary courts may not be able to cope with powerful men” or because no fair trial could be provided to the President. Id.

Although the fear that courts would be unable to subject powerful officials to criminal process “arose in England where it presumably was valid in feudal time,” “(I)n the conditions now prevailing in the United States, little weight is to be given to it as far as most officeholders are concerned.” Id.

Nor did the memorandum find great weight in the contention that the President, by virtue of his position, could not be assured a fair criminal proceeding.

To be sure, the memorandum continued, it would be “extremely difficult” to assure a sitting President a fair trial, id., noting that it “might be impossible to impanel a neutral jury.” Id.

However, “there is a serious ‘fairness’ problem whether the criminal trial precedes or follows impeachment.” Id. at 26.

And “the latter unfairness is contemplated and accepted in the impeachment clause itself, thus suggesting that the difficulty in impaneling a neutral jury should not be viewed, in itself, an absolute bar to indictment of a public figure.” Id.

The OLC memorandum next considered whether, in light of the President’s unique powers to supervise executive branch prosecutions and assert executive privilege, the constitutional balance generally should favor the conclusion that a sitting President may not be subjected to indictment or criminal prosecution. Id. at 26.

According to this argument, the possession of these powers by the President renders the criminal prosecution of a sitting President inconsistent with the constitutional structure.

It was suggested that such powers, which relate so directly to the President’s status as a law enforcement officer, are simply incompatible with the notion that the President could be made a defendant in a criminal case.

The memorandum did not reach a definitive conclusion on the weight to be accorded the President’s capacity to exercise such powers in calculating the constitutional balance, although it did suggest that the President’s possession of such powers pointed somewhat against the conclusion that the chief executive could be subject to indictment or criminal prosecution during his tenure in office.

In setting forth the competing considerations, the memorandum explained that, on the one hand, “it could be argued that a President’s status as defendant in a criminal case would be repugnant to his office of Chief Executive, which includes the power to oversee prosecutions."

"In other words, just as a person cannot be judge in his own case, he cannot be prosecutor and defendant at the same time.” Id.

This contention “would lose some of its persuasiveness where, as in the Watergate case, the President delegates his prosecutorial functions to the Attorney General, who in turn delegates them [by regulation] to a Special Prosecutor.” Id.

At the same time, the status of the Watergate Special Prosecutor was somewhat uncertain, as “none of these delegations is, or legally can be, absolute or irrevocable.” Id.

The memorandum suggested, therefore, that even in the Watergate matter there remained the structural anomaly of the President serving as the chief executive and the defendant in a federal prosecution brought by the executive branch.

The OLC memorandum also considered the degree to which a criminal prosecution of a sitting President is incompatible with the notion that the President possesses the power to assert executive privilege in criminal cases.

The memorandum suggested that “the problem of Executive privilege may create the appearance of so serious a conflict of interest as to make it appear improper that the President should be a defendant in a criminal case.” Id.

“If the President claims the privilege he would be accused of suppressing evidence unfavorable to him."

"If he fails to do so the charge would be that by making available evidence favorable to him he is prejudicing the ability of future Presidents to claim privilege.”
Id.

Ultimately, however, the memorandum did not conclude that the identification of the possible incompatibility between the exercise of certain executive powers and the criminal prosecution of a sitting President sufficed to resolve the constitutional question whether a sitting President may be indicted or tried.

b.

The OLC memorandum then proceeded to the second part of its constitutional analysis, examining whether criminal proceedings against a sitting President should be barred by the doctrine of separation of powers because such proceedings would “unduly interfere in a direct or formal sense with the conduct of the Presidency.” OLC Memo at 27.

It was on this ground that the memorandum ultimately concluded that the indictment or criminal prosecution of a sitting President would be unconstitutional.

As an initial matter, the memorandum noted that in the Burr case, see United States v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694), President Jefferson claimed a privilege to be free from attending court in person. OLC Memo at 27.

Moreover, “it is generally recognized that high government officials are excepted from the duty to attend court in person in order to testify,” and “(t)his privilege would appear to be inconsistent with a criminal prosecution which necessarily requires the appearance of the defendant for pleas and trial, as a practical matter.” Id.

The memorandum noted, however, that the privilege against personal appearance was “only the general rule.” Id.

The memorandum then suggested that the existence of such a general privilege was not, by itself, determinative of the question whether a sitting President could be made a defendant in a criminal proceeding.

“Because a defendant is already personally involved in a criminal case (if total immunity be laid aside), it may be questioned whether the normal privilege of high officials not to attend court in person applies to criminal proceedings in which the official is a defendant.” Id.

Even though the OLC memorandum suggested that the existence of a general privilege against personal appearance was not determinative, the memorandum did conclude that the necessity of the defendant’s appearance in a criminal trial was of great relevance in determining how the proper constitutional balance should be struck.

By virtue of the necessity of the defendant’s appearance, the institution of criminal proceedings against a sitting President "would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.” Id. at 28.

Moreover, “(d)uring the past century the duties of the Presidency . . . have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution.” Id.

Finally, “under our constitutional plan as outlined in Article I, sec. 3, only the Congress by the formal process of impeachment, and not a court by any process should be accorded the power to interrupt the Presidency or oust an incumbent.” Id.

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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Sat Jan 05, 2019 1:40 p

UNITED STATES DEPARTMENT OF JUSTICE

A Sitting President's Amenability to Indictment and Criminal Prosecution


October 16, 2000

Memorandum Opinion for the Attorney General, continued …

The memorandum rejected the argument that such burdens should not be thought conclusive because even an impeachment proceeding that did not result in conviction might preclude a President from performing his constitutionally assigned duties in the course of defending against impeachment.

In contrast to the risks that would attend a criminal proceeding against a sitting President, “this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process.” Id.

As a consequence of the personal attention that a defendant must, as a practical matter, give in defending against a criminal proceeding, the memorandum concluded that there were particular reasons rooted in separation of powers concerns that supported the recognition of an immunity for the President while in office.

With respect to the physical disabilities alone imposed by criminal prosecution, "in view of the unique aspects of the Office of the President, criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his official duties that it would amount to an incapacitation.”
Id. at 29.

To be sure, the concern that criminal proceedings would render a President physically incapable of performing constitutionally assigned functions would not be “quite as serious regarding minor offenses leading to a short trial and a fine.” Id.

But “in more serious matters, i.e., those which could require the protracted personal involvement of the President in trial proceedings, the Presidency would be derailed if the President were tried prior to removal.” Id.

The OLC memorandum also explained that the “non-physical yet practical interferences, in terms of capacity to govern” that would attend criminal proceedings against a sitting President must also be considered in the constitutional balance of competing institutional interests. Id.

In this regard, the memorandum explained 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.” Id. at 30.

In light of the conclusion that an adjudication of the President’s criminal culpability would be uniquely destabilizing to an entire branch of government, the memorandum suggested that “special separation of powers based interests can be articulated with clarity” against permitting the ordinary criminal process to proceed.
Id. at 25.

By virtue of the impact that an adjudication of criminal culpability might have, a criminal proceeding against the President is, in some respects, necessarily political in a way that criminal proceedings against other civil officers would not be.

In this respect, it would be “incongruous” for a “jury of twelve” to undertake the “unavoidably political” task of rendering judgment in a criminal proceeding against the President.
Id. at 30.

“Surely, the House and Senate, via impeachment, are more appropriate agencies for such a crucial task, made unavoidably political by the nature of the ‘defendant.’” Id.

The memorandum noted further that “(t)he genius of the jury trial” was to provide a forum for ordinary people to pass on “matters generally within the experience or contemplation of ordinary, everyday life.” Id. at 31.

The memorandum therefore asked whether it would “be fair to such an agency to give it responsibility for an unavoidably political judgment in the esoteric realm of the Nation’s top Executive.” Id.

In accord with this conclusion about the propriety of leaving such matters to the impeachment process, the memorandum noted that “(u)nder our developed constitutional order, the presidential election is the only national election, and there is no effective substitute for it.” Id. at 32.

A criminal trial of a sitting President, however, would confer upon a jury of twelve the power, in effect, to overturn this national election.


“The decision to terminate this mandate . . . is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution.” Id.

In addition, the impeachment process is better suited to the task than is a criminal proceeding because appeals from a criminal trial could “drag out for months.” Id. at 31.

By contrast, “(t)he whole country is represented at the [impeachment] trial, there is no appeal from the verdict, and removal opens the way for placing the political system on a new and more healthy foundation.” Id.

4.

The OLC memorandum concluded its analysis by addressing “(a) possibility not yet mentioned,” which would be “to indict a sitting President but defer further proceedings until he is no longer in office.” OLC Memo at 29.

The memorandum stated that “(f)rom the standpoint of minimizing direct interruption of official duties — and setting aside the question of the power to govern — this procedure might be a course to be considered.” Id.

The memorandum suggested, however, that “an indictment hanging over the President while he remains in office would damage the institution of the Presidency virtually to the same extent as an actual conviction.” Id.

In addition, there would be damage to the executive branch “flowing from unrefuted charges.” Id.

Noting that “the modem Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries,” the memorandum stated that “(t)he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.” Id. at 30.

The memorandum acknowledged that, “it is arguable that . . . it would be possible to indict a President, but defer trial until he was out of office, without in the meantime unduly impeding the power to govern, and the symbolism on which so much of his real authority rest.” Id. at 31.

But the memorandum nevertheless concluded that:

(g)iven the realities of modem politics and mass media, and the delicacy of the political relationships which surround the Presidency both foreign and domestic, there would be a Russian roulette aspect to the course of indicting the President but postponing trial, hoping in the meantime that the power to govern could survive. Id.

In light of the effect that an indictment would have on the operations of the executive branch, “an impeachment proceeding is the only appropriate way to deal with a President while in office.” Id. at 32.

In reaching this conclusion regarding indictment, the memorandum noted that there are “certain drawbacks,” such as the possibility that the statute of limitations might run, thereby resulting in “a complete hiatus in criminal liability.” Id.

As the statute of limitations is ultimately within the control of Congress, however, the memorandum’s analysis concluded as follows: “We doubt . . . that this gap in the law is sufficient to overcome the arguments against subjecting a President to indictment and criminal trial while in office.” Id.

B.

On October 5, 1973, less than two weeks after OLC issued its memorandum, Solicitor General Robert Bork filed a brief in the United States District Court for the District of Maryland that addressed the question whether it would be constitutional to indict or criminally try a sitting President.

Then-Vice President Agnew had moved to enjoin, principally on constitutional grounds, grand jury proceeding against him. See SG Brief at 3.

In response to this motion, Solicitor General Bork provided the court with a brief that set forth “considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.” Id.10

1.

As had the OLC memorandum, the Solicitor General’s brief began by noting that “(t)he Constitution provides no explicit immunity from criminal sanctions for any civil officer.” SG Brief at 4.

Indeed, the brief noted that the only textual grant of immunity for federal officials appears in the Arrest and Speech or Debate Clauses of Article I, Section 6.

In referring to these clauses, the brief rejected the suggestion that the immunities set forth there could be understood to be a partial withdrawal from members of Congress of a broader implicit immunity that all civil officers, including the President, generally enjoyed; indeed, “(t)he intent of the Framers was to the contrary.” SG Brief at 5.11

In light of the textual omission of any express grant of immunity from criminal process for civil officers generally, “it would require a compelling constitutional argument to erect such an immunity for a Vice President.” Id.

In considering whether such a compelling argument could be advanced, the brief distinguished the case of the President from that of the Vice President.

Although the Vice President had suggested that the Impeachment Judgment Clause itself demonstrated that "impeachment must precede indictment" for all civil officers, the records of the debates of the constitutional convention did not support that conclusion. Id.

The Solicitor General argued, in accord with the OLC memorandum, that the “principal operative effect” of the Impeachment Judgment Clause "is solely the preclusion of pleas of double jeopardy in criminal prosecutions following convictions upon impeachments.” Id. at 7.

In any event, the discussion of the Impeachment Judgment Clause in the convention focused almost exclusively on the Office of the President, and “the Framers did not debate the question whether impeachment generally must precede indictment.” Id. at 6.

To the extent that the convention did debate the timing of impeachment relative to indictment, the brief explained, the convention records “show that the Framers contemplated that this sequence should be mandatory only as to the President.” Id.

Moreover, the remarks contained in those records “strongly suggest an understanding that the President, as Chief Executive, would not be subject to the ordinary criminal process.” Id.

The Framers’ “assumption that the President would not be subject to criminal process” did not, however, rest on a general principle applicable to all civil officers. Id.

Instead, the assumption was “based upon the crucial nature of his executive powers.” Id.

As the brief stated:

The President’s immunity rests not only upon the matters just discussed but also upon his unique constitutional position and powers ....

There are substantial reasons, embedded not only in the constitutional framework but in the exigencies of government, for distinguishing in this regard between the President and all lesser officers including the Vice President.
Id. at 7.

2.

In explaining why, as an initial matter, the Vice President could be indicted and tried while still in office, the brief argued that indictment would not effect the de facto removal of that officer. SG Brief at 11.

“(I)t is clear from history that a criminal indictment, or even trial and conviction, does not, standing alone, effect the removal of an impeachable federal officer.” Id. at 11-12.

The brief noted the past constitutional practice of indicting and even convicting federal judges during their tenure, as well as the fact that Vice President Aaron Burr “was subject to simultaneous indictment in two states while in office, yet he continued to exercise his constitutional responsibilities until the expiration of his term.” Id. at 12.

“Apparently, neither Burr nor his contemporaries considered him constitutionally immune from indictment."

"Although counsel for the Vice President asserted that Burr’s indictments were ‘allowed to die,’ that was merely because ‘Burr thought it best not to visit either New York or New Jersey.’” Id. at 12 n* (citations omitted).

The brief therefore determined that “(c)ertainly it is clear that criminal indictment, trial, and even conviction of a Vice President would not, ipso facto, cause his removal; subjection of a Vice President to the criminal process therefore does not violate the exclusivity of the impeachment power as the means of his removal from office.” Id. at 13.

The brief did conclude, however, that the “ structure of the Constitution” precluded the indictment of the President. Id. at 15.

In framing the inquiry into whether considerations of constitutional structure supported the recognition of an immunity from criminal process for certain civil officers, the brief explained that the “Constitution is an intensely practical document and judicial derivation of powers and immunities is necessarily based upon consideration of the document’s structure and of the practical results of alternative interpretations.” Id.

As a consequence, (t)he real question underlying the issue of whether indictment of any particular civil officer can precede conviction upon impeachment— and it is constitutional in every sense because it goes to the heart of the operation of government — is whether a governmental function would be seriously impaired if a particular civil officer were liable to indictment before being tried on impeachment.
Id. at 15-16.

Given that the constitutional basis for the recognition of a civil officer’s immunity from criminal process turned on the resolution of this question, the answer “must necessarily vary with the nature and functions of the office involved.” Id. at 16.

The brief then proceeded to consider the consequences that criminal prosecutions would have on the performance of the constitutional functions that are the responsibility of various civil officers.

As a matter of constitutional structure, Article III judges should enjoy no constitutional immunity from the criminal process because while a “judge may be hampered in the performance of his duty when he is on trial for a felony . . . his personal incapacity in no way threatens the ability of the judicial branch to continue to function effectively.” Id. at 16.

Similarly, no such immunity should be recognized for members of Congress.

The limited immunity in the Arrest and Speech or Debate Clauses reflected a recognition that, although the functions of the legislature are not lightly to be interfered with, the public interest in the expeditious and even-handed administration of the criminal law outweighs the cost imposed by the incapacity of a single legislator.

Such incapacity does not seriously impair the functioning of Congress. Id. at 16-17.

The brief argued that the same structural considerations that counseled against the recognition of an immunity from criminal process for individual judges or legislators also counseled against the recognition of such an immunity for the Vice President:

Although the office of the Vice Presidency is of course a high one, it is not indispensable to the orderly operation of government.

There have been many occasions in our history when the nation lacked a Vice President, and yet suffered no ill consequences.

And, as has been discussed above, at least one Vice President successfully fulfilled the responsibilities of his office while under indictment in two states. Id. al 18 (citation omitted).

The brief noted that the Vice President had only three constitutional functions: to replace the President in certain extraordinary circumstances; to make, in certain extraordinary circumstances, a written declaration of the President’s inability to discharge the powers and duties of his office; and to preside over the Senate and cast the deciding vote in the case of a tie in that body. Id. at 19.

None of these “constitutional functions is substantially impaired by [the Vice President’s] liability to the criminal process.” Id.

3

The Solicitor General’s brief explained that recognition of presidential immunity from criminal process, in contrast to the vice presidential immunity, was compelled by a consideration of the constitutional structure.

After noting that “(a)lmost all legal commentators agree . . . that an incumbent President must be removed from office through conviction upon an impeachment before being subject to the criminal process,” SG Brief at 17, the brief repeated its determination that the Framers assumed “that the nation’s Chief Executive, responsible as no other single officer is for the affairs of the United States, would not be taken from duties that only he can perform unless and until it is determined that he is to be shorn of those duties by the Senate.” Id.

A proper understanding of the constitutional structure reflects this shared assumption; in this regard it is “noteworthy that the President is the only officer of government for whose temporary disability the Constitution provides procedure to qualify a replacement.” Id. at 18.

This provision constituted a textual recognition “that the President is the only officer of government for whose temporary disability while in office incapacitates an entire branch of government.”
Id.

Finally, the brief noted that the conclusion that the Framers assumed that the President would enjoy an immunity from criminal process was supported by other considerations of constitutional structure beyond the serious interference with the capacity of the executive branch to perform its constitutional functions.

The “Framers could not have contemplated prosecution of an incumbent President because they vested in him complete power over the execution of the laws, which includes, of course, the power to control prosecutions.” Id. at 20.

C.

The foregoing review demonstrates that, in 1973, the Department applied a consistent approach in analyzing the constitutional question whether a sitting President may be subject to indictment and criminal prosecution.

Both the OLC memorandum and the Solicitor General’s brief recognized that the President is not above the law, and that he is ultimately accountable for his misconduct that occurs before, during, and after his service to the country.

Each also recognized, however, that the President occupies a unique position within our constitutional order.

The Department concluded that neither the text nor the history of the Constitution ultimately provided dispositive guidance in determining whether a President is amenable to indictment or criminal prosecution while in office.

It therefore based its analysis on more general considerations of constitutional structure.

Because of the unique duties and demands of the Presidency, the Department concluded, a President cannot be called upon to answer the demands of another branch of the government in the same manner as can all other individuals.

The OLC memorandum in particular concluded that the ordinary workings of the criminal process would impose burdens upon a sitting President that would directly and substantially impede the executive branch from performing its constitutionally assigned functions, and the accusation or adjudication of the criminal culpability of the nation’s chief executive by either a grand jury returning an indictment or a petit jury returning a verdict would have a dramatically destabilizing effect upon the ability of a coordinate branch of government to function.


The Department therefore concluded in both the OLC memorandum and the Solicitor General’s brief that, while civil officers generally may be indicted and criminally prosecuted during their tenure in office, the constitutional structure permits a sitting President to be subject to criminal process only after he leaves office or is removed therefrom through the impeachment process.

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thelivyjr
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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Sat Jan 05, 2019 1:40 p

UNITED STATES DEPARTMENT OF JUSTICE

A Sitting President's Amenability to Indictment and Criminal Prosecution


October 16, 2000

Memorandum Opinion for the Attorney General, continued …

II.

Since the Department set forth its constitutional analysis in 1973, the Supreme Court has decided three cases that are relevant to whether a sitting President may be subject to indictment or criminal prosecution.

United States v. Nixon, 418 U.S. 683 (1974), addressed whether the President may assert a claim of executive privilege in response to a subpoena in a criminal case that seeks records of communications between the President and his advisors.

Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997), both addressed the extent to which the President enjoys a constitutional immunity from defending against certain types of civil litigation, with Fitzgerald focusing on official misconduct and Jones focusing primarily on misconduct “unrelated to any of his official duties as President of the United States and, indeed, occurr[ing] before he was elected to that office.” Id. at 686.

None of these cases directly addresses the questions whether a sitting President may be indicted, prosecuted, or imprisoned.

We would therefore hesitate before concluding that judicial statements made in the context of these distinct constitutional disputes would suffice to undermine the Department’s previous resolution of the precise constitutional question addressed here.

In any event, however, we conclude that these precedents are largely consistent with the Department’s 1973 determinations that (1) the proper doctrinal analysis requires a balancing between the responsibilities of the President as the sole head of the executive branch against the important governmental purposes supporting the indictment and criminal prosecution of a sitting President; and (2) the proper balance supports recognition of a temporary immunity from such criminal process while the President remains in office.

Indeed, United States v. Nixon and Nixon v. Fitzgerald recognized and embraced the same type of constitutional balancing test anticipated in this Office’s 1973 memorandum.

Clinton v. Jones, which held that the President is not immune from at least certain judicial proceedings while in office, even if those proceedings may prove somewhat burdensome, does not change our conclusion in 1973 and again today that a sitting President cannot constitutionally be indicted or tried.

A.

1.


In United States v. Nixon, the Court considered a motion by President Nixon to quash a third-party subpoena duces tecum directing the President to produce certain tape recordings and documents concerning his conversations with aides and advisers. 418 U.S. at 686.

The Court concluded that the subpoena, which had been issued upon motion by the Watergate Special Prosecutor in connection with the criminal prosecution of persons other than the President, satisfied the standards of Rule 17(c) of Federal Rules of Criminal Procedure.

The Court therefore proceeded to consider the claim “that the subpoena should be quashed because it demands ‘confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.’” Id. at 703 (citation omitted).

In assessing the President’s constitutional claim of privilege, the Court first considered the relevant evidence of the Framers’ intent and found that it supported the President’s assertion of a constitutional interest in confidentiality. Id. at 705 n.15.

The Court also rejected the suggestion that the textual omission of a presidential privilege akin to the congressional privilege set forth in the Arrest and Speech or Debate Clauses was “dispositive” of the President’s claim. Id. at 705 n.16.

Considering the privilege claim in light of the constitutional structure as a whole, the Court concluded that,

(w)hatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.

Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
Id. at 705-06 (footnote omitted).

Such a privilege must be recognized, the Court said, in light of “the importance of . . . confidentiality of Presidential communications in performance of the President’s responsibilities.” Id. at 711.

The interest in the confidentiality of Presidential communications was “weighty indeed and entitled to great respect.” Id. at 712.

The Court next considered the extent to which that interest would be impaired by presidential compliance with a subpoena.

The Court concluded that it was quite unlikely that the failure to recognize an absolute privilege for confidential presidential communications against criminal trial subpoenas would, in practical consequence, undermine the constitutional interest in the confidentiality of such communications.

“(W)e cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.” Id.

Finally, the Court balanced against the President’s interest in maintaining the confidentiality of his communications “(t)he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” Id. at 707.

The Court predicated its conclusion on the determination that “(t)he need to develop all relevant facts in the adversary system is both fundamental and comprehensive."

"The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” Id. at 709.

The assessment of these competing interests led the Court to conclude that “the legitimate needs of the judicial process may outweigh Presidential privilege,” id. at 707, and it therefore determined that it was “necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.” Id.

Here, the Court weighed the President’s constitutional interest in confidentiality, see id. at 707-08, against the nation’s “historic commitment to the rule of law,” id. at 708, and the requirement of “the fair administration of criminal justice.” Id. at 713.

The Court ultimately concluded that the President’s generalized interest in confidentiality did not suffice to justify a privilege from all criminal subpoenas, although it noted that a different analysis might apply to a privilege based on national security interests. Id. at 706.

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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Sat Jan 05, 2019 1:40 p

UNITED STATES DEPARTMENT OF JUSTICE

A Sitting President's Amenability to Indictment and Criminal Prosecution


October 16, 2000

Memorandum Opinion for the Attorney General, continued …

In Nixon v. Fitzgerald, the Supreme Court considered a claim by former President Nixon that he enjoyed an absolute immunity from a former government employee’s suit for damages for President Nixon’s allegedly unlawful official conduct while in office.

The Court endorsed a rule of absolute immunity, concluding that such immunity is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” 457 U.S. at 749.

The Court reviewed various statements by the Framers and early commentators, finding them consistent with the conclusion that the Constitution was adopted on the assumption that the President would enjoy an immunity from damages liability for his official actions. Id. at 749, 751 n.31.

The Court once again rejected the contention that the textual grant of a privilege to members of Congress in Article I, Section 6 precluded the recognition of an implicit privilege on behalf of the President. See id. at 750 n.31.

But as in United States v. Nixon, the Court found that “the most compelling arguments arise from the Constitution’s separation of powers and the Judiciary’s historic understanding of that doctrine,” Id. at 752 n.31.

It emphasized that “(t)he President occupies a unique position in the constitutional scheme . . . as the chief constitutional officer of the Executive Branch.” Id. at 749-50.

Although other government officials enjoy only qualified immunity from civil liability for their official actions, “(b)ecause of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Id. at 751.

Such lawsuits would be likely to occur in considerable numbers since the "President must concern himself with matters likely to ‘arouse the most intense feelings.’” Id. at 752.

Yet, the Court noted, “it is in precisely such cases that there exists the greatest public interest in providing an official ‘the maximum ability to deal fearlessly and impartially’ with the duties of his office.” Id. (citations omitted).

The Court emphasized that the “visibility” of the President’s office would make him “an easily identifiable target for suits for civil damages,” and that
“(c)ognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”
Id. at 753.

The Court next examined whether the constitutional interest in presidential immunity from civil damages arising from the performance of official duties was outweighed by the governmental interest in providing a forum for the resolution of damages actions generally, and actions challenging the legality of official presidential conduct in particular.

The Court concluded that it was appropriate to consider the “President’s constitutional responsibilities and status as factors counseling judicial deference and restraint.” Id. at 753.

As the Court explained,

(I)t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.

But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.
Id. at 753-54 (citations omitted).

In performing this balancing, the Court noted that recognition of a presidential immunity from such suits “will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive,” in light of other mechanisms creating “incentives to avoid misconduct” (including impeachment). Id. at 757.

The Court concluded that the constitutional interest in ensuring the President’s ability to perform his constitutional functions outweighed the competing interest in permitting civil actions for unlawful official conduct to proceed.

3.

In Clinton v. Jones, the Court declined to extend the immunity recognized in Fitzgerald to civil suits challenging the legality of a President’s unofficial conduct.

In that case, the plaintiff sought to recover compensatory and punitive damages for alleged misconduct by President Clinton occurring before he took federal office.

The district court denied the President’s motion to dismiss based on a constitutional claim of temporary immunity and held that discovery should go forward, but granted a stay of the trial until after the President left office.

The court of appeals vacated the order staying the trial, while affirming the denial of the immunity-based motion to dismiss.

The Supreme Court affirmed, permitting the civil proceedings to go forward against the President while he still held office.

In considering the President’s claim of a temporary immunity from suit, the Court first distinguished Nixon v. Fitzgerald, maintaining that “(t)he principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.” Clinton v. Jones, 520 U.S. at 692-93.

The point of immunity for official conduct, the Court explained, is to “enable such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.” Id. at 693.

But “(t)his reasoning provides no support for an immunity for unofficial conduct.” Id. at 694.

Acknowledging Fitzgerald's additional concern that “‘(b)ecause of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government,’” the Court treated this prior statement as dictum because “(I)n context . . . it is clear that our dominant concern” had been the chilling effect that liability for official conduct would impose on the President’s performance of his official duties. Id. at 694 n.19 (quoting Nixon v. Fitzgerald, 457 U.S. at 751).

After determining that the historical evidence of the Framers’ understanding of presidential immunity was either ambiguous or conflicting and thus could not by itself support the extension of presidential immunity to unofficial conduct, see id. at 695-97, the Court considered the President’s argument that the “text and structure” of the Constitution supported his claim to a temporary immunity.

The Court accepted his contention that “the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch,” id. at 697-98, and conceded that the powers and obligations conferred upon a single President suggest that he occupies a “‘unique position in the constitutional scheme.’” Id. at 698 (quoting Nixon v. Fitzgerald, 457 U.S. at 749).

But “(I)t does not follow . . . that separation-of-powers principles would be violated by allowing this action to proceed.” Id. at 699.

Rather than claiming that allowing the civil suit would either aggrandize judicial power or narrow any constitutionally defined executive powers, the President argued that, as an inevitable result of the litigation, “burdens will be placed on the President that will hamper the performance of his official duties,” id. at 701, both in the Jones case and others that might follow.

The Court first rejected the factual premise of the President’s claim, asserting that the President’s “predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case.” Id. at 702.

“As for the case at hand,” the Court continued, “if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Id.

The Court emphasized at the outset that it was not “confront(ing) the question whether a court may compel the attendance of the President at any specific time or place,” id. at 691, and it “assume(d) that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person.” Id. at 691-92.

Moreover, the Court explained, “even quite burdensome interactions” between the judicial and executive branches do not “necessarily rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.” Id.; see also id. at 703 (“ that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution”).

Noting that courts frequently adjudicate civil suits challenging the legality of official presidential actions, the Court also observed that courts occasionally have ordered Presidents to provide testimony and documents or other materials. Id. at 703-05 (citing United States v. Nixon as an example).

By comparison, the Court asserted, “(t)he burden on the President’s time and energy that is a mere byproduct of [the power to determine the legality of his unofficial conduct through civil litigation] surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.” Id. at 705.

Finally, the Court agreed with the court of appeals that the district court abused its discretion by invoking its equitable powers to defer any trial until after the President left office, even while allowing discovery to continue apace.

The Court observed that such a “lengthy and categorical stay takes no account whatever of the respondent’s interest in bringing the case to trial,” id. at 707, in particular the concern that delay “would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.”
Id. at 707-08.

On the other hand, continued the Court, assuming careful trial management, “there is no reason to assume that the district courts will be either unable to accommodate the President’s [scheduling] needs or unfaithful to the tradition — especially in matters involving national security — of giving ‘the utmost deference to Presidential responsibilities.’” Id. at 709 (quoting United States v. Nixon, 418 U.S. at 710-11).

On this basis, the Court determined that a stay of any trial pending the President’s leaving office was not supported by equitable principles.

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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Sat Jan 05, 2019 1:40 p

UNITED STATES DEPARTMENT OF JUSTICE

A Sitting President's Amenability to Indictment and Criminal Prosecution


October 16, 2000

Memorandum Opinion for the Attorney General, continued …

B.

We believe that these precedents, United States v. Nixon, Nixon v. Fitzgerald, and Clinton v. Jones, are consistent with the Department’s analysis and conclusion in 1973.

The cases embrace the methodology, applied in the OLC memorandum, of constitutional balancing.

That is, they balance the constitutional interests underlying a claim of presidential immunity against the governmental interests in rejecting that immunity.

And, notwithstanding Clinton's conclusion that civil litigation regarding the President’s unofficial conduct would not unduly interfere with his ability to perform his constitutionally assigned functions, we believe that Clinton and the other cases do not undermine our earlier conclusion that the burdens of criminal litigation would be so intrusive as to violate the separation of powers.

1.

The balancing analysis relied on in the 1973 OLC memorandum has since been adopted as the appropriate mode of analysis by the Court.

In 1996, this Office summarized the principles of analysis for resolving separation of powers issues found in the Court’s recent cases.

See The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 133-35 (1996).

As noted there, "‘the proper inquiry focuses on the extent to which [a challenged act] prevents the Executive Branch from accomplishing its constitutionally assigned functions.’” Id. at 133 (quoting Administrator of General Services, 433 U.S. at 443).

The inquiry is complex, because even where the acts of another branch would interfere with the executive’s “accomplishing its functions,” this “would not lead inexorably to” invalidation; rather, the Court “would proceed to ‘determine whether that impact is justified by an overriding need to promote’” legitimate governmental objectives. Id. (quoting Administrator of General Services, 433 U.S. at 443).

These inquiries formed the basis for the Court’s analysis in United States v. Nixon, where the Court employed a balancing test to preserve the opposing interests of the executive and judicial branches with respect to the President’s claim of privilege over confidential communications.

The Court’s resort to a balancing test was quite explicit. See e.g., 418 U.S. at 711-12 (“In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in the performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal justice.”).

In Nixon v. Fitzgerald, the Court’s recognition of an absolute presidential immunity from civil suits for damages concerning official conduct also reflected a balance of competing interests.

As the Court explained, “(I)t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States."

"But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” 457 U.S. at 753-54.

And in Clinton v. Jones, the Court again acknowledged that “‘(e)ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.’” 520 U.S. at 701 (quoting Loving v. United States, 517 U.S. 748, 757 (1996)).

We now explain why, in light of the post-1973 cases, we agree with the 1973 conclusions that indicting and prosecuting a sitting President would “prevent the executive from accomplishing its constitutional functions” and that this impact cannot “be justified by an overriding need” to promote countervailing and legitimate government objectives.

2.

Three types of burdens merit consideration: (a) the actual imposition of a criminal sentence of incarceration, which would make it physically impossible for the President to carry out his duties; (b) the public stigma and opprobrium occasioned by the initiation of criminal proceedings, which could compromise the President’s ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs; and (c) the mental and physical burdens of assisting in the preparation of a defense for the various stages of the criminal proceedings, which might severely hamper the President’s performance of his official duties.

In assessing the significance of these burdens, two features of our constitutional system must be kept in mind.

First, the Constitution specifies a mechanism for accusing a sitting President of wrongdoing and removing him from office.
See U.S. Const, art. II, §4 (providing for impeachment by the House, and removal from office upon conviction in the Senate, of sitting Presidents found guilty of “Treason, Bribery or other high Crimes and Misdemeanors” ).

While the impeachment process might also, of course, hinder the President’s performance of his duties, the process may be initiated and maintained only by politically accountable legislative officials.

Supplementing this constitutionally prescribed process by permitting the indictment and criminal prosecution of a sitting president would place into the hands of a single prosecutor and grand jury the practical power to interfere with the ability of a popularly elected President to carry out his constitutional functions.

Second, “(t)he President occupies a unique position in the constitutional scheme.”
Fitzgerald, 457 U.S. at 749.

As the court explained, “Article II, § 1 of the Constitution provides that ‘(t)he executive Power shall be vested in a President of the United States . . . .’"

"This grant of authority establishes the President as the chief constitutional officer of the Executive branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity.” Id. at 749- 50.

In addition to the grant of executive power, other provisions of Article II make clear the broad scope and important nature of the powers entrusted to the President.

The President is charged to “take Care that the Laws be faithfully executed.” See U.S. Const, art. II, §3.

He and the Vice President are the only officials elected by the entire nation. See id. art. II, § 1.

He is the sole official for whose temporary disability the Constitution expressly provides procedures to remedy. See id. art. II, § 1, cl. 6; id. amend. XXV.

He is the Commander in Chief of the Army and the Navy. See id. art. II, §2, cl. 2.

He has the power to grant reprieves and pardons for offenses against the United States. See id.

He has the power to negotiate treaties and to receive Ambassadors and other public ministers. See id. art. II, §2, cl. 2.

He is the sole representative to foreign nations.

He appoints all of the “Judges of the supreme Court” and the principal officers of the government. See id. art. II, § 2, cl. 2.

He is the only constitutional officer empowered to require opinions from the heads of departments, see id. art. II, § 2, cl. 1, and to recommend legislation to the Congress. See id. art. II, §3.

And he exercises a constitutional role in the enactment of legislation through the presentation requirement and veto power. See id. art. I, § 7, els. 2, 3.

Moreover, the practical demands on the individual who occupies the Office of the President, particularly in the modem era, are enormous.

President Washington wrote that “(t)he duties of my Office * * * at all times * * * require an unremitting attention,” Brief for the United States as Amicus Curiae in Support of the Petitioner at 11, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853) (quoting Arthur B. Tourtellot, The Presidents on the Presidency 348 (1964)).

In the two centuries since the Washington Administration, the demands of government, and thus of the President’s duties, have grown exponentially.

In the words of Justice Jackson, “(I)n drama, magnitude and finality [the President’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., concurring).

In times of peace or war, prosperity or economic crisis, and tranquility or unrest, the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.

As Justice Breyer explained in his opinion concurring in the judgment in Clinton v. Jones

The Constitution states that the “executive Power shall be vested in a President.” Art. II, § 1.

This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electorate. . . .

[The Founders] sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.
520 U.S. at 711-12.

The burdens imposed on a sitting President by the initiation of criminal proceedings (whether for official or unofficial wrongdoing) therefore must be assessed in light of the Court’s “long recognition of] the ‘unique position in the constitutional scheme’ that this office occupies.” Id. at 698 (quoting Nixon v. Fitzgerald, 457 U.S. at 749).

a.

Given the unique powers granted to and obligations imposed upon the President, we think it is clear that a sitting President may not constitutionally be imprisoned.

The physical confinement of the chief executive following a valid conviction would indisputably preclude the executive branch from performing its constitutionally assigned functions.


As Joseph Story wrote:

There are . . . incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it.

Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever.

The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office ....
3 Joseph Story, Commentaries on the Constitution of the United States 418-19 (1st ed. 1833) (quoted in Nixon v. Fitzgerald, 457 U.S. at 749).

To be sure, the Twenty-fifth Amendment provides that either the President himself, or the Vice-President along with a majority of the executive branch’s principal officers or some other congressionally determined body, may declare that the President is “unable to discharge the powers and duties of his office,” with the result that the Vice President assumes the status and powers of Acting President. See U.S. Const, amend. XXV, §§ 3, 4.

But it is doubtful in the extreme that this Amendment was intended to eliminate or otherwise affect any constitutional immunities the President enjoyed prior to its enactment.

None of the contingencies discussed by the Framers of the Twenty-fifth Amendment even alluded to the possibility of a criminal prosecution of a sitting President.

Of course, it might be argued that the Twenty-fifth Amendment provides a mechanism to ensuring that, if a sitting President were convicted and imprisoned, there could be a transfer of powers to an Acting President rather than a permanent disabling of the executive branch.

But the possibility of Vice-Presidential succession “hardly constitutes an argument in favor of allowing other branches to take actions that would disable the sitting President.”

To rationalize the President’s imprisonment on the ground that he can be succeeded by an “Acting” replacement, moreover, is to give insufficient weight to the people’s considered choice as to whom they wish to serve as their chief executive, and to the availability of a politically accountable process of impeachment and removal from office for a President who has engaged in serious criminal misconduct.


While the executive branch would continue to function (albeit after a period of serious dislocation), it would still not do so as the people intended, with their elected President at the helm.

Thus, we conclude that the Twenty-fifth Amendment should not be understood sub silentio to withdraw a previously established immunity and authorize the imprisonment of a sitting President.

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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Sat Jan 05, 2019 1:40 p

UNITED STATES DEPARTMENT OF JUSTICE

A Sitting President's Amenability to Indictment and Criminal Prosecution


October 16, 2000

Memorandum Opinion for the Attorney General, continued …

b.

Putting aside the possibility of criminal confinement during his term in office, the severity of the burden imposed upon the President by the stigma arising both from the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process would seriously interfere with his ability to carry out his constitutionally assigned functions.

To be sure, in Clinton v. Jones the Supreme Court rejected the argument that a sitting President is constitutionally immune from civil suits seeking damages for unofficial misconduct.

But the distinctive and serious stigma of indictment and criminal prosecution imposes burdens fundamentally different in kind from those imposed by the initiation of a civil action, and these burdens threaten the President’s ability to act as the Nation’s leader in both the domestic and foreign spheres.

Clinton’s reasoning does not extend to the question whether a sitting President is constitutionally immune from criminal prosecution; nor does it undermine our conclusion that a proper balancing of constitutional interests in the criminal context dictates a presidential immunity from such prosecution.

The greater seriousness of criminal as compared to civil charges has deep roots not only in the Constitution but also in its common law antecedents.

Blackstone distinguished between criminal and civil liability by describing the former as a remedy for “public wrongs” and the latter as a response to “private wrongs.”
4 William Blackstone, Commentaries *5.

As he explained, “(t)he distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community, in its social aggregate capacity.” Id.

This fundamental distinction explains why a criminal prosecution may proceed without the consent of the victim and why it is brought in the name of the sovereign rather than the person immediately injured by the wrong.

The peculiar public opprobrium and stigma that attach to criminal proceedings also explain, in part, why the Constitution provides in Article III for a right to a trial by jury for all federal crimes, see Lewis v. United States, 518 U.S. 322, 334 (1996) (Kennedy, J. concurring), and provides in the Sixth Amendment for a “speedy and public trial,” U.S. Const, amend. VI, see Klopfer v. North Carolina, 386 U.S. 213, 222 (1967) (pendency of an indictment “may subject [the defendant] to public scorn” and “indefinitely prolong this oppression, as well as the ‘anxiety and concern accompanying public accusation’” ) (citation omitted).

The magnitude of this stigma and suspicion, and its likely effect on presidential respect and stature both here and abroad, cannot fairly be analogized to that caused by initiation of a private civil action.

A civil complaint filed by a private person is understood as reflecting one person’s allegations, filed in court upon payment of a filing fee.

A criminal indictment, by contrast, is a public rather than private allegation of wrongdoing reflecting the official judgment of a grand jury acting under the general supervision of the District Court.

Thus, both the ease and public meaning of a civil filing differ substantially from those of a criminal indictment. Cf. FDIC v. Mallen, 486 U.S. 230, 243 (1988) (“Through the return of the indictment, the Government has already accused the appellee of serious wrongdoing.”).

Indictment alone risks visiting upon the President the disabilities that stem from the stigma and opprobrium associated with a criminal charge, undermining the President’s leadership and efficacy both here and abroad.

Initiation of a criminal proceeding against a sitting President is likely to pose a far greater threat than does civil litigation of severely damaging the President’s standing and credibility in the national and international communities.

While this burden may be intangible, nothing in the Supreme Court’s recent case law draws into question the Department’s previous judgment that “to wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.”
OLC Memo at 30.

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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Thu Nov 21, 2019 1:40 p

FINDLAW

Presidential Impeachment: The Legal Standard and Procedure


Created by FindLaw's team of legal writers and editors.

The involuntary removal of a sitting President of the United States has never occurred in our history.

The only legal way such can be accomplished is by the impeachment process.

This article discusses the legal standard to be properly applied by members of the U.S. House of Representatives when voting for or against Articles of Impeachment, and members of the U.S. Senate when voting whether to convict and remove from office a President of the U.S., as well as the procedure to be followed.


Article I § 2 of the United States Constitution gives the House of Representatives the sole power to impeach (make formal charges against) and Article I § 3 gives the Senate the sole power to try impeachments.

Article II § 4 of the Constitution provides as follows:

"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."

Thus, the operative legal standard to apply to an impeachment of a sitting President is "treason, bribery, or other high crimes and misdemeanors."

There is substantial difference of opinion over the interpretation of these words.

There are essentially four schools of thought concerning the meaning of these words, although there are innumerable subsets within those four categories.

Congressional Interpretation

The first general school of thought is that the standard enunciated by the Constitution is subject entirely to whatever interpretation Congress collectively wishes to make:

"What, then, is an impeachable offense?"

"The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office..."


- Congressman Gerald Ford, 116 Cong. Rec. H.3113-3114 (April 15, 1970).

This view has been rejected by most legal scholars because it would have the effect of having the President serve at the pleasure of Congress.

However there are some, particularly in Congress, who hold this opinion.


An Indictable Crime

The second view is that the Constitutional standard makes it necessary for a President to have committed an indictable crime in order to be subject to impeachment and removal from office.

This view was adopted by many Republicans during the impeachment investigation of President Richard M. Nixon.

The proponents of this view point to the tone of the language of Article II § 4 itself, which seems to be speaking in criminal law terms.

There are other places in the Constitution which seem to support this interpretation, as well.

For example, Article III § 2 (3) provides that "the trial of all crimes, except in cases of impeachment, shall be by jury."

Clearly the implication of this sentence from the Constitution is that impeachment is being treated as a criminal offense, ergo, impeachment requires a criminal offense to have been committed.

Article II § 2 (1) authorizes the President to grant pardons "for offenses against the United States, except in cases of impeachment."

This sentence implies that the Framers must have thought impeachment, and the acts which would support impeachment, to be criminal in nature.

In the past, England had used impeachment of the King's ministers as a means of controlling policy (Parliament could not get rid of the King, but could get rid of his ministers who carried out acts Parliament believed to be against the best interest of the country).

However, in English impeachments, once convicted that person was not only removed from office but was also punished (usually by execution).

Misdemeanor

The third approach is that an indictable crime is not required to impeach and remove a President.

The proponents of this view focus on the word "misdemeanor" which did not have a specific criminal connotation to it at the time the Constitution was ratified.

This interpretation is somewhat belied by details of the debate the Framers had in arriving at the specific language to be used for the impeachment standard.

Initially the standard was to be "malpractice or neglect of duty."


This was removed and replaced with "treason, bribery, or corruption."

The word "corruption" was then eliminated.

On the floor during debate the suggestion was made to add the term
"maladministration."

This was rejected as being too vague and the phrase "high crimes and misdemeanors" was adopted in its place.

There are many legal scholars who believe this lesser standard is the correct one, however.

Relating to the President's Official Duties

The fourth view is that an indictable crime is not required, but that the impeachable act or acts done by the President must in some way relate to his official duties.

The bad act may or may not be a crime but it would be more serious than simply "maladministration."

This view is buttressed in part by an analysis of the entire phrase "high crimes or misdemeanors" which seems to be a term of art speaking to a political connection for the bad act or acts.

In order to impeach it would not be necessary for the act to be a crime, but not all crimes would be impeachable offenses.


Some hold the opinion that Congress could pass laws by declaring what constitutes "high crimes and misdemeanors" which would, in effect, be a list of impeachable offenses.

That has never happened.

How Congress Sets the Rules for Impeachment

Both the U.S. House of Representatives and the U.S. Senate have the right to make their own rules governing their procedure, and to change those rules.

Under current rules, the actual impeachment inquiry begins in the Judiciary Committee of the House of Representatives.

That Committee holds hearings, takes evidence, and hears testimony of witnesses concerning matters relevant to the inquiry.

Typically, as occurred in the case of President Nixon, there will also be a Minority Counsel who serves the interest of the party not controlling Congress.

Witnesses are interrogated by the Committee Counsel, the Minority Counsel, and each of the members of the House Judiciary Committee.

The Committee formulates Articles of Impeachment which could contain multiple counts.

The Committee votes on the Articles of Impeachment and the results of the vote are reported to the House as a whole.

The matter is then referred to the whole House which debates the matter and votes on the Articles of Impeachment, which may or may not be changed.

If the Articles of Impeachment are approved, the matter is sent to the Senate for trial.

Impeachment Trials

The trial in the Senate is handled by "Managers" from the House of Representatives, with the assistance of attorneys employed for the prosecution of the impeachment case.

The Senate sits as a jury.

(In the past the Senate has heard judicial impeachments by appointing a subcommittee especially for that purpose, which then reports its findings to the Senate as a whole.)

The Senate would then debate the matter, and vote, each individual Senator voting whether to convict the President and remove him from office, or against conviction.

If more than two-thirds of the Senators present vote to convict, the President would be removed from office.

Thus a Senator who abstained from voting but was present would in effect be voting against conviction. (Article I § 3).

If the President is convicted by a vote of the Senate, and removed from office, yet another grave constitutional crisis is then presented.

Does the President have a right of appeal, and if so, to whom?

Article I § 3 of the Constitution states:

"The Senate shall have the sole Power to try all Impeachments..."

For many years, the conventional view was that the forgoing section of the Constitution meant that the Senate was the final arbiter when it came to impeachments (at least as to Federal Judges) and that what constituted an impeachable offense would be unreviewable. See Ritter v. U.S.\, 84 Ct. Cl. 293 (1936) cert denied 300 U.S. 668 (1937).

However, if there is an impeachment standard (and there can be no doubt that there is as the Constitution specifically establishes one -- "treason, bribery or other high crimes and misdemeanors"), then it is only logical that it is possible for that standard not to be correctly followed.

If such is the case, who is responsible for saying that the standard was not correctly followed?

There can only be one answer -- the courts.

As there has never been a successful impeachment and removal of a sitting President, there is no authority "on all fours" for the proposition either way.

However, there is authority which would shed some light on this complicated question.

The Role of the U.S. Supreme Court

The Supreme Court of the United States has decided that it should not review judicial impeachments, using the "political question" doctrine to sidestep the issue.

Walter Nixon v. United States, 506 U.S. 224 (1993).

In the Walter Nixon case, Judge Nixon attacked the rule of the Senate allowing a subcommittee to hear evidence, rather than the Senate as a whole, in his judicial impeachment.

The opinion of the Supreme Court declined to review Judge Nixon's case, and in dicta is not binding on future Courts.

Even though the Court was unanimous in concluding not to review Judge Nixon's removal from office, there were multiple concurring opinions.

The concurring opinion of Justice White indicates an unwillingness, on his part at least, to conclude in advance that a Presidential impeachment would be unreviewable.

See Walter Nixon v. United States, 506 U.S. at 244.

As stated by Justice White at footnote 3, page 247 of the Walter Nixon case:

"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result."

"It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases."

"Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."


This view is echoed by Justice Souter in his concurring opinion in the same case:

"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate."

Walter Nixon v. United States, 506 U.S. at 253.

This article was written by Ronald Arthur Lowry.

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Re: ON THE INDICTMENT OF AN AMERICAN PRESIDENT

Post by thelivyjr » Thu Nov 21, 2019 1:40 p

FINDLAW

The Historical Underpinnings of Impeachment


By Laura Temme, Esq. on September 26, 2019 2:05 PM

Speaker Nancy Pelosi’s announcement that the House will pursue impeachment proceedings against President Trump created buzz across the country this week.

A holdover from Britain’s constitutional system, impeachment provides the House with the power to investigate actions by elected officials, and the Senate with the ability to remove them from office.

However, given the dramatic results impeachment can have, legislators in the U.S. have rarely used it.

Here’s a look back at the origins of impeachment in the United States:

How Did the Framers View Impeachment?

The Framers of the Constitution saw impeachment as something reserved for acts that violated the public’s trust.

As Alexander Hamilton pointed out in Federalist No. 65:

They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.


In many ways, framers viewed impeachment as the nuclear option; in fact, many delegates to the Constitutional Convention thought officials should only be “punished” in elections.

Others, like Elbridge Gerry of Massachusetts, thought impeachment was a necessary check on the executive branch, saying that a competent official would not fear impeachments (although a bad one should be kept in fear of them).

In the end, the delegates decided impeachment was important enough to include in the Constitution – writing Article II Section 4 before even tackling provisions outlining presidential powers.

Why “High Crimes and Misdemeanors?”

One of the most common criticisms of the Constitution’s impeachment language is the lack of guidance on what acts should trigger impeachment.

The founders saw bribery and treason as obvious grounds for impeachment, but beyond that, they weren’t sure how far to go.


Arguing that “maladministration” was too vague, James Madison proposed borrowing a phrase from British legal practice used to denote crimes against the government – high Crimes and Misdemeanors.

Related Resources:

Information and Legal Resources on Impeachment (FindLaw’s U.S. Supreme Court)

Trump Impeachment Inquiry Announced – What’s Next? (FindLaw’s Law & Daily Life)

Can the Supreme Court Save Trump From Impeachment? (FindLaw’s Law & Daily Life)

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