ON THE INDICTMENT OF AN AMERICAN PRESIDENT
Posted: 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.
TO BE CONTINUED ...
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.
TO BE CONTINUED ...