Dear Mr. Savage,
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NATIONAL ARCHIVES and RECORDS ADMINISTRATION 8601 ADELPHI ROAD COLLEGE PARK 20740-6001 www.archives.gov NATIONAL ARCHIVES June 16 , 2017 Charlie Savage c / o The New York Times 1627 Street , NW , 7th Floor Washington , DC 20006 Dear Mr. Savage , I am writing in response to your Freedom of Information Act request of May 18, 2017 for records in the custody of the National Archives and Records Administration . Your request was received in this office on the same date and assigned FOIA case tracking number 53042 . You requested to the draft indictment of President Bill Clinton and related documents that provide legal analysis on the question of whether a sitting President may be indicted , found in the Records of Independent Counsels Kenneth Starr and Robert Ray . I have conducted a preliminary assessment of the entries you identified from the OIC file manifest and have confirmed the responsiveness of the following files : 486 DC, Paul Rosenzweig Attorney Work Files : 2. William Jefferson Clinton Indictment 232 DC, Jay Apperson Attorney Work Files: 6. Presidential Indictability 232 DC, Jay Apperson Attorney Work Files: 7. Project Idaho 405 DC, John Bowler Attorney Work Files : 2. DOJ Brief – Indictment After Impeachment 405 DC, John Bowler Attorney Work Files : 15. WJC Status Memorandum 405 DC, John Bowler Attorney Work Files : 16. WJC Status Memo Supplemental Materials All of these records , with the exception of the file titled DOJ Brief – Indictment After Impeachment , require screening for categories of information exempted from disclosure under the terms of the Freedom of Information Act (5 USC 552 ), prior to public release. In particular , documents may be redacted to preserve the secrecy of grand jury proceedings pursuant to Rule 6 ( e) of the Federal Rules of Criminal Procedure. Requests for investigative files that do not exceed 500 pages are assigned to our first - tier processing queue . Taking into consideration our existing backlog , the estimated time required to complete the processing of your request is approximately 24 months from the date of this letter . To notify this office of a change in your contact information or to track the status of your request , please telephone 301 or e- mail [email protected] . If you have specific questions regarding the subject of your request , please contact me directly at 301 or 1
Transcript of Dear Mr. Savage,
NATIONALARCHIVES and RECORDS ADMINISTRATION
8601 ADELPHI ROAD COLLEGE PARK 20740-6001
www.archives.govNATIONALARCHIVES
June 16, 2017
Charlie Savagec / o The New York Times
1627 Street, NW , 7th Floor
Washington , DC 20006
Dear Mr. Savage,
I am writing in response to your Freedom of Information Act request of May 18, 2017 for recordsin the custody of the National Archives and Records Administration . Your request was received in
this office on the same date and assigned FOIA case tracking number 53042 .
You requested to the draft indictment of President Bill Clinton and related documents that
provide legal analysis on the question of whether a sitting President may be indicted, found in theRecords of Independent Counsels Kenneth Starr and Robert Ray.
I have conducted a preliminary assessment of the entries you identified from the OIC file manifestand have confirmed the responsiveness of the following files:
486 DC, Paul Rosenzweig Attorney Work Files: 2. William Jefferson Clinton Indictment
232 DC, Jay Apperson Attorney Work Files: 6. Presidential Indictability232 DC, Jay Apperson Attorney Work Files: 7. Project Idaho
405 DC, John Bowler Attorney Work Files : 2. DOJ Brief – Indictment After Impeachment
405 DC, John Bowler Attorney Work Files: 15. WJC Status Memorandum
405 DC, John Bowler Attorney Work Files : 16. WJC Status Memo Supplemental Materials
All of these records, with the exception of the file titled DOJ Brief – Indictment After Impeachment,require screening for categories of information exempted from disclosure under the terms of the
Freedom of Information Act (5 USC 552), prior to public release. In particular, documents may be
redacted to preserve the secrecy of grand jury proceedings pursuant to Rule 6 (e) of the FederalRules of Criminal Procedure.
Requests for investigative files that do not exceed 500 pages are assigned to our first - tierprocessing queue . Taking into consideration our existing backlog , the estimated time required to
complete the processing of your request is approximately 24 months from the date of this letter .
To notify this office of a change in your contact information or to track the status of your request,please telephone 301 or e-mail [email protected] . If you have specificquestions regarding the subject of your request , please contact me directly at 301 or
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@ nara.gov. Allcommunications concerning this request should reference FOIA casetracking number53042 .
If you are not satisfied with our action on this request and would like the opportunity to discuss ourresponse , you may contact our FOIA Public Liaison for assistance :
Accessioned Executive Branch Records Washington , DC AreaFOIA Requester Service Center : 301-837-3190FOIA Public Liaison : Martha Wagner Murphy8601 Adelphi Road, Room 5500
College Park , MD 20740-6001
Telephone : 301
E-mail : [email protected]
Sincerelv .
ROBERT REED
Archivist
Special Access and FOIA Staff
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NATIONAL ARCHIVES and RECORDS ADMINISTRATION
8601 ADELPHI ROAD COLLEGE PARK MD 20740-6001
www.archives.gov
NATIONALARCHIVES
July 10, 2017
Charlie Savagec / o The New York Times
1627 Street, NW , Floor
Washington , DC 20006
Dear Mr. Savage ,
I am writing in further response to your Freedom of Information Act request of May 18, 2017 forrecords in the custody of the National Archives and Records Administration. Your request wasreceived in this office on the same date and assigned FOIA case tracking number 53042.
I have completed a line-by-line review of four documents found in the Records of Independent
Counsels Kenneth Starr and Robert Ray and released information to the greatest extent possible.Two pages have been redacted to protect the personal privacy of living individuals per 5 USC 552(b)(6) and (b)(7 )(C ) and to protect information derived from documents filed under seal with the
United States District Court for the District of Columbia . A summary of the results of this review isprovided below :
DC box 405 , John Bowler Attorney Work Files, DOJ Brief -- Indictment afterImpeachment, Memorandum from Randolph D. Moss, Assistant Attorney General,
Office of Legal Counsel , August 18, 2000 (51 pages released in full).
DC box 232 Jay Apperson Attorney Work Files, Presidential Indictability, DraftMemorandum from Ronald D. Rotunda, May 13, 1998 (56 pages; 54 pagesreleased in full and 2 pages released in redacted form ).
DC box 232, Jay Apperson Attorney Work Files, Project Idaho, Memorandum from
Robert G. Dixon , Jr., Assistant Attorney General, Office of Legal Counsel,September 24, 1973 (41 pages released in full).
DC box 232 , Jay Apperson Attorney Work Files , Project Idaho , Memorandum from
Robert M. Bork , Solicitor General of the United States, October 5, 1973 (23 pagesreleased in full) .
This concludes the processing of the expedited portion of your request. If you have questions
concerning my review of these documents or would like to make arrangements to receive copies,please contact me directly at @ nara.gov or 301
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If you are not satisfied with my action on this request, you have the right to file an administrative
appeal within ninety (90) calendar days from the date of this letter . Appeals must be in writing and
may be delivered by regular U.S. mail or by e -mail. By filing an appeal, you preserve your rightsunder the Freedom of Information Act and present the deciding agency with an opportunity toreview your request and reconsider its decision . If you submit your appeal by regular mail , itshould be addressed to the Deputy Archivist of the United States (ND), National Archives and
Records Administration , 8601 Adelphi Road, Room 4200 College Park , Maryland 20740-6001.
Both the letter and envelope should be clearly marked Appeal .” If you submit your appealby e-mail, please send it to [email protected] , addressed to the Deputy Archivist , with the words
" FOIA Appeal the subject line. Please be certain to explain why you believe this response doesnot meet the requirements of the Freedom of Information Act. All communications concerning thisrequest should reference FOIA case tracking number 53042 .
If you would like the opportunity to discuss our response and attempt to resolve your dispute
without initiating the appeals process, you may contact our FOIA Public Liaison for assistance :
Accessioned Executive Branch Records Washington , DC AreaFOIA Requester Service Center : 301-837-3190
FOIA Public Liaison : Martha Wagner Murphy8601 Adelphi Road, Room 5500
College Park , MD 20740-6001
Telephone : 301
E-mail : [email protected]
If you are unable to resolve your dispute through our Public Liaison, the Office of GovernmentInformation Services (OGIS) is the federal FOIA ombudsman . OGIS offers mediation services tohelp resolve disputes between FOIA requesters and federal agencies . You may contact
the following address
Office of Government Information Services (OGIS)National Archives and Records Administration
8601 Adelphi Road, Room 2510
College Park, MD 20740-6001
1-877-684-6448
Sincerely ,
ROBERT REED
Archivist
Special Access and FOIA Staff
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Screenedby NARA ( RD- F ) July 10, 2017FOIA # 53042 (URTS 16018)DOCID: 70102162
RONALD D. ROTUNDA
THE ALBERT E. JENNER , JR . PROFESSOR OF LAW
PHONE : (217) 333-3459
FAX: (217) 244-1478EMAIL
UNIVERSITY OF ILLINOIS
COLLEGEOF LAW
504 E. PENNSYLVANIA AVE.
CHAMPAIGN, IL61820-6996HOMEPAGE: http://www.viuc.edu/ph/www/rrotunda
May 13, 1998
The Honorable KennethW. Starr
IndependentCounsel
Office of the IndependentCounsel
1001PennsylvaniaAve., N.W.Suite 490 North
Washington, D.C. 20004
draft
ONFIDENTIALRe:
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DearJudgeStarr:
SUMMARYAND INTRODUCTION.
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Youhave askedmy legalopinionas to whethera sittingPresidentis subject
to indictment. Does the Constitutionimmunizea Presidentfrombeingindictedforcriminal activities while serving in the office of President? For example, if thePresident committed a crime before assuming office, does his election to the
Presidencyimmunizehiscriminalactivities? Ifthe Presidentinhisprivatecapacitycommitsone or morecrimeswhileinoffice, does his electionserve to immunizehim ?
Inshort, is a sittingPresidentabove the criminallaw?26
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As this opinion letter makes clear, I conclude that, in the circumstances of this
case, President Clintonis subject to indictment and criminalprosecution, although
itmaybe the case that he couldnotbeimprisoned( assuming that he is convictedandthat imprisonmentis the appropriatepunishment) until after he leaves that office.A criminalprosecution andconviction ( with imprisonmentdelayed) does not, inthe
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For your information, I am attachinga resumelisting my publications.
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2words of Nixon v . Sirica, compete with the impeachment device by working aconstructive removal of the President from office.
In addition , I express no opinion as to whether a prosecution by stateauthorities may be proper ( a state prosecution may violate the Supremacy Clause ).Nor do I consider whether the President could be indicted if there were noIndependent Counsel statute . In the circumstances of this case , there is such a
statute , and itwas enacted as the specific request of President Clinton, who knewat the time he lobbied for and signed the legislation — that a specific purpose of thestatute was investigate criminal allegations involving him . He welcomed theindependent investigation so that it could clear the air.
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Inaddition, as discussedbelow, I expressnoopinionas to whetherthe FederalGovernmentcouldindicta Presidentfor allegationsthatinvolvehisofficialduties asPresident. The OfficeofIndependentCounselis investigatingallegationsthat do notinvolveany officialdutiesofPresidentClinton. The countsof an indictmentagainstPresidentClintonwouldincludeserious allegationsinvolvingwitness tampering,document destruction perjury subornationof perjury, obstruction of justice,conspiracy, and illegal pay-offs; these counts in no way relate to the PresidentClinton'sofficial duties, eventhoughsomeofthe allegedviolationsoccurredafterhebecamePresident. The allegationsinvolvedhere do not involveany sort of policydisputebetweenthe PresidentandCongress. The allegations, inshort, do not relateto the President'sofficial duties; they are not within the outer perimeter of hisofficialresponsibility. , the acts involvedhereare notonly outsidethe outer perimeterofthe President'sofficialresponsibility, they are contraryto thePresident'sofficialresponsibilityto take care that the lawbefaithfullyexecuted.
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29Also, as discussed below , a grand jury indictment is not inconsistent inpresent
circumstances with the conclusion reached by the Watergate Special Prosecutor .example, in the present case (and unlike the Watergate situation ) a criminalprosecution would not duplicate any impeachment proceeding already begun in the
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487 F.2d 700, 711(D.C . Cir. 1973) (per curiam ) (en banc ). President Nixon chosenot to seek U.S. Supreme Court review of this decision . Instead he fired Watergate SpecialProsecutor Archibald Cox .
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Nixon v . Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690 , 2704, 73 L.Ed.2d 349(1982) .
4 I shoulddisclose that I was Assistant MajorityCounsel to the Senate WatergateCommittee .
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House of Representatives. Inthe Watergate era, the House of Representativeshad
prior to the time that Special Prosecutor Leon Jaworski turned over any
informationto the HouseImpeachmentInquiry— already made the independentdecisionto begin, and, infact, hadbegun impeachmentproceedings. Inthe presentcase, no HouseImpeachmentInquiryhas begun, and, ifone were to begin, itwould
only be becausethe House of Representativeswouldbe respondingto informationthat the Office of Independent Counsel would transfer to the House of
Representatives. WatergateProsecutorJaworski, inshort, didnot wantto preemptthe Houseinquirythat hadindependentlybegun. Now, there is no Houseinquiry,
andthe OIC wouldnot be preemptingany Houseinquiry. While the IndependentCounselstatute authorizesthe to transmitrelevantinformationto the House,
the statutedoesevensuggestthat the mustpostponeany indictmentuntiltheHouse andSenateshavehaveconcludedany impeachmentinquiry.
Inthis country, the U.S. Supreme Court has repeatedly reaffirmed the statethat no one is above the law . " The Constitution grants no one immunity from the
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See LEON JAWORSKI, THE RIGHT AND THE POWER 100 (1976) WatergateProsecutor Jaworski's views are discussed below . One should also note that, in the presentcase , the House might not see fit to begin an impeachment , or it might decide that the allegedviolations of law do not merit removal from office , either because some acts occurred prior to
the time of President Clinton's assumption of office or because they do not rise to the level ofimpeachable offences .
As JusticeJoseph Story hasnoted: “There is also much force in the remarkthat animpeachmentis a proceedingpurelyofa politicalnature. Ittouchesneitherhis person, nor his
property; butsimplydivestshimofhispoliticalcapacity. JOSEPHSTORY, COMMENTARIESONTHECONSTITUTION, , atp . 289 (RONALDD.ROTUNDA& JOHNE.NOWAK, eds., CarolinaAcademicPress, , originallypublished, 1833).
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E.g., United States v . Lee, 106 U.S. 196 , 220, 1 S.Ct. 240, 260 , 27 L.Ed. 171( 1882); United States v . United Mine Workers of America , 330 U.S. 258 , 343 , 67 S.Ct. 677 , 720
91 L.Ed. 884 ( 1947); Malone . Bowdoin , 369 U.S. 643, 651, 82 S.Ct. 980, 986 8 L.Ed.2d 168
( 1962) (Douglas , J., dissenting ); Malone Bowdoin , 369 U.S. 643 , 651 82 S.Ct. 980, 986 ,8 L.Ed.2d 168 (1962) (Douglas, J. , dissenting ); Johnson Powell, 393 U.S. 920, 89 S.Ct. 250,
251, 21L.Ed.2d 255 ( 1968) (Memorandum Opinion of Douglas, J. , regarding application for astay ) ; Branzburg v . Hayes, 408 U.S. 665 , 699, 92 S.Ct. 2646 , 2665 , 33 L.Ed.2d 626 ( 1972) ;
Gravel v . United States ., 408 U.S. 606 , 615, 92 S.Ct. 2622 , 33 L.Ed.2d 583 (1972) ; UnitedStates v . Nixon , 418 U.S. 683, 715, 94 S.Ct. 3090 , 3111, 41 L.Ed.2d 1039 ( 1974) ; Butz v .Economou , 438 U.S. 478 , 506, 98 S.Ct. 2894,2910 57 L.Ed.2d 895 ( 1978 ); Davis . Passman ,442 U.S. 228 , 246, 99 S.Ct. 2264 , 2277 , 60 L.Ed.2d 846 (1979) ; Nixon v Fitzgerald ,457 U.S. 731, 758 & n . 41 102 S.Ct. 2690 , 2705 & n.41, 73 L.Ed.2d 349 ( 1982) ; Briscoe .
LaHue, 460 U.S. 325 , 358, 103 S.Ct. 1108 , 1127 , 75 L.Ed.2d 96 ( 1983) ; United States v .(continued )
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criminal laws. Congress enacted the present law governing the appointment of
Independent Counsel, at the specific request of President Clinton and AttorneyGeneral Janet Reno. All of the parties the President, the Attorney General,
Congress knew that the specific and immediate purpose of this statute would
result in the appointment of an Independent Counsel to investigate certainallegations of criminal activities that appeared to implicate the President of theUnitedStates and the First Lady. Since that time, the Attorney General has, on
several occasions, successfully urged the Court to expand the jurisdiction of this
particular Office of Independent Counsel ( hereinafter, "OIC ) to include other
allegationsinvolvingthe Presidentand Mrs. Clinton.
As the judiciary has noted in the past, the President not embody thenation'ssovereignty. He is not above the law'scommands .... The people notforfeit throughelectionsthe right to have the law construedagainstandappliedto
everycitizen. Nor does the ImpeachmentClause imply immunityfrom routinecourtprocess
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In the remainder of this opinion letter I examine the case law, the legal
commentators, the historyandlanguageofthe relevantConstitutionalprovisions, thelegislativehistory of the IndependentCounsel law, the logic andstructure of our
Constitution, and the laws governing the Grand Jury's power to investigate andindict. As discussed in detail below, the Constitution really provides that the
Presidentmust be impeachedbeforehe can be prosecutedfor breakingthe criminal
law evenifthe Presidentcommits a crime prior to the time he became President,or if he commits a crime in his personal capacity, not in his official capacity asPresident the our Constitutionhas createdserious anomalies.
First, it is quite clear that a Presidentmay be impeached for actions that doa
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( ...continued)Stanley, 483 U.S. 669 , 706 , 107 S.Ct. 3054 , 3076, 97 L.Ed.2d 550 ( 1987)Brennan , J. , joined by
Marshall , J. , concurring in part & dissenting in part ; Seminole Tribe of Florida v . Florida,517 U.S. 44, 103 n . 2, 116 S.Ct. 1114 1146 n . 2, 134 L.Ed.2d 252 ( 1996 ) (Souter, J. , joined by
Ginsburg & Breyer , JJ.); Clinton , U.S. 117 S.Ct. 1636, 1645,137 L.Ed.2d 945 (1997) .
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Nixon v. Sirica, 487 F.2d 700 at 711 ( footnote omitted ).
8 Nixon 487 F.2d at 711 (per curiam) (en banc) ( footnoteomitted) (emphasis added) .
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notviolate any criminalstatute. that ( a ) constituteimpeachableoffensesand
( b ) are violations of a crime created by statute our Constitution recognizes nocommonlawcrimes) are two differentcategories of acts. Moreover, ifthe President
does commit a crime, that does not necessarilymean that he mustbe impeached,becausesome crimes do not merit impeachmentandremovalfrom office.
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For example, if the Presidentin a moment of passion slugs an irritatingheckler, he has committed a criminalbattery. Butno one wouldsuggest that the
Presidentshouldbe removedfrom office simply because of that assault. Yet, thePresidenthas no right to assault hecklers. Ifthere is no recourseagainst thePresident, ifhecannotbeprosecutedfor violatingthe criminallaws, he will be abovethe law. Clintonv. Jonesrejectedsuch animmunity; instead, it emphaticallyagreedwiththeEight Circuitthat: “thePresident, likeother officials, is subjectto the samelawsthat apply to all citizens.” The rationalefor official immunityis inappositewhere onlypersonal, privateconduct by a Presidentis at issue. The Presidenthasno immunity in such a case. Ifthe Constitutionprevents the Presidentfrom beingindictedfor violations ofone or morefederal criminal statutes, even ifthose statutoryviolations are not impeachable offences, then the Constitution authorizes thePresident to be above the law . But the Constitution creates an Executive Branchwith the President under a sworn obligation to faithfully executive the law. TheConstitutiondoes not create an absolute Monarch above the law.
Inaddition, as also discussedbelow, ifthe President must be impeachedpriorto beingprosecutedfor seriousviolationsof the criminallaw, then Congresswouldhave the final determination of when a criminal prosecutionmust begin. But it
violates the Doctrine of the Separation of Powers for the legislative branch ofgovernmentto controlwhen ( or if) a criminalprosecutionmay occur. Itwould evenviolate the Separation of Powers if Congress were to make the decision of the
See, e.g., JOSEPHSTORY, COMMENTARIESONTHECONSTITUTION, at p . 288
(RONALD D. ROTUNDA & JOHN E. NOWAK, eds., Carolina Academic Press, 1987, originallypublished, 1833) “ Congress have unhesitatinglyadopted the conclusion that no previousstatuteis necessaryto authorizeany impeachmentof anyofficialmisconduct
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Cf. Gary Borg, Chretien is Charged Briefly with Assault , CHI. TRIB , May 7 1996,at A10, available in 1996 WESTLAW 2669290 ( reporting that the Canadian Prime Ministerthe first time this century that a sitting Canadian Prime Minister was faced with criminalcharges was charged with assault for grabbing a protester by the throat ; the charge waslater quashed ).
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U.S.- S.Ct. 1636, 1638. (1997) .
12 117 S.Ct. 1636, 1641 (quoting Eight Circuit)(emphasis added).
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Attorney General to refuse to seek (or to seek ) the appointment of an independentcounsel subject to judicial review .
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Moreover, as the case lawdiscussedbelow indicates, ifthe GrandJury cannotindict the President, it cannot constitutionallyinvestigate him . But, inMorrison
Olson SupremeCourt upheldthe constitutionalityof the IndependentCounselAct and the constitutionalityof grandjury investigationsunder the directionof anIndependentCounselappointedby the court. Morrisonimplicitly decided the issueanalyzedinthis opinionletter.
The Constitution does grant limited immunity to federal legislators incertainlimited contexts, as discussed below , but those immunities do not exempt Senatorsor Representatives from the application of the criminal laws. One looks in to
find any textual support in the Constitution for any Presidential immunity ( either
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Morrisonv. Olson, 487 U.S.654, 108S.Ct.2597, 101L.Ed.2d569 ( 1988). TheCourtmade it quite clear that itwas necessary, in order to save the constitutionalityof the
IndependentCounselstatute, for the Courtto concludethat it gaveneitherCongressnor theSpecialDivisionanypowerto force the AttorneyGeneralto appointan IndependentCounsel
norany powerto director supervisethe IndependentCounselonce the appointmenttook place.For example the CourtinMorrisonalso said: " [ T ]he SpecialDivisionhasnopowerto appointan independentcounselsua sponte; itmay do so upon the specific requestof the Attorney
General, and the courts are specificallypreventedfromreviewingthe AttorneyGeneral'sdecisionnot to seek appointment." 487 U.S. at 695, 108S.Ct.at 2621. As to Congress, theCourt said: " The Act does empowercertainMembersof Congressto request the AttorneyGeneralto apply fortheappointmentofanindependentcounsel, butthe AttorneyGeneralhasnoduty to complywith therequest, althoughhe mustrespondwithina certaintime limit." 487U.S.at694, 108S.Ct.at 2621. TheAttorneyGeneral'sdecisionnot to appointan IndependentCounselis" committedto his unreviewablediscretion,” eventhoughthe Actpurportsto requiretheAttorneyGeneralto appointunless he finds no reasonablegroundsto believethat furtherinvestigationiswarranted. U.S.at 696, 108S.Ct.at 2622.
Morrison also made clear that Congress could not remove or prevent the removal of the
Independent Counsel , and the Special Division could not remove the Independent Counsel .Inorder to save the statute's constitutionality , the Court interpreted the statutory provisionrelating to termination to mean virtually nothing: It is basically a device for removing fromthe public payroll an independent counsel who has served her purpose , but is unwilling toacknowledge the fact. So construed , the Special Division's power to terminate does not posea sufficient threat of judicial intrusion into matters that are more properly within theExecutive's authority to require that the Act be invalidated as inconsistent with Article III.
Morrison, 487 U.S. at 683 , 108 S.Ct. at 2615. See, Ronald D. Rotunda, The Case AgainstSpecial Prosecutors , WALL STREET JOURNAL , Jan. 15, 1990, at p . A8 .
14 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
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absoluteor temporary) from the commands of the criminallaws. Ifthe framers of our
Constitutionwantedto create a special immunity for the President, they could havewritten the relevantclause. They certainlyknew how to write immunityclauses, for
they wrote two immunityclauses that apply to Congress. But they wrote nothingto immunizethe President. Instead, they wrote an ImpeachmentClause treating the
President and all other civil officers the same way. Other civil officers, like judges,
have beencriminally prosecutedwithout beingimpeached. SittingVice Presidentshave been indictedeven though they were not impeached
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AsNixonv. carefullynoted: Becauseimpeachmentis available againstall officersofthe UntiedSates, not merelyagainst the President, it is difficult
to understand how any immunities peculiar to the President can emanate byimplicationfrom the fact of impeachability. ” Moreover, itwould be anomalousand
aberrantto interpretthe ImpeachmentClause to immunizethe Presidentfor allegedcriminal acts, some of whichoccurredprior to the time he assumedthe Presidency
and all far removed from any of the President's enumerated duties: witness
tampering, destructionof documents, subornationofperjury, perjury, illegalpay-offs.
BACKGROUND.
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The Office of Independent Counsel has investigated and continues to
investigatevarious mattersthat are looselygroupedunder thenameof Whitewater,which is a particularrealestate deal that involveslanddevelopedinArkansas. The
Whitewater labelis often usedin the popular press. However, the investigativemandate to this Office of IndependentCounsel is broader than this title implies.There are landdealsother than Whitewaterthat are part ofthis investigationas well
as other matters, such as the scandalinvolvingthe White HouseTravelOffice and
the misuse of FBI files by politicaloperatives workinginthe White House. Morerecently, the AttorneyGeneralpetitionedthe Court to expand OIC's mandateandjurisdiction to include various allegationssurroundingMs. Monica Lewinskyand
involving obstruction of justice, witness tampering, perjury, and suborning ofperjury. "
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18U.S. Const ., art. I , 6, cl . 1 [ limited privilege from arrest ; speech or debate
privilege Both of these immunities are very limited in scope, as discussed below .
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487 F.2d at 700, 711 n.50 (D.C. Cir . 1973) (en banc)(per curiam) ( internal
citation omitted, citing the Impeachment Clause , Art. II, 4) ..
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Inthatcase, whentheOIC came uponthe initialinformation, the OIC referredthe matter to the Attorney Generalandsuggestedvarious alternatives: the Departmentof
(continued...)
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Attorney GeneralJanetRenoand the Departmentof Justicehave rejectedtheclaims of those who seek to narrow the jurisdiction of this OIC.18 Inaddition, theAttorney Generalhas, at various times, expandedthe original jurisdictionofthe OIC
to includematters beyondthose originally within the OIC mandate. 19 Indeed, the
Attorney Generalhas evengone to court inorder to submitthese mattersto you andto expandthe OIC'sjurisdictionover your objection.20 While she has expandedthe
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(...continued)Justice could take over the investigation , or the DOJcould investigate together with the OIC ,or the DOJ could turn over the entire matter to the the DOJ could seek the
appointment of a new Independent Counsel. The Attorney General chose the third alternativeand promptly asked the Special Division to expand the jurisdiction of the OIC .
The Special Division granted this special request of the Attorney General. The OIC didinvestigate after it had received oral authorization to do so . This oral authorization was
followed by written authorization .
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When others have claimed that the OIC is acting outside of its jurisdiction (a
claim , for example , that Governor Jim Guy Tucker advanced incourt ), the Attorney Generalhas also supported the jurisdiction and the Eight Circuit agreed with this position .
19The scandal and charges that have been collectively referred to as “ Travel gate "
( involving the White House Travel Office) or the Files” ( referring to FBI files sent to the
White House and then used for partisan purposes) fit in this category .
The AttorneyGeneral'seffortsto expandyour jurisdictionare also significantbecause
recent events show that she is often reluctantto seek the appointmentof a IndependentCounsel. She has refusedto appointan IndependentCounsel invariousmattersrelatingto
campaignfinance, evenwhen the Directorof the FBIhas supportedthe appointmentof an
IndependentCounsel. And, inmattersinvolvingother IndependentCounsel, she hasobjected
to any expansionofjurisdiction, evenwhenthe courtshave eventuallyruledthather positionwas legally in error. E.g., Terry Eastland, How Justice Tried to Stop Smaltz, Wall Street
Journal, Dec.22, 1997, at A19, col. 3-6 (Midwested.) .
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Itis unusualfor the subjectof an investigationby an IndependentCounseltothe bonafides of the IndependentCounsel. Forexample, neitherAttorneyGeneral
Meesenor his personalattorneyever personallyattackedthe peopleinvestigatinghim, even
thoughthe IndependentCounselwas a memberof the otherpoliticalparty. Infact, it hasbeentypicalfor the IndependentCounselto be a memberof the opposingpoliticalparty.
I am aware that some supporters of President Clinton (including his wife and
occasionally the President himself) have engaged in public attacks on the OIC and personalattacks on the bona fides of its attorneys. They accuse the OIC of partisanship and abuse of
the prosecutorial powers . However, the fact that Attorney General Reno who serves at the
(continued...)
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jurisdictionofthe OIC, PresidentClintonhas refusedon severaloccasionsto testify
beforethe GrandJury, hadpledexecutiveprivilegeto block his aidesfromtestifying,andhasurged thecreation of a new type ofprivilege to preventSecret ServiceAgentsfrom testifying.
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Notwithstandingthese roadblocks, the investigationis proceedingto thepoint
that there is significant, credible, persuasiveevidencethat the Presidenthas beeninvolvedin various illegalactivitiesin a conspiracy with others ( in particularhis
wife ), to tamper with witnesses, suborn perjury, commit perjury, hide or destroy
incriminatingdocuments, and obstruct justice.
�
Ifthe Presidentwere any other official of the UnitedStates, for example, a
CabinetOfficeror a Congressperson, I understandthat the two Deputy Independent
Counsel (one, a former U.S.Attorneyand the other, a former member of thePublicIntegritySectionof the Departmentof Justice) have concludedthat an indictment
would be proper and would issue given the evidence before the GrandJury. TheOfficeof IndependentCounselis, in general, requiredto follow the Departmentof
Justice regulationsgoverning other federal prosecutors. To refuse to indict the
Presidentwhen the crimes are seriousenough and the evidencestrongenoughthat
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( ...continued)pleasure of President Clinton and is the highest law enforcement official in the Departmentof Justice has gone to court to expand your jurisdiction (even over your objection) isinconsistent with these attacks. Ifshe thought that the OIC or any of its attorneys were actingimproperly in investigating President Clinton , she would make no sense for her to be fightingto expand the OIC's jurisdiction . Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d
569 ( 1988) , discussed below, made it quite clear that the Attorney General's decision not to
seek the appointment of an Independent Counsel is not reviewable in any court .
Recently , a bipartisan group of former Attorneys General of the United States havejoined together to rebut the attacks on the integrity of the Independent Counsel . Theirstatement of March, 1998 , was extraordinary . It said, in part:
“As former attorneys general, we are concerned that the severity of theattacks on Independent Counsel Kenneth Starr and his office by highlevel government officials and attorneys representing their particularinterests, among others, appear to have the improper purpose ofinfluencing and impeding an ongoing criminal investigation andintimidating possible jurors , witnesses and even investigators .
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a Senator or Cabinet Secretary would be indictedwould be inconsistentwith the
obligations to exercise its prosecutorial discretion the same way that theDepartmentof Justice attorneys exercise their discretion to refuse to indict.
Moreover, there is the apparent injusticethat would result ifthe GrandJury
would seek to indict the various members of this conspiracy (e.g., Hillary RodhamClinton) while refusingto indict thecenter of the conspiracy.2
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Ifthe GrandJury simply issues a reportof the facts that it has found, but doesnot indict even though it concludes that there is substantial evidence that the
Presidenthascommitted serious crimes, then the President has no judicial forum topresent his side of the story and seek vindication inthe judicial system. As then
Solicitor General Robert Bork said, inarguing that a sitting Vice President can beindicted
An officer may haveco-conspirators and even if the officer
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were immune indictment, his co-conspiratorswouldnot be.
The resultwouldbe that the grandandpetitjuries would receiveevidenceabout the illegaltransactionsand that evidencewould
inevitably name the officer. The trial might end up in theconviction of the co conspirators for their dealings with theofficer, yet the officer wouldnotbe on trial, would not have the
opportunity to cross -examineand presenttestimonyon his ownbehalf. The man and his office would be slandered and
demeanedwithouta trialinwhichhewas heard. The individualmightpreferthat to the riskofpunishment, butthecourts should
not adopt a rule that opens the office to such a damaging
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procedure. 22
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Consequently you have asked my legal opinion as to whether it isconstitutionalto indict a sittingPresidentfor actions that occurredbothbeforehebecamePresidentandwhilehe was underinvestigation.
In order to answer the question, it is important to understand the
constitutionalissueincontext. The questionis not, as an abstractmatter, whetherany sitting President is immune from the criminal laws of the state or federal
governmentsas long as he is inoffice. Rather, the questionis whether — given theenactmentof the IndependentCounsellaw underwhich the OIC operates, given thehistoricalbackgroundthat led to that law, and giventhe constitutionalityof that lawas determinedbyMorrisonv. Olson23 itis constitutionalfor a grandjury to indict
this Presidentif the evidence demonstratesbeyond a reasonable doubt that thePresidentis part of an extensive andcontinuingconspiracy, stretchingover manyyears, involvingwitness tampering, documentdestruction, perjury, subornationofperjury, obstructionofjustice, andillegalpay-offs all serious allegationsthatin
no way relate to the President Clinton's official duties, even though some of the
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In re Proceedingsof the GrandJury ImpaneledDecember 5, 1972, Applicationof Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965,
Memorandumfor theUnitedStates Concerningthe Vice President'sClaimofConstitutionalImmunity, Oct. 5 , 1973, at p . 21 (emphasis added). Judge Bork concludedthat a sittingVice
President could be indicted prior to impeachmentbut he also said in dictum ) that the
Presidentwouldbe immunefrom indictmentpriorto impeachment. While Judge Bork arguedthat the Presidentshouldbe immunefrom indictment, his reasoningat this point supportstheoppositeconclusion. Hispoint is well-taken: the Office of IndependentCounsel shouldnot cast
a charge against the Presidentwithout givinghima judicial forum withinwhich to vindicatehimself
23 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) .
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allegedviolationsoccurredafter he becamePresident.
Before turning to this particular question , it is useful to consider somebackground matters.
CRIMINAL PROSECUTIONSOF CHIEF EXECUTIVESOF OTHER COUNTRIES.
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First it is interestingthat democracies in other countries do not recognize aprinciple that an individual would be above the law and privileged to engage incriminal activities simply because he or she is the President Premier, PrimeMinister, ChiefExecutive, or Headof State. Infact, heads of state are not immune
from criminalprosecutioneven ifwe only look at countries with a tradition oflivingunder the rule of law that ismuch weaker than the tradition that exists in the United
States. I have been unable to find any instances where a democracydemocracy that also recognizes a King or Queen has immunized its Chief
Executive Officer from criminal conduct simply because he or she is the ChiefExecutive Officer.
evena
On the other hand, it is quite easy to find examples of foreign heads of statesubject to prosecutionfor allegedly criminal activities. Evenifone confines a searchto the relatively short time period since 1980, it is not difficult to find variousexamples of heads of state who have been subject to the possibility of criminal
prosecution (what we call “ indictment in this country) in a wide variety ofcountries.
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Other countries are governedby their own Constitutions, and the fact thattheir chiefexecutives( liketheir citizens) are subject to the criminallaw doesnot, of course, meanthat the chiefexecutiveofficer of the UnitedStates is subject toitsfederalcriminallaws. Eachof these instancesis, ina sense, unique and one can
thereforedistinguishthem from the presentcircumstance.
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Consequently, I do not rely on the examples discussedbelowin reachingtheconclusionsofthe opinionletter. I simply present these examplesas suggestingthatthe claim that the chief executive officer of the United States is immune from
criminalprosecutionandabove the law as longas he holds the chiefexecutive officeis a claim that other countries ( at leastthosewho are not governedby a dictatorship)would find curious ifnot peculiar.
VENEZUELA , in 1993 , President Carlos Andres Perez was ordered to stand trial on
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In this case, I used a computerizedsearch ofWESTLAW for the periodsince 1980.
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embezzlement charges. Perez has the dubious distinction of being the first incumbentVenezuelanpresident chargedwitha crime since the country shed a militarydictatorship andbecamea democracy in 1958.The provisionalgovernmentofOctavio Lepagewas swominto replace Mr. Perez.25
InPAKISTAN, in 1997, Prime MinisterNawaz Sharifwas charged with contemptofcourtafter criticizing the judiciary, which is a crime in Pakistan. Sharif pleaded innocent. Aconvictioncould leadto his removal from office The fact that he held the office ofPrimeMinisterdid not immunizehimfrom the rule of law .
InITALY, prosecutorsrequestedthe indictmentofPrime MinisterRomano Prodion charges
ofcorruptmanagementofthe country's state industries. The charges arose from the transfer
ofa food production company from state to privatehands in 1993. Prodiwas accusedoffixing the sale ofa largepackageof shares inthe company by offeringit to a politicallywell-connectedprivateconcernat a cut-price rate. The fact that he was Prime Minister didnot immunizehimfromthe ruleof law . A preliminarymagistrate was incharge ofdecidingwhether to order Prodito stand
InCANADA, Prime Minister Jean Chretien was charged with assault for manhandlingaprotester. His office of Prime Ministerdid not immunize him from the rule of law . Of
course, the fact that he couldbe chargeddoes not meanthat he would be convicted and, infact, the charges were quashed. This was the first time this century that a sitting Canadian
primeminister faced criminalassault charges. KennethRussell, brought the charge againstthe prime minister for grabbinga demonstrator by the throat duringa FlagDay ceremony
InFRANCE, traders said that one of the major reasons for the enactmentof emergencymoney market measures has been removed with Wednesday's decision not to pursuecriminal charges against the Prime Minister for illegally acquiring cheap apartments forhimselfand his son. ” However, if the evidence warranted, Prime Minister Alain Juppewould not be immunizedfrom the ruleof law and could have been prosecuted.
InISRAEL, in 1995, Shekemworkers asked Attorney General Michael Ben -Yair to open a
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25Venezuela Ponders Next Move as President Ordered to Stand Trial, ATLANTA
JOURNAL & CONSTITUTION , May 23 , 1993, A 10, available in 1993 WESTLAW 3364034 .
26
SharifWarns CrisisTakingPakistanNearDestruction, JONES NEWSSERV., Nov. 19, 1997. RaymondBonner, Pakistan'sArmy May Settle PoliticalFeud, N.Y.TIMES, Dec. 1, 1997, atA4.
27
ItalianPMFacesAccusations, VANCOUVERSUN, Nov. 26, 1996, A7, availablein1996WestLaw5031681; AndrewGumbel, ProsecutorsTurnSightsonItalianPM , THE INDEP.
(London), Nov. 26, 1996, at 15, InternationalSection.
28
Gary Borg, Chretien is Charged Briefly with Assault, . TRIB., May 7 1996,at A10, available in 1996 WESTLAW 2669290.
29
Capital Markets Report, Oct. 12, 1995; Reuters World Service, Oct. 11, 1995.
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criminal investigation against Prime Minister Yitzhak Rabin for allegedly violating subjudice laws. Rabincharged that “ Shekem's workers are parasites. ” Israel's laws forbidpublishing information on an issue negotiated in court if it could influence the court's
ruling. Rabin's office of Prime Minister did not serve to immunizehimfromthe rule oflaw
In JAPAN, prosecutors ultimately refused to press charges against PrimeMinister Noboru
Takeshita or any other major political leader being investigated for criminal activity inconnection with an influence-peddling scandal. Former prime minister Yasuhiro Nakasoneand at least three cabinet members inTakeshita's governmentalso escaped indictment. Thescandal, however, forced Takeshita to announce on April 25, 1989, that he would resign.31Once again, the Prime Minister was subject to the of law, and ifthe evidence hadwarranted could have been criminally prosecuted.
InPAPUANEWGUINEA, a judge recommendedthat PrimeMinisterBill Skate face criminal
charges ifevidence that he failed to stop a mutiny was confirmed. fact that he wasPrime Minister did not immunizehimfrom the rule of law .
In SLOVAKIA , in 1996, President Michael Kovac filed criminal slander charges againstPrime Minister Vladimir Meciar. fact that Meciar heldthe office of PrimeMinister
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Galit Lipkis Beck, Shekem Workers: InvestigateRabin, JERUSALEMPOST, Feb.
21, 1995, A8, availablein 1995 WESTLAW 7552690;GalitLipkis Beck, Shekem Workers ProtestRabin's Insults, JE ALEM POST, Feb. 24, 1995, at p . 15, in EconomicsSection.
In another instance, ISRAEL, the Prime Minister, BenjaminNetanyahu, faced aparliamentaryno confidencevote afteraninquiryfound insufficientevidenceto linkhimto
an allegedplotto subvertthe investigationofa right-wingcoalitionallyon corruptionchargesby appointinga loyalbut unqualifiedattorney general, Mr.Roni Bar On.” Julian Borger,Confidence Vote Can Only Be Bad News for Netanyahu, IRISHTIMES, Jun. 24, 1997, A10,availablein 1997WESTLAW 12011461; Anton La Guardia, Netanyahu to Battleon AfterEscapingCharges, DAILYTELEGRAPH, Apr. 21, 1997, at 13, InternationalSection. Ifthe
inquiryhadfoundsufficientevidence, he wouldhavebeensubject to indictment. Hisoffice ofPrimeMinisterdid not immunizehimfrom the ruleof law.
31
Probe Ends, Japan's PMNot Charged in Scandal, MONTREAL GAZETTE, May 301989, B6, available in 1989 WESTLAW 5664899 ; Steven R. Weisman , Japanese Prosecutors End
Scandal Inquiry Without IndictingMajor Figures, N.Y.TIMES , May 30, 1989, at A3 .
32
PapuaNew Guinea'sPMCouldFaceCriminalChargesinMutiny, JONESINT'LNEWSSERV., Dec. 15, 1997.Aroundthe World, SEATTLETIMES, Dec. 15, 1997.
33
SlovakiaPresidentFiles Charges Against PrimeMinister, JONES INTLNEWSSERV., May 30, 1996 .
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did not serve to immunizehimfrom the ruleof law .
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These examples shouldnot be surprising. As ChiefJustice Marshallstated
nearly two centuries ago, inMarbury v Madison, the case that has become thefountainheadofAmericanconstitutionallaw: The government of the UnitedStateshasemphaticallytermed a governmentoflaws, andnot ofmen And, he added, “ InGreat Britainthe kinghimselfis sued in the respectful form of a petition, andhenever fails to comply with the judgment of hiscourt.
Letusnowturn specifically to American law. The first item to consider is thelanguage and structure of our Constitution.
THE STRUCTUREANDLANGUAGEOF THE UNITEDSTATESCONSTITUTION.
Chief Justice Marshall explained that the Constitution assigns to different
Cf. THAILAND, in 1992, where Prime Minister Suchinda Kraprayoon resignedafter “ accepting responsibility for the deaths ofat least 40 people and the wounding of morethan 600 when army troops opened fire on unarmed pro-democracy demonstrators.Demonstrators demanded that trials be held for Suchinda and top military officers who were
responsible for ordering troops to fire on unarmed demonstrators . A decree granted the PrimeMinister amnesty from criminal charges arising from the repression of the protests. Iftherewere no decree, the Prime Minister would be subject to the rule of law, and the fact that he
was Prime Minister would not serve to immunize him. Even after the pardon, an effort wasunder way to have the amnesty decree declared illegal by a constitutional tribunal . Charles
P. Wallace, Long- Awaited Constitutional Reforms Made in Thailand, COURIER - JOURNAL( Louisville, Ky. ), May 26, 1992, A3, available in 1992 WESTLAW 7837659 ; William Branigin,Amnesty Opposition Building in Thailand, HOUSTON CHRONICLE , May 25 , 1992, A24.
a
Also inTHAILAND, in 1996, criminal fraud charges were leveled against Prime MinisterBanharn Silpa -archa. His office ofPrime Minister did not immunize him from the rule of law .
The Bangkok Post said that the charges involved allegations about the sale of land by Mr.Banharn's daughter, Ms. Kanchana, to the state and the diversion of a seven -billion -baht( $ 393 million) fund from the environment to the Interior Ministry, which Mr. Banharn headsas minister ” Banharn Faces Criminal Charges: Opposition , STRAITS TIMES (Sing. ), Sept. 4 ,
, available in 1996 WESTLAW 11723429; PM Faces Criminal Charges: Move to ShowBanharn's Zero Credibility , THE BANGKOK , June 3 , , at p . 1.
35 5 U.S. ( 1 Cranch) 137, 2 L.Ed.60 (1803) .
36
5 U.S. ( 1 Cranch) at 163.
37
5 U.S. (1 Cranch ) at 163. Cf. Ronald D. Rotunda, Presidents and Ex -Presidentsas Witnesses: A Brief Historical Footnote , 1975 U. OF . L. FORUM 1 ( 1975) , cited e.g. inClinton . Jones , - 117 S.Ct. 1636, 137 945 (1997) .
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departments their respective powers." So that
" those limits may not be mistaken or forgotten , the constitution iswritten. To what purposeare powerslimited, andto what purposeisthat limitationcommittedto writing these limitsmay, at anytime, bepassedby those intendedto be restrained? The distinctionbetween a
governmentwith limitedand unlimitedpowers is abolished, if thoselimitsdo not confinethe personson whom they are imposed, and if actsprohibitedandacts allowedare of equal obligation.
aBecause we liveunder a written constitution, and the Constitution was written
so that we would be governed by the written words, itis useful to look at what that
writing says about immunities from prosecution . Let us look at the language of theConstitution .
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Our written Constitutionhas two specific sections that refer to what may becategorizedas some type of “ immunity from the ordinary reachof the laws.
THE PRIVILEGEFROMARREST
First, Senators and Representatives are privileged from Arrest during theirAttendance at the Session of their respective Houses , and in going to and returningfrom the same ..." except in cases of “ Treason , Felony and Breach of the Peace .....
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This section illustrates several important factors. First the Framers of ourConstitution thought about immunity, and when they did, they gave a limited immunity tothe Senators and Representatives. No similar clause applies to any member of the ExecutiveBranch nor any member of the Judicial Branch. Second, the immunity granted is reallynarrow . Itonly applies during a legislative session . Moreover, it is limited to arrest in civilcases, an obsolete form of arrest that no longer exists.
41
The Privilege from Arrest Clause does not apply at all to criminal cases. Itdoes not protect the Senator or Representative from service of process in a criminala
38
5 U.S. ( 1 Cranch) at 176.
39
5 U.S. ( 1 Cranch) at 176-77.
40
U.S.CONST., ART. I , 6 , cl. 1.
41
See discussion in, 1 RONALD D. ROTUNDA & JOHN E. NOWAK , TREATISE ON
CONSTITUTIONAL LAW 8.9 “ Privilege from Arrest (West Pub. Co. , 2d ed. 1992) . See also,Williamsonv. UnitedStates, 207 U.S. 425 435-46, 28 S.Ct. 163, 166, 52 L.Ed. 278 (1908).
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case Itdoes not evenprotectthe Senatoror Representativefrom serviceof processina civil case. In other words, this clause immunizes a Senator or Representativeagainst a procedure that no longer exists arrest in a civil case.
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As Justice Brandeis, speaking for the Supreme Court, has warned us, this
narrowprivilege shouldbe narrowlyconstrued:
Clause 1 the privilege from arrest clause) defines the extent of theimmunity. Its languageis exact and leavesno roomfor a constructionwhich would extendthe privilegebeyondthe terms of the grant."
THE SPEECHOR DEBATE CLAUSE.
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The same clause of the Constitutioncontains the only other referenceto a
privilegeor immunityfrom the criminallaw . It providesthat, any Speechor
DebateineitherHouse, they shallnot be questionedinany other
The Supreme Court has interpretedthis Speechor Debate” Clause, like thePrivilegefromArrest Clause, quite narrowly. For example, ifthe ExecutiveBranch
seeks to prosecutea Memberof Congressfor taking a bribe to vote a way, the
prosecutioncannot introduceinto the trial the vote of the Representative, but theprosecutioncan introduceintoevidencethe “ p ] romisesby a Memberto perform anact inthe future, “a promiseto introduce a bill is not a legislativeact . In
other words, Membersof Congresscan be criminallyprosecutedfor taking a bribe to
introducelegislationinto Congress, notwithstandingthe supposedprotectionsof theSpeechor DebateClause.
In addition, the Speech or Debate Privilege, like the Arrest Privilege, only
applies to the legislative branch, not the executive branch . The Constitutionallanguage makes that quite clear. The existence of these two privileges and theabsenceof any similarly clear languagecreatingany sort of Presidentialprivilegeis
42
UnitedStates v . Cooper, 25 Fed. Cases626, ( 4 Dall.) 341, 1 L.Ed.859 (C.C.Pa.1800) .
43
Long . Ansell, 293 U.S. 76, 82, 55 S.Ct. 21, 22, 79 L.Ed.208 (1934).
44Long v . Ansell, 293 U.S. 76 , 82 , 55 S.Ct. 21, 22 , 79 L.Ed. 208 ( 1934) .
45
U.S. CONST . ART . I , 6 , cl . 1.
46 United States v . Helstoski, 442 U.S. 477, 489-90, 99 S.Ct. 2432, 2439-40, 61L.Ed.2d 12 (1979)(emphasis in original).
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significant. If the Framers of our Constitution had wanted to create someconstitutional privilege to shield the President or any other member of the Executive
Branch from criminal indictment (or to prevent certain officials from being indicted
before they were impeached ), they could have drafted such a privilege. They
certainly know how to draft immunity language , for they drafted a very limitedimmunity for the federal legislature .
Yet, even in the caseoffederallegislators, the Constitutiongives no immunityfrom indictment. As then SolicitorGeneralRobertBorkconcluded, in rejectingtheargumentthat the UnitedStates couldnotindicta sittingVice President:
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"The Constitution provides no explicit immunity fromcriminal sanctions for any civil officer. The only expressimmunityinthe entire document is found in Article I Section 6 ,which provides [here he quotes the arrest clause
"Since the Framers knew how to, and did, spell out an
immunity , the natural inference is that no immunity exists wherenone is mentioned. Indeed, any other reading would turn theconstitutional text on its head: the construction advanced bycounsel for the Vice President requires that the explicit grant of
immunity to legislators be read as in fact a partial withdrawal ofa complete immunity legislators would otherwise have possessedin common with other government officers . The intent of the
Framers was to the contrary
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THE IMPEACHMENT CLAUSE.
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TheLanguage. There is only one impeachmentclause inthe Constitution.
Itdoes not purportto distinguishthe impeachmentof a federaljudge fromthe Vicea
President, nor does it distinguish the impeachment of the Vice President from thePresident. The clause provides:
"Judgment in Cases of Impeachment shall not extend furtherthan to removal from Office, and disqualification to hold andenjoy any Office of honor, Trust , or Profit under the UnitedStates: but the Party convictedshall neverthelessbe liable and
47
In re Proceedings of the Grand Jury Impaneled December 5 , 1972 , Applicationof Spiro T. Agnew , Vice President of the United States, Case Number Civil 73-965 ,
Memorandum for the United States Concerning the Vice President's Claim of ConstitutionalImmunity, Oct. 5, 1973, at p. 5 .
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subject to Indictment Trial Judgment, and Punishment,accordingto Law .”
This clause indicates that Congress should not be entrusted with the power toimpose any penalty on an impeached official other than ( or no greater than ) removal
from office and disqualification from further office . Criminal penalties would be leftto the judiciary . In addition, the clause makes clear that double jeopardy would notbar a criminal prosecution . The clause does not state that criminal prosecution mustcome after an impeachment , nor does it state that the refusal of the House to impeach(or the Senate to remove from office ) would bar a subsequent criminal prosecution .
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The Commentatorsandthe Case Law. The availablehistoricalevidence
as to themeaningofthisclauseis sparse. One can findvarioushistoricalreferences
that assumethat impeachmentwouldprecedeindictment, but these references, as
ProfessorJohnHartElyconcluded, not arguethat the Constitutionrequiredthatorder. ProfessorEly, at the time, was a consultant to ArchibaldCox, then the
WatergateSpecialProsecutor, when he madethese commentsandconcludedthat theConstitutiondoes not require that impeachment and removalprecede a criminalindictment, even of the President. In 1996, in the midst of the Whitewater
investigation, he reaffirmedhis analysis.50
Judge RobertBork agrees with Professor Ely, his former colleague at the Yale
LawSchool. While Solicitor General, Judge Bork concluded, when the Constitutionprovides that the Party convicted is nonetheless subject to criminal punishmentthat language does “ notestablish the sequenceofthe two processes, but exists] solelyto establish that conviction upon impeachment does not raise a double jeopardydefense in a criminal trial. ”
48
U.S.Const., art. I , 3 , cl. 7. Clause 6 providesthat ifthe Presidentis subjectto impeachment, the ChiefJusticeofthe UnitedStatesshallpreside. The framersevidentlythoughtthatthepersonwho normallypresidesover the Senate i.e. the Vice Presidentof the
UnitedStates) shouldnotpresideinthecase of a Presidentialimpeachmentbecausehe wouldbe in a conflictof interest.
49 JOHN HART ELY, ON CONSTITUTIONAL GROUND 138 (Princeton University Press1996) (emphasis added ).
JOHN HART ELY, ON CONSTITUTIONAL GROUND 138-39 (Princeton UniversityPress 1996) .
In re Proceedings of the Grand Jury Impaneled December 5 , 1972, Applicationof Spiro T. Agnew , Vice President of the United States, Case Number Civil 73-965 ,
(continued...)
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Ofcourse, impeachmentby the House andconvictionby the Senateis the onlyconstitutionalwayto removethe Presidentor Vice Presidentor federaljudges from
. A criminalconvictioninan ArticleIIIfederalcourt of a federalofficial does not
removethis officialfrom office, evenifthe criminalact would also constitute high
crimesormisdemeanors.
The debates surrounding the drafting of the Constitution are “ rife withassertionsthat the presidentis not a monarchabove the law. andso the argument
mustproceedalongthe linethat the presidentmustbe impeachedbeforehe can becriminallyprosecuted. us considersome of these historicalsources.
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For example, inone ofthe FEDERALISTPAPERS, Alexander Hamilton says, “ Thepunishmentwhich may be the consequenceof convictionupon impeachment, is notto terminate the chastisementof the offender. Another FEDERALISTPAPER ( also
pennedbyHamilton) states the Presidentcan be impeachedfor " treason, bribery, orother high crimes or misdemeanors, removedfrom office; and would afterwardsbeliableto prosecution and punishmentin the ordinary course of law . Perhapsthis
language only means that ifthe Presidentis being chargedwith actions that are
peculiarly and uniquely contrary to Presidential responsibility ( like treason
committed while President, or acceptance of bribes while President) thenimpeachment must precede indictment. But that interpretationwould mean thatothercrimes assault andbattery, witness tampering, obstructionofjustice, perjury,
suborningperjury ina civil case, etc.) can be prosecutedprior to impeachmentandremovalfrom office.
Against this sparse language (which nowhere asserts that impeachment and
51
( ...continued)
Memorandumfor the UnitedStatesConcerningthe Vice President'sClaimof Constitutional
Immunity, Oct. 5 1973, at p . 10 ( emphasis added). Solicitor General Bork, in thisMemorandum of dictum , also concluded, basedon the case law that existedat thetime, that the Presidentwas immunefrom criminalprosecutionprior to indictment.
52
JOHN HART ELY,ON CONSTITUTIONAL GROUND 138 (Princeton University Press1996) .
THE FEDERALIST PAPERS, No. 65, paragraph (Alexander Hamilton ). InNo.69.
54 THE FEDERALISTPAPERS, No. 69 4th paragraph (Alexander Hamilton).
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removal must precede criminal indictment inall cases)5 other specific historical
language that goes the other way and indicates that the Framers of our Constitution
concluded that, unlike federal legislators, no special constitutional immunity shouldattach to the President.36
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Consider, for example, the remarks of James Wilson, in the course of thePennsylvania debates on the Constitution. He said: “ from being above the laws,
he the President is amenable to them in his private character as a citizen , and inhis public character by impeachment. That quotation implies that the President
can be criminally prosecuted like any other citizen , without regard to impeachment .Similarly, Iredell, in the course of the North Carolina debates on the Constitution ,said : “ Ifhe the President commits any misdemeanor in office, he is impeachable
Ifhe commits any crime, he is punishable by the laws of his country, and in
capital cases may be deprived ofhis life.
16 Wilson was hardly a solitary voice. Charles Pinckney, a contemporaryobserver, also stated:17
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“ Let us inquire, why the Constitution should have been so
attentive to each branch of Congress, so jealous of their ,Congressional] privileges Pinckney had just referred to theCongressionalprivilegefrom arrest, discussed above), and haveshewn so little to the President of the UnitedStates in this
respect. No privilege of this kind was intended for your
Professor John Hart Ely , who examined the historical references for WatergateSpecial Prosecutor Archibald Cox, also concluded that the historical references do not require
that impeachment and removal precede a criminal indictment, even of the President. JOHN
HART ELY, CONSTITUTIONAL GROUND 139 (Princeton University Press 1996).
See, e.g., MAXFARRAND, THERECORDSOF THE FEDERALCONVENTIONOF 1787,
at p . 1066( 1911) (commentsofCharlesPinckney); 10 ANNALSOF CONGRESS71( 1800)(SenatorPinckney, statingthat our Constitutionsupposesno man... be infallible, butconsidersthem all as mere men, and subjectto all the passions, and frailties, and crimes, that mengenerallyare, andaccordinglyprovidesfor the trial of such as oughttobe tried ; EricM.
Freedman, AchievingPoliticalAdulthood, 2 NEXUS67, 68 (Spring, 1997), also discussingaccountofCharlesPinckney, a delegate to the ConstitutionalConvention.
2 DEBATES 480, quoted inWATERGATE SPECIAL PROSECUTION FORCE ,
Memorandum of Dec. 26, 1973, from Richard Weinberg to Philip Lacovara , at 7-8 .
4 ELLIOTTSDEBATES 109 quoted in WATERGATE SPECIAL PROSECUTION FORCE,Memorandumof Dec. 26, 1973, from RichardWeinberg to Philip Lacovara, at 8 n.7.
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Executive, nor any except that whichI havementionedfor yourLegislature. The Conventionwhichformedthe Constitutionwellknewthat this was an importantpoint, andno subjecthad been
moreabusedthanprivilege. Theythereforedeterminedso set theexample, inmerelylimitingprivilegetowhat was necessary, andno more .
Tench Coxe, inhis Essays on the Constitution, published in the IndependentGazetteer inSeptember, 1787, agreed. He concluded, indiscussing the President:
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“ Hisperson is notso muchprotectedas thatofa memberof
the HouseofRepresentatives for hemay beproceededagainst likeany other man in the ordinary course of law .” ( emphasis inoriginal)
60
When those who argue that the Presidentis immunefrom the criminallawuntil after he hasbeen impeachedlook to the historicalsources, the very most thatthey could draw from the historicaldebates in support of their view is that there
certainly was no agreement to create any Presidential immunity from criminalindictment( eitherabsoluteor temporary), for the easiest way to create it ( temporaryor otherwise) would have been to add a clause to the Constitution defining itsexistence and extent. Infact, thecontemporarysourcessuggest that the Constitution
providesnocriminalimmunityfor anyPresidentwho commitscrimes inhispersonalcapacity.
27
This analysis should not be surprising; it is the same conclusion reached inNixon v . Sirica , where the Court after examining the Constitutional debates andthe views of the Framers of our Constitution — said:28
10 ANNUALS OF CONGRESS 74 ( 1800 ). Also quoted in, 3 MAX FARRAND, THERECORDS OF THE FEDERAL CONVENTION OF 1787, at 385 , also cited in JOHN HART ELY, ONCONSTITUTIONAL GROUND 415 (Princeton University Press 1996) .
60
Quoted in, 2 THE DOCUMENTARY HISTORY OF THE RATIFICATIONOF THE
CONSTITUTION141(1976) , quotedwith approvalinNixonv . Sirica, 487 F.2d 700,- (D.C. Cir1973) (per curiam)(en banc) .
61Nixonv . Sirica, 487 F.2d 700 (D.C.Cir. 1973) (percuriam )(en banc). President
Nixonchose not to appeal this ruling.
Samuel Dash (also a special consultant to the Office of IndependentCounsel and I weretwo of the attorneys who filed a brief in this case on behalf of the Senate WatergateCommittee.
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“The Constitution makes no mention of special presidentialimmunities. Indeed, the Executive Branch generally is affordednone. This silence cannot be ascribed to oversight.
Later, this sameCourtsaid:
" Lackingtextualsupport, counselfor the Presidentnonetheless
would have us infer immunity from the President's political
mandate, or from his vulnerability to impeachment, or from hisbroaddiscretionarypowers. Theseareinvitations to refashiontheConstitutionandwe reject them."
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Professor John Hart Ely a distinguished Constitutional scholar , a formerchaired Professor of Constitutional Law as Harvard Law School, a former chairedProfessor and the Dean of Stanford Law School , a special consultant to WatergateProsecutor Archibald Cox , and now a chaired Professor at the University of MiamiSchool of Law concluded , after analyzing the debates at the ConstitutionalConvention , that it would be “misleading to argue that there was a specialPresidential immunity from criminal indictment or prosecution until the Presidentwas first impeached . He concluded that “ there was no immunity contemplated by theframers or if they contemplated it they didn't say so Professor Ely wenton to explain :
62
Nixonv. , 487 F.2d700, 710-11(D.C. Cir. 1973) (per curiam ) (en banc):
" Thus, to find the President immune from judicial process, wemust read out of United States v .) Burr, 25 Fed. Cases p . 30 (Case No.
14,6962d ( ) and Youngstown & Tube v . Sawyer, 343 U.S.579, 72 S.Ct. 863 ( 1952) ], the underlying principles that the eminent
jurists in each case thought they were establishing. The Constitutionmakes no mention of special presidential immunities. Indeed, theExecutive Branch generally is afforded none. This silence cannot beascribed to oversig James Madison sed the question of Executiveprivilege during the Constitutional Convention , and Senators and
Representatives enjoy an express, iflimited, immunity from arrest, andan express privilege from inquiry concerning and Debate ' on thefloors of Congress .”
[ footnotes omitted; emphasis added.
63487 F.2d at 711 emphasis added .
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" the extent that they the Constitutional debates) suggest
anythingon the subject, the debates suggest that the immunities
the Constitution explicitly grantedmembersof Congress ( whichdo not, incidentally, includethis sort of immunity (from criminalprosecution were not intendedfor anyone else. The argumentfor presidential immunity from indictment is one that must be
based on necessity - and perhaps, but only perhaps, the,
presidencyandvicepresidencyare distinguishedon that scorebut not on anythingthe framerssaideither in the Constitution
itselfor duringthe debates.
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Consider also some remarks that Joseph Story made in his COMMENTARIES ONTHE CONSTITUTION :
" There are other incidental powers, belonging to the
executive department, which are necessarily implied from thenature of the functions, which are confided to it. Amongthese
mustnecessarilybeincludedthe power to perform them , without
any obstruction or impediment whatsoever. The president
cannot, therefore, be liable to arrest, imprisonment, or detention,whileheisinthe dischargeof the dutiesofhis office; andfor this
purpose his person must be deemed, in civil cases at least, to
possess an official inviolability. In the exercise of hispolitical
powers he is to use his own discretion But he has no
authority to control other officersof the government, inrelationto the duties imposedon them by law, incases nottouchinghis
politicalpowers.
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Somepeople focus on the phrase: “ Thepresidentcannot, therefore, beliableto arrest,
imprisonment, or detention However, they forget to read the rest of the
sentence, which gives him this immunity only when pursuinghis official duties:" while he is in the discharge of the duties ofhis office Obstruction of justice,witness tampering, destructionof documents, acceptingpay- offs none of this is
part ofthe President'sofficial duties. In fact, as JusticeStory states, the President:
has no authorityto controlother officersof the government, inrelationto the duties
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64 JOHNHARTELY, ONCONSTITUTIONALGROUND 141( PrincetonUniversityPress
1996) (emphasisadded).
JOSEPH STORY , COMMENTARIES ONTHE CONSTITUTION , 814 , at p . 579 (RONALD
D. ROTUNDA & JOHN E. NOWAK , eds . , Carolina Academic Press , 1987 originally published ,1833); JOSEPH STORY, COMMENTARIESON THE CONSTITUTION, 1563, at 418-19 (1833ed.) .
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imposed on them by law, in cases not touching his political powers.1
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JusticeStory explainedthat these other officersofthe government ,federal prosecutors, the IndependentCounsel are supposedto do their jobs, toperformthe duties imposedonthembylaw . The duties imposedon the IndependentCounselare dutiesimposedby the IndependentCounselstatute andbythe decisionof Attorney General Janet Reno to petitionthe court to appoint an IndependentCounsel The statuteprovides that IndependentCounselmust, ingeneral, complywith the regulationsof the Departmentof Justice IfPresidentClinton'sallegedcriminal acts would be criminally prosecutedby the Departmentof Justice if aCabinet Officer or Senator or Representativecommitted those crimes, and if theallegedcrimesare seriousenoughandthe evidenceofcriminalityis substantialsothata federalprosecutorbelievesthat he or she wouldsecurea convictionbeyondareasonabledoubtby a fair -mindedjury, then the IndependentCounsel followinghisstatutoryduty, shouldallow the GrandJury to indict.
20
The prosecutionin this case does to relate to any politicaldispute betweenCongressand the President. It does not relateto claimsthat the Presidentshould,or should not have, exercisedpoliticaldiscretionin a particularway. There is noissue as to whether the Presidentshouldhave deployeda newAir Forcebomber, orwhether thePresidentshouldnothavesenttroops to Bosnia. The issuesin this casedo not relate to the President'sofficial duties. Infact, some of the issues occurredbeforehebecamePresident, andallof the issues (obstruction, conspiracy, witnesstampering, etc.) havenothingto do with the President'sofficialdutiesto take carethat thelawbe faithfullyexecuted.
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The language that I have quoted from Justice Story is often quoted in therelevantcaselaw. The courtshaveplacedthe sameinterpretationon thatlanguagethat I have. InNixonv. Fitzgerald, example, the Courtquotedthis languagefromJustice heldthat thePresidenthadnoimmunityfromcivildamagesformattersthatwere outsidethe outer perimeterofhisofficialduties. Infact, inthat
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�The facts here are not like the situation in Morrison v . Olson , where a criminalprosecution of a high-level political appointee of the President arouse out of “ a bitter powerdispute between the President and the Legislative Branch U.S. 654 , 703, 1087 S.Ct.2597, 2625 , 101 L.Ed.2d 569 ( 1988) (Scalia, J. , dissenting ).
68
457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 ( 1982) .
457 U.S. at 749, 102S.Ct. at 2701.
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case, Justices White , Brennan , Marshall, and Blackmun said explicitly that “thereisno contention that the President is immune from criminal prosecution in the courtsunder the criminal laws ... would such a claim be credible . ...Similarly , ourcases indicate that immunity from civil damage actions carries no protection fromcriminal prosecution . 70 By the way Vice President Gore , while a U.S.Representative , agreed with the dissent in this case and argued that the Presidentshould not even be immune from civil damage suits for acts does in his officialcapacity .
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The majority opinion in Fitzgeralddid not dispute this conclusion that thePresidentissubject to criminalindictment. On the contrary, the majorityappearedto agree with the dissenton this point. Justice Powell, joinedby Justices Rehnquist,Stevens, O'Connor & ChiefJustice Burger, respondedthat absolute immunityfromcivil damages “ does not leave the publicpowerlessto deter misconductor to punishthat which occurs. This is so because the judge or prosecutor who, like thePresident is absolutely immune from a civil damage lawsuitbrought by a privatelitigant certain cases can still be criminallyprosecuted.
Clinton v. quotes this same passage from Justice Story. JusticeStevens, for the Court, italicizes part of this quotation . The President
" cannot, therefore be liable to arrest, imprisonment, or detention,whileheis in the discharge of the duties of his office; andfor thispurpose his person must be deemed, in civil cases at least, topossess an official inviolability.” ( emphasis inoriginal)
The Court went on to say: Story said only that an official inviolability'
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457 U.S. at 780 , 102 S.Ct. at 2717 ( dissenting opinion) .
71
See discussion in, Ronald D. Rotunda, Paula Jones Day in Court, 17 LEGALTIMES (OF WASHINGTON, D.C.) 24, 27 (May 30, 1994), reprinted, e.g., 10 TEXAS LAWYER 24, 27( June 13, 1994) , referring to Amicus Brief that Representative Gore joined.
72457 U.S. at 757 n.38, 102 S.Ct. at 2705 n . 38, quoting Imbler v . Pachtman, 424
U.S. at 428-29, 96 S.Ct. at 994.
73
457 U.S. at 757 n.38, 102 S.Ct. at 2705 n . 38, quoting Imbler v . Pachtman, 424U.S. at 428-29, 96 S.Ct. at 994.
74- U.S. 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).
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emphasis by the Court was necessary to preserve the President's ability to perform
the functions of his office; he did not specify the dimensions of the necessaryimmunity Once again the Court made clear that there is no need to give the
President absolute immunity from criminal prosecution when he is charged withoffenses that do not relate to the discharge of the duties of his office because criminal
activities are not in the discharge of the President's official duties.
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As the Court explicitly stated: “With respect to acts taken in hischaracter that is official acts the Presidentmay be disciplinedprincipallyby
impeachment, notbyprivatelawsuitsfor damages. Buthe is otherwisesubject to the
lawsfor hispurelyprivateacts.. privateacts, acts takeninhisprivatecapacity,thePresidentis otherwisesubject to the laws. That has to mean“ all the laws,
includingthe criminallaws. Ifa Presidentsubornsperjury, tamperswithwitnesses,destroys documents, he is not actinginhisofficialcapacity as President. The fact
that some of these acts occurredprior to the time he became Presidentdoes not
bolsterhis claimofimmunityfromthe criminallaws.16
a
Ifthe President is indicted for acts that occurredprior to the time he becamePresident and for acts that were not taken as part ofhis official constitutional duties,
then , as Clinton v. Jones states: the fact that a federal court's exercise of its tradition
Article IIIjurisdiction may significantly burden the time and attentionofthe ChiefExecutive is not sufficient to establish a violation of the Constitution. The Courtadded:
a
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it must follow that the federal courts have power to determine
the legality of the President's ] unofficial conduct . 79
If a President were indicted for acts not taken in official capacity asPresident, a federal court would only be exercising its traditional Article III
jurisdiction. Article IIIcourts have the power to determine the legality of thePresident'sunofficialconduct, eventhoughthe exerciseofthat traditionaljurisdictionmay significantlyburdenthe time andattentionof the ChiefExecutive.
Ifpublic policy and the Constitution allow a private litigant to sue a sitting
76Id.
77 - U.S.at - 117 S.Ct. 1645 (emphasis added .
78 - at 117 S.Ct. at 1648-49
79 U.S. at 117 S.Ct. at 1650.
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President for alleged acts that are not part of the President's official duties ( and are
outside the outer perimeter of those duties) and that is what Clinton v. Jones
squarely held — then one would think that an indictment is constitutional becausethe public interest in criminal cases is greater than the public interest in civil cases.
80
IMPLIED PRIVILEGE ?
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Although the Constitution , by its own terms, does not create a privilege, thatdoes not end the discussion , because the Supreme Court may create a common law
privilege or derive such a privilege from its earlier precedent . Let us now considerthis issue.
EXECUTIVE PRIVILEGE. First, one should look at the role that ExecutivePrivilege has played in the case law . The President, over the course of two centuries ,has sometimes raised a claim of Executive Privilege when Congress demands certain
information . But that was not the fact pattern involved in United States v. Nixon .81
80
Nixon v . Fitzgerald, the SupremeCourt held that the Presidentwas absolutelyimmune for civil damages involving actions taken within his official duties, but also
emphasizedthat this was merely a privatesuit for damages and that there is lesserpublic
interestin actionsfor civil damages than , for example, incriminalprosecutions.” 457 U.S. 731,754 & n.37, 102 S.Ct. 2690, 2703 & n.37.
81
418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 ( 1974) .
For a discussion of prior incidences where Presidents provided personal testimony,under oath , pursuant to subpoena , see, Ronald D. Rotunda, Presidents and Ex - Presidents asWitnesses : A Brief Historical Footnote, 1975 U.OF ILLINOIS LAW FORUM 1 (1975) .
aThe earlier cases where the President complied with a subpoena in a criminal casedid not reach the U.S. Supreme Court. See also, 1 RONALD D. ROTUNDA & JOHN E. NOWAK ,
TREATISE ON CONSTITUTIONAL LAW : SUBSTANCE AND PROCEDURE a ) (d) (West Pub . Co.,2d ed. 1992)(and corresponding pages in 1998 pocket part ).
However, the Supreme Court, prior to United States v . Nixon, did explicitly approve ofUnited States v. , 25 Federal Cases 30, 34 (No. 14,69620 ) C.C.Va. 1807), the decision that
required President Jefferson to comply with a subpoena issued by an Article IIIcourt. After
stating that “ the public has a right to every man's evidence the Court, in Branzberg v . Hayes,408 U.S. 665, 92 S.Ct. 2646 (1972) , added this footnote :
" In United States . Burr Chief Justice Marshall , sitting on Circuit , opined that
in proper circumstances a subpoena could be issued to the President of theUnited States ."
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Instead, the question was quite different: whether the President could refuse to
discloseinformationrelevantto a federalcriminalprosecutionbroughtin an ArticleIIIcourt. PresidentNixonwas the first Presidentin history to litigate the use ofExecutivePrivilegeinthe court systemand the U.S.SupremeCourtand to refuse to
turn over evidence based on this theory. President Clinton is only the secondPresident in history to raise and litigateExecutivePrivilegein an effort to blockevidencerelevantto a criminalinvestigation.
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The main case on this question , United States v . Nixon, recognized a very
limited form of an evidentiary privilege in the case where the President pleadsExecutive Privilege to a subpoena issued under the authority of an Article IIIcourtinconnection with a criminal case.
83
While the Supreme Court recognizedExecutivePrivilegein UnitedStates v .Nixonitdidnot applyit to shield the President; it didnot allow PresidentNixonto
assert it in order to preventdisclosureofPresidentialtapes regardingconfidential
conversations. As Judge RobertBorkrecentlyexplained: Nixon'sclaim , beingbasedonly on a generalized interestin confidentiality was overcomeby the need of the
81( continued)
Branzberg v . Hayes, 408 U.S. at 688 n.26, 92 S.Ct. at 2660 n.26.
82
Thus far President Clinton has lost on this issue. He raised, and then
abandoned, the ExecutivePrivilegeclaiminhis unsuccessfuleffort to preventthe Independent
Counsel subpoenaingnotes takenby Governmentlawyers (variousWhiteHousecounsel)ofconversationswithHillary Clinton. See discussionin , RonaldD.Rotunda, Lips Unlocked:
AttorneyClientPrivilegeand GovernmentLawyers, LEGALTIMES(OF WASHINGTON, D.C.) 21.22, 28 ( June 30, 1997).
PresidentClintonalso unsuccessfullyraisedExecutivePrivilegeinan effort to preventBruce Lindseyand SidneyBlumenthalfrom testifyingbefore the GrandJury. Inre Grand
JuryProceedings, Misc. Action98-095, 98-096& 98-097 (NHJ), filed underseal May 4, 1998(D.D.C.Cir.) ( Judge NormaHollowayJohnson).
83
418 U.S. at 712, n.19 94 S.Ct. at 3109 n.19
"We are not here concerned with the balance between the
President's generalized interest in confidentiality and the need forrelevant evidence in civil litigation, nor with that between the
confidentiality interest and the congressional demands for information,nor with the President's interest in preserving state secrets . We address
only the conflict between the President's assertion of a generalized
privilege of confidentiality and the constitutional need for relevantevidence in criminal trials .
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courts andpartiesin a criminalcase for relevant evidence " The Court, in short,recognized Executive Privilege and then ordered the President to turn over theevidence The Court rejectedanyclaimof a generalExecutivePrivilegeincriminal
proceedings. Ifthe matter involvedmilitarysecrets where the missile silos areburiedinMontana - or diplomaticsecrets — the contents of a secret cablefrom theAmbassador to China the courts are likely to recognize a privilege in theappropriatecase. But the issuesthat surroundedPresidentNixon, and the issues
now surroundingPresidentClinton, do not fall in these categories.
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In addition, the Supreme Court, in its reasoningin UnitedStates v. Nixon,
reliedon the “ necessary andproper clause ofArticle That clause gives Congressthe powerto expandon other powers to allLawswhich shallbe necessaryand proper for carrying into Execution the foregoing Powers. This power isgranted to Congress, not to the President. United States v Nixon suggests thatCongress may wellhave the power, underthe necessary and proper clause, to create,explicitly, some sort of immunity from criminal prosecution for the President
assumingthat thisimmunity (whether temporary or absolute) is not so broad that itviolates other provisionsof the Constitution.87 Congress has not done so. Ithasenacted no statute giving any sort of immunity from the criminal laws to thePresident.
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Robert H. Bork, Indict Clinton ? How Wish It Were Possible, WALL STREET
JOURNAL , March 18, 1998, at A22, col. 3 (Midwest ed.) .
418 U.S.at706 n.16 94 S.Ct. at 3106 n.16, citingMcCullochv . Maryland, 17U.S. (4 Wheat. 316, 4 L.Ed.579 ( 1819) .
86
U.S.CONST. ART. I , 8 , cl. 18.
87
Congress could, if it wished, provide for what is known as “ protective
jurisdiction so that criminal actions that states bringagainst federal officials mustbe triedin federal court rather than state court.
However, it is an open question whether it would be constitutional for Congress to enact
a statute that ,either explicitly or in effect, immunizes the President from the application offederal criminal laws . All of the acts of Congress must comply with the limitations of the Billof Rights . For example , could Congress provide that the President is immune from criminal
law ifhe kills someone, or takes that person's property by theft or deception , or imprisons thatperson? The due process clause of the Fifth Amendment provides that no person shall be" of life, liberty , or property , without due process of law .” If the President ( like an
absolute Monarch ) has immunity from the criminal law, will we really be a nation of laws andnot of men? Did our predecessors revolt from one king only to install another?
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RELEVANT FEDERALSTATUTE REJECTSCRIMINAL IMMUNITY. No federal
statutesrecognize, or purportto recognize, any Presidentialimmunityfromcriminalindictment. Indeed, Congress has done quite the opposite: it has created an
IndependentCounselstatutefor the expresspurposeofinvestigatingallegedcriminalactivitiesofthe President. Infact, it enactedthis statutewith a specificbackground
of criminalallegationssurroundingthisparticularPresident. And this particularPresidentnot only signedthe law, he andhis Attorney Generallobbiedfor thelawso that the SpecialDivision of the Districtof Columbia Circuit could appoint anIndependentCounselto investigate allegedcriminalactivities of this President.88
Attorney GeneralJanet Renotestifiedthat “PresidentClintonandthe Department
of Justicestronglysupportedreauthorization ofthe IndependentCounsel
The legislativehistoryof the IndependentCounsellaw nowherestates that thePresidentcannotbe indicted, or is above the law or isimmunefromthe criminallaw
as longas he is a sittingPresident. The officialLegislativeHistoryof the Ethicsin
GovernmentActof 1978, creatingthe first independentlaw, doesnot suggest that thePresident is immunefrom indictment. In fact, it takes pains to reject any suchsuggestion. The relevantlegislativehistoryprovidesthe following:
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"Subsection ( c) simply gives the special prosecutor who hasinformation which he wants to turn over to the House of
Representativesbecause it involves potentially impeachableoffensesagainst the individualsnames in this subsection, the authority to soturn over that information.
“ This section should in no way be interpreted as identifyingindividuals who are not subject to criminal prosecution prior to beingimpeached and removed from office. In fact, a number of personsholding the positions identified in this subsection have been subject tocriminal prosecution while still holding such an office.
THE BORK MEMORANDUM . The distinguished constitutional scholar and then
88 See generally, Independent Counsel Reauthorization Act of 1994, Pub. L. 103270,4 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS 809-1 ( 1994).
89 4 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE , at 753( 1994) (emphasis added).
90
Legislative History of Ethics in Government Act of 1978, P.L. 95-521, 92 Stat .
at Large 1824, U.S. CODE CONGRESSIONAL AND LEGISLATIVE NEWS 41216 , 4287-88 (emphasisadded)
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SolicitorGeneral RobertBork, concludedin a Memorandumhefiled inthe criminalprosecutionof Vice PresidentAgnew , that the Vice Presidentcouldbe indictedand
tried prior to impeachmentbut the President, in contrast, wouldbe immune from
criminalprosecutionpriorto impeachment. Judge Borkreliedon several arguments.One of the mostsignificantwas that
The Framers could not have contemplated prosecution of anincumbent President because they vested him complete powerover the execution of the laws, which includes, of course , the
power to control prosecutions ."
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IfPresidentClintonhad the complete “ power to controlprosecutions today,JudgeBork's analysiswouldbe applicable. ButPresidentClintonmadesure that hedoes not havethe completepower to controlprosecution.” PresidentClintonandAttorney General Reno lobbied for the IndependentCounsel Act, and President
Clintonsigned it. This lawplacesimportantlimitationson the AttorneyGeneral'spower to remove the IndependentCounsel. The IndependentCounselcan, inbrief,
only beremovedfor cause. PresidentClintonsignedthelaw anddecidedto give up
his completepower to controlprosecution.” Under the statute, the IndependentCounsel can only be removed cause. The Supreme Court upheld theconstitutionalityof limitingthe removalpowerinMorrisonv. Olson.
93
Judge Bork's reasoning implies that the President is subject to indictment if
91
In re Proceedings of the Grand Jury Impaneled December 5 , 1972, Applicationof Spiro Agnew , Vice President of the United States, Case Number Civil 73-965 ,
Memorandum for the United States Concerning the Vice President's Claim of ConstitutionalImmunity , Oct. 5, 1973 , at p . 20.
92
The fact that the President has signed this law is relevant in determiningwhether this law and its implicit authorization of a grand jury to investigate allegedcriminal acts by President Clinton “ disrupts the proper balance between the coordinatebranches” and “prevents the Executive Branch from accomplishing its constitutionally assignedfunctions . Nixon . Administrator ofGeneralServices, 433 U.S. 425 , 2777,L.Ed.2d 867 (1977), quoting United States v. Nixon , 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d
1039 (1974) . In deciding that the law was constitutional, Nixon v . Administrator emphasized:The Executive Branch became a party to the Act's regulation when President Ford signed the
Act into law that case, the Act was applied against a former President. In this case,
the Executive Branch became a party to the Independent Counsel Act when the presentPresident - President Clinton signed a law that was written to create an IndependentCounsel to investigate that same President President Clinton .
93 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) .
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he gives up the power to control prosecutions. And that is exactly what PresidentClinton did.
Judge Bork, in his Memorandum concluding that the Vice President but notthe President can be indictedprior to impeachment, also relied on the TWENTYFIFTH AMENDMENT in support of his conclusion.94 Judge Bork argued that " thePresident is the only officer from whose temporary disability the Constitutionprovides procedures to qualify a replacement From that he concludes: This isrecognition that the President is the only officer whose temporary disability while inoffice incapacitates an entire branch of government.”
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However, the Twenty - Fifth Amendment suggests the opposite conclusion,especially after the decisionin Jones v. Clinton. Becauseof this Amendment, the
temporary disability of the President does not incapacitate an entire branch ofgovernmentbecausethe Constitutionitselfrecognizes the problemsand deals withitina structuralway, notby creatingan immunitybutby providingfor a temporaryreplacement. Inaddition, the indictmentofthePresidentdoesnot incapacitateeitherthePresidentor entire ExecutiveBranch. AaronBurr was quite able to function asa Vice President although indicted. Indictmentdoes not incapacitatethe indictedindividual.
aInthe unlikelyevent that the defense of a civil case (e.g., Jones v. Clinton) orthe defense of a criminal case would prevent the President from performinghisduties, the Executive Branch does not simply shut down. The Twenty FifthAmendment, 3 , provides a procedure for the Executive Branch to continue to
function ] henever the President transmits ...his written declaration that isunableto discharge thepowers andduties ofhis office Thisprocedureisclearlynot limitedto cases ofillness.
One shouldalso notethat itis easy to make a claimthat the ExecutiveBranchwill simply shut down, that claim is difficult to accept. President Clinton,
duringthependency of the Jonescase, saidrepeatedlythat the loomingcivil case was
not affectinghis duties as President. Nonetheless, while he was making thosestatements, the defense attorneysclaimedthat a delay was necessarybecause oftheburdens on the President. The trialjudge inJones v. Clintonrefusedto change the
date ofthecivil trial. When attorneys cry ' too often , they lose their credibility.(Subsequently, the trial judge granted summaryjudgment to the defendant.)
94
In re Proceedings of the Grand Jury Impaneled December 5, 1972, Applicationof Spiro T. Agnew , Vice President of the United States , Case Number Civil 73-965 ,Memorandum for the United States Concerning the Vice President's Claim of ConstitutionalImmunity, Oct. 5, 1973, at p. 18.
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WN
TEMPORARYIMMUNITYCREATEDBY STATUTE. Perhaps Congress could enact
a statute creating some sort of temporary immunity, is, providingthat thereshall be no trialof sittingPresidentuntil after hehas finished his term of office as
President. However, enactment of such a law wouldraise importantconstitutional
and policy issues.
a
First, interms of the Constitution, the SixthAmendmentgrants the accuseda right to a “ speedy and public trial. ” IfCongress were to enact a statute thatimmunizes a sittingPresidentfrom any criminalindictment as long as he holds
office, then the delay in the indictment( and resultingdelay in any trial) will runafoulofthe speedy trial guarantee. Presumablythe Presidentcouldwaive this right,
in any particularcase. However, ifthe Presidentcould waive this right, then heshouldbe able to waivehisother rights. Ifone ofhis rightsis the right to temporary
immunity, thenhe shouldbe able to waive that right as well.
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And, if the Presidenthas a right to temporaryimmunity, he appears that he
may have waivedthis rightby signingthe IndependentCounselAct wasenactedonly after this President andhis Attorney Generaladvocatedits passage.JanetRenostatedthatPresidentClinton stronglysupportedreauthorization thisIndependentCounsel PresidentClintonlobbiedfor, and signed, present
IndependentCounselAct, with full knowledgethat the Act's first court-appointed
counselwouldbe specificallychargedwithinvestigatingcriminalallegationsagainstPresidentClinton.
95 96
As President Clinton stated when he signedthe law:
[ law] ensures that no matter what party controls the
Congressor the executivebranch, an independent, nonpartisanprocess will be in place to guarantee the integrity of public
officials and ensure that no one is above the law .
98 4 UNITED STATES CODE CONGRESSIONALAND ADMINISTRATIVENEWS, at 753
( 1994)(emphasis added).
96 InNixon . Administratorof GeneralServices, 433 U.S. 425, 97 S.Ct. 2777, 53
L.Ed.2d 867 ( 1977) the Court found it significant in deciding the case involving the
PresidentialRecordingsand MaterialsPreservationAct against former PresidentNixonthat the ExecutiveBranchbecamea partyto the Act's regulationwhenPresidentFordsignedthe Act into law U.S. at 426 , 97 S.Ct. at 2781. In this case, PresidentClinton
himself, not a subsequentPresident, signedthe Act into law.
97
Statementby PresidentWilliam J. Clinton upon SigningS.24, June 30, 1994,(continued...)
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President Clinton was correct. As Lloyd Cutler, the former Counsel to President
Clinton, said insupportingthe concept of an Independent Counsel, President Nixonwas certainly not a fluke. The qualities that betrayed him and us are far fromunique, and we will see them infuture administrations again ."
» 98
a
Second, interms of policy, ifCongress were to enact temporal immunityfromcriminalliabilityfor the President, itwould first have to consider the costs. The old
proverb, “ justice delayedisjustice denied" applies with special vigor in the context
of a criminalprosecution. The statute of limitationsmay prevent prosecution. Asveteran prosecutorsknow , ifa trialis delayed, then the memoriesofwitnesses willfade, documentsmay be destroyed. Itis an axiomthat delayinga criminal trial
especially delaying foryears may result in , or be tantamount to creating, a de factoimmunity.
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Inany event, evenifCongresscouldenact a statuteimmunizingthe Presidentfromthe federalcriminal laws, it hasnot done so. Instead, it has enacted a statutethat authorizedan IndependentCounsel to use the federal grand jury system toinvestigateallegedcriminalactivitiesof this President.
LEGALPRECEDENT
THE CASELAWANDLEGALOPINIONS. No legalprecedenthas everconcludedthat the Presidentisimmunefrom the criminallaws. Infact, the caseshave
suggestedthecontrary.
99
Forexample, in 1972 Gravelv . United States noted The -called executiveprivilege has never been applied to shield executive officials from prosecution forcrime
In 1982 , in Nixon v. Fitzgerald , the Supreme Court held that the President
was absolutely immune for civil damages involving actions taken within his officialduties , but also emphasized that this was merely a private suit for damages and
97
(...continued )in, 30 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 1383, July 4 , 1994.
98
Lloyd Cutler , A Permanent Special Prosecutor , WASHINGTON POST, Dec. 2 ,1974 , at A24, col. 4 .
99
408 U.S. 606 , 627,92 S.Ct. 2614 , 2628 33 L.Ed.2d 583 ( 1972) .
100 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d349 (1982).
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that there is “a lesser public interestin actions for civil damages than, for example,in criminalprosecutions." This Court also made clear that there would be no
immunity from civil damage claims, for actions that were not the outerperimeterofhis the President's authority. There is only “ absolute Presidentialimmunity fromdamages liability for acts within the outer perimeter ofhis officialresponsibility
12
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In1994, LloydCutler, the WhiteHouse Counselto PresidentClinton, issuedhis official legalopinion that it was against the ClintonAdministrationpolicy toinvoke Executive Privilege for cases involving “ personal wrongdoing" by anygovernmentofficial. 104
Later, in Clinton . Jones, 105 the Court rejected any notion of Presidential
immunity ( even a temporary immunity) for thePresidentwho is sued by a privatecivil litigant for damages involvingacts not within Presidentialduties. Inthat
case, PresidentClinton's strongest argument supportinghis claim for immunity ona temporary basis, the Court said, was the claim that the President occupies a" unique office ” and burdeninghim with litigation wouldviolate the constitutionalseparation of powers and unduly interferewith the President's performance of hisofficial duties. 106
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Inlanguageof remarkablebreadth, the Jones Court repeatedlystatedthat noamountof this kind of burdenwouldviolate the Constitution. The President, the
Court held: bypresumingthat interactionsbetween the JudicialBranchand theExecutive, even quite burdensome interactions, necessarily rise to the level ofconstitutionally forbidden impairment of the Executive's ability to perform itsconstitutionallymandatedfunctions." 107 The opinion, whichhadno dissents, quotedwith approvalJames Madison'sview that separationofpowers does not meanthat
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457 U.S. 731, 754 & n.37, 102 S.Ct. 2690, 2703 & n.37 (emphasis added).
102457 U.S. at 757, 102 S.Ct. at 2705 .
103457 U.S. at 756, 102 S.Ct. at 2704 .
104
LloydCutler LegalOpinionof Sept. 28, 1994, discussed in, T.R. CutlerOpinedAgainst Broad Use ofPrivilege, LEGALTIMES (OF WASHINGTON, D.C.) 14 (Feb. 9, 1998) .
105
- U.S. 117 S.Ct. 1636 , 137 L.Ed.2d 945 (1997).
106
at S.Ct. at 1645-46 .
107 - U.S. at — 117 S.Ct. at 1648.
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the branches have no partial agency in, or no controul over the acts of eachother.
And, if that were not clear enough, Justice Stevens' opinion added thisclincher
" The fact that a federalcourt'sexerciseofits traditionalArticleIII
jurisdiction may significantly burden the time and attentionof
the ChiefExecutiveis not sufficient to establisha violationof theConstitution
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The Court explainedthat ithas authority to determine whether he has actedwithin the law ." And, “it is also settledthat the President is subject to judicialprocess in appropriatecircumstances.
a
In the Watergate Tapes case ( United States v . President Nixon
arguedthat a Presidentcouldnotbe subjectto the criminalprocessbecause, “ ifthePresidentwereindictablewhile in office, anyprosecutor andgrandjury wouldhave
within theirpowerthe ability to cripplean entirebranchof the nationalgovernmentandhencethewhole system.'. The Court did not reach that question , but Clinton
108
at S.Ct. at 1648 ( emphasis inoriginal), quoting THE FEDERALISTPAPERS, Federalist No. 47, pp . 325-36 ( J. Cooke ed. 1961), which also has emphasis in theoriginal
109 - U.S. at 117 S.Ct. at 1648-49 ( emphasis added ). I tentatively explored theimplications of the strong language of the Jones case is, Ronald D. Rotunda , The True
Significance of Clinton Jones, CHICAGO TRIBUNE, July 8, 1997, at 12, col. 1-6; Rotunda,
Can a President Be Imprisoned?, 20 LEGAL TIMES ( OF WASHINGTON, D.C.) 22-23 ( July 21,1997). However, my earlier writing mainly quoted from that case . Now I have investigatedthis issue fully. Based on my evaluation of the Constitutional history, the Constitutionallanguage, legal precedent, the relevant statutes and law, and the view of commentators,
and I am reaching the conclusion of this legal opinion.
110 - U.S. at 117 S.Ct. at 1649.
111
U.S. at S.Ct. at 1649-50, citing and relyingon Rotunda, Presidents
andEx-Presidentsas Witnesses: A BriefHistoricalFootnote, 1975 U.OF ILL. L.FORUM 1 (1975) ;1 RONALDD.ROTUNDA& JOHNE. NOWAK, TREATISEON CONSTITUTIONALLAW: SUBSTANCE&PROCEDURE (West. Pub. Co., 2ded. 1992) & 1997 PocketPart.
112418 U.S. 683 , 94 S.Ct. 3090, 41 L.Ed.2d 1039 ( 1974) .
113
Brieffor the Respondent, RichardM.Nixon, Presidentof the UnitedStates, in(continued...)
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Jones later rejectedthe argument that the uniqueness of the PresidentialOffice
requiresthat the Courtrecognize some sort of immunity from the law. Clinton vJonesheldthat, even ifthe burdenoflitigationis heavy, the Constitutiongives thePresidentno special redress from that burden.
Ifeven a private party instituting civil litigation may impose special litigationburdens on a sitting President, then the President's argument for a relief from theburdens of litigation is much less when the Federal Government initiates a criminalcase , where the public interest of justice is much greater because the party is theUnited States, 115 and the action is criminal, not civil.
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ARGUMENTS OF PRESIDENT NIXON AND OTHERS THAT THE PRESIDENT ISIMMUNE FROM THE CRIMINAL LAW . President Nixon's argument that anyprosecutor and grand jury would have within their power the ability to cripple anentire branch of the national government is inapplicable here. Neither
prosecutor nor any grand jury cannot institute criminal charges against a sittingPresident . The Independent Counsel Act does not authorize anyone to institutecharges; it only gives its authority to the Independent Counsel, who can only beappointed if the Attorney General (who serves at the discretion of the President) asksthe Special Division for an appointment .
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Nor can itbe arguedthatanindictmentwould close down the entire ExecutiveBranchof the FederalGovernment. The Presidentcan continuehis duties, and afederal court's exercise of its traditional Article IIIjurisdiction may significantlyburden the time andattentionof the ChiefExecutiveis not sufficient to establishaviolationofthe Constitution.'l16 the Presidentis indicted, the governmentwill notshut down, anymore thanit shut down when the Court ruledthat the Presidentmustanswer a civil suit broughtbyPaulaJones.
113continued)
United States v . Nixon, Nos. 73-1766 & 73-1834 (October term , 1973), at p . 97.
114Recall, in Nixon v . Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349
(1982), the Court specifically noted that, when there is merely a private suit for damages,then there is a lesser public interest inactions for civil damages than, for example, in criminalprosecutions. ” 457 U.S. 731, 754 & n.37, 102 S.Ct. 2690, 2703 & n.37.
The IndependentCounsel institutesits criminallitigationin the nameof theUnitedStates. E.g., UnitedStates v . Webster Hubbell, et al. , Crim. No. 98-0151( .
116 - U.S. at 117 S.Ct. at 1648-49 (emphasis added ).NW : 16018 : 70102162 Page 38
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President Clinton may well argue that a criminal indictment ofthe President
would inevitably placethe nation in turmoil and bring the entire government to ahalt. Oddly enough, those same people argue that the solution is to impeach thePresident. Would not an impeachment place the nationinevenmore turmoil?
117Moreover, this argumentwas rejectedinNixonv. Sirica, " which stated, over
a quarter of a century ago, that the President " does not embody the nation's
sovereignty. He is not above the law's commands .... A criminal proceedingwould take no more time than a civil case against the President ( and we knowthat
is Constitutional). Moreover, any sanctionifthere is a convictioncan be postponeduntil after the President is no longer a sittingPresident.
a
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In short, to the extent that case law discusses this issue, the cases do notconclude that the Presidentshouldhave any immunity, either absolute temporary,from the law . On the contrary, they pointto the conclusion that, since the birth of theRepublic, our constitutional system rejected the fiction that the King can do no
wrong. Infact, inthe Clinton v. Jones case, PresidentClintonhimselfspecifically didnotplace any relianceon the claim that the President enjoyed the prerogativesof amonarch.119 He has not stated that he would now embrace such a claim , and, ifhedid, there is no reasonto believe that a court would accept that claim any more thanthe courts acceptedPresidentNixon's claims of immunity.
IMPEACHMENT, INDICTMENT, AND THE COMMENTATORS
117 487 F.2d 700 711 (D.C. Cir. 1973) per curiam )(enbanc).
118 487 F.2d at 711:
“Thoughthe Presidentis electedbynationwideballot, andis oftensaidto representall the people, he does not embody the nation'ssovereignty.He is not above the law's commands: its defects, delays andinconveniences, menhave discoveredno techniquefor long preservingfree government except that the Executive be under the law
Sovereigntyremainsat all times with the people, andthey do not forfeit
through elections the right to have the law construed against andappliedto every citizen . ( footnotesomitted).
In light of this case, it should be clear that the President is subject to a grand jury subpoenato give evidence . The President can , of course , plead the Fifth Amendment and refuse totestify, as could any other witness .
119 at n.24, 117 S.Ct. at 1646 n.24.
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120
A few commentators have questioned whether the impeachment process mustbe completed before an indictment can issue. No case has ever ruled that any officer
subject to the criminal law must be impeached before he or she is prosecutedcriminally . In fact, whenever the issue has been litigated, the cases have held that
impeachment need not precede criminal indictment. As early as 1796 , when the
Constitution and the nation were less than a decade old, Attorney General Leeadvised Congress that a territorial court judge could be indicted for criminal offenseswhile in office although he had not been impeached . Lee, by the way , gave nosuggestion that the President should be treated differently .121
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There certainly is no suggestioninthe language of the Constitutionthat the
Presidentis otherwiseto be treatedany differently than other civil officers. Ifthe
Framerswanted to treat thePresidentdifferently— for example, ifthey wanted tomake sure that the President is immune from indictmentuntil after he has been
impeached they could havewrittensuch language. Theycertainlyknew howto write suchlanguage. Our Constitutionrefers to impeachment” several times, andcreates nospecial rules for the Presidentexceptit providesa different proceduralruleinone specific instance: when the Presidentis tried in the Senate, the Constitution
providesthat the ChiefJustice of the UnitedStates ( rather than the Vice President)
120
As the SeventhCircuitnotedinupholdingthe criminalconvictionof FederalJudgeOtto Kerner:
aConstitution does not forbid the trial of a federal judge for criminaloffenses committed either before or after the assumption of judicial office .The provision of Art. cl. 7 that an impeached judge is toIndictment, Trial, Judgment and Punishment according to Law ' does not
meanthata judge maynotbe indictedandtriedwithoutimpeachmentfirst. The purposeofthe phrasemaybeto assurethatafter impeachmenta trialon criminalcharges is not foreclosedby the principleofdoublejeopardy, or itmaybe to differentiatethe provisionsof the Constitutionfromthe Englishpracticeof impeachment.”
United States v . Issacs, 493 F.2d 1124, 1142 (7th Cir. 1974) . Cf. Ronald D. Rotunda,Impeaching Federal Judges: Where Are We and Where Are We Going ?, 72 JUDICATURE : THEJOURNAL OF THE AMERICAN JUDICATURE SOCIETY 359 (1989); Ronald D. Rotunda , An Essay onthe Constitutional Parameters of Federal Impeachment, 76 KENTUCKY LAW REVIEW 707 ( 1988) .
121 3 HINDS, PRECEDENTSOF THE HOUSEOF REPRESENTATIVES982-83 (Washington,1907).
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presides over an impeachment trial.122 The Framers made the decision to treat the
President differently on one issue only : they explicitly provided that the Chief Justiceshall preside only in the case of a Presidential impeachment. The Framers didnotwant the Vice President from presiding over the impeachment of the Presidentbecause he would be ina conflict of interest: ifthe President were to be impeached,the Vice President would become President.
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Itis generally recognized, as Justice JosephStory noted, that an impeachableoffense is not limitedto a criminal or statutoryoffense.125 Moreover, notall crimes
are impeachable. To determine what are highcrimes andmisdemeanors” JusticeStory advisedthat one mustlook to the commonlaw, butitisnotnecessary to lookto the listof statutorycrimes. Headded:
" Congress have unhesitatingly adopted the conclusion,
thatno previous( violationof statuteis necessaryto authorizean
impeachment for any official misconduct; and the rules of
proceeding, andthe rulesof evidence, as wellas the principlesofdecision, havebeen uniformlyregulatedby the knowndoctrines
ofthe commonlawandparliamentaryusage. Inthe few casesof
122
U.S.CONST. ART. I 2, cl. 5 (Househas sole Powerof Impeachment); ART. I
, c. 6 Senatehas sole Powerto tryall Impeachment� inan impeachmenttrialofthePresident, the ChiefJustice shallpreside); ART. I , 3 , cl. 7 impeachmentsanctionscannotimposecriminalpenalties, butcriminalsanctionsmaybe imposedby separatecriminaltrials) ;ART. II, 4 ( allcivilOfficersof the UnitedStates” are subjectto impeachment).
123Onecan look at quotationsby ofthe Framersofthe Constitution, but,
in with these historicalmaterialsa serious dangerexists of readingintostatements
made two hundredyears ago a meaningnot intendedby the speaker. WATERGATESPECIALPROSECUTIONFORCE, Memorandumof Dec. 26 1973, from Richard Weinberg to Philip
Lacovara, at 4. See also various memorandaattachedto this Memorandumand markedas" confidential.”
This WATERGATE SPECIAL PROSECUTION FORCE , Memorandum — after examining thehistorical record concludes that the historical sources of two centuries ago equivocallending little firm support for or against the proposition that the Framers intended toimmunize a sitting President from criminal liability .” Id . at 9 .
124
See discussionin, RonaldD.Rotunda, AnEssayonthe ConstitutionalParameters
ofFederalImpeachment, 76 KENTUCKYLAWREVIEW707 ( 1988).
See JOSEPH STORY,COMMENTARIES ON THE CONSTITUTION , 403-07, at pp. 28790 (RONALD D. ROTUNDA & JOHN E. ,eds. , Carolina Academic Press, 1987, originallypublished, 1833)
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impeachment, which have hitherto been tried, no one of the
chargeshas resteduponanystatutablemisdemeanour. It seems,then, to be thesettleddoctrineofthehighcourtof impeachment,that though the common law cannot be a foundation of a
jurisdiction not given by the constitution, or laws, that
jurisdiction, when given, attaches, and is to be exercised
accordingto therulesofthe commonlaw ; and that, what are, and
what arenot highcrimes andmisdemeanours, is to be ascertained
by a recurrenceto that great basisofAmericanjurisprudence. " 126
Story'sjudgementhas stood the test of time. Impeachmentchargeshavenot
been limited to violations of federalcriminalstatutes. Federal judges have beenindicted before they are impeached. 127 Indeed, to emphasize the distinction and
separationofimpeachmentandcriminalindictment, one judge was impeachedafterhe hadbeenacquittedin a criminaltrial.128a
126
JOSEPH STORY, COMMENTARIESONTHE CONSTITUTION, 405, at p . 288 (RONALDD. ROTUNDA & JOHN E. NOWAK, eds., Carolina Academic Press, 1987, originally published,1833)(emphasis added).
127
This has long been the rule . In , Attorney General Lee informed Congress
that a judge of a territorial court, a civil officer of the United States subject to impeachment,was indictable for criminal offenses while in office . 3 HINDS, PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES 982-83 (Washington , 1907). The Framers did not intend civil officers
generally to be immune from criminal process . Inre Proceedings of the Grand JuryImpaneled Dec. 9 , 1972, Memorandum for the Unites States Concerning the Vice President'sClaim of Constitutional Immunity, at p . 99, quoting 3 HINDS' PRECEDENTS, supra .
For example , Judge Otto Kerner was indicted and convicted before there was anyimpeachment . His resignation ended the need for a subsequent impeachment . See UnitedStates v . Isaccs, 493 F.2d 1124, 1142 ( Cir . 1974), citing the 1796 Attorney General Opinion
upholding the conviction of Judge Kerner even though he had not been impeached andremoved by Congress . Kerner then resigned from the bench and was not impeached .
Judge Walter Nixon (who did not resign from the bench) was impeached after he wasconvicted . See, Nixon v . United States , 506 U.S. 224, 113 S.Ct. 732 , 122 L.Ed.2d 1 ( 1993) .
128
Judge Alcee Hastings falls in this category. See, Hastings v . Judicial Conferenceof the United States, 829 F.2d 91 (D.C. Cir. 1987) . See generally , WILLIAM H. REHNQUIST ,GRAND INQUESTS ( 1992) . The House impeached Judge Hastings by lopsided vote of 413 to3 ; the Senate removed him in 1989. Hastings was subsequently elected to the U.S. House of
Representatives. Joe Davidson, Ex- Judge Is Likely To Join the Congress That ImpeachedHim , Wall Street Journal Nov. 2 , 1992, at 1992 WESTLAW WSJ 629646.
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INDICTABILITYOF THEVICEPRESIDENT. Similarly, historydemonstrates thatthe Vice Presidentcan beindictedandcriminallyprosecutedbefore beingimpeached( andwhetheror nothehasbeenimpeached) NewJersey, for example, indictedVicePresidentAaronBurrfor the death ofAlexanderHamiltonina duel.129 Burrdid not
act as ifhewere immunizedfrom indictment. Instead, he fled the jurisdictionto
avoidarrest. Burrcontinuedfunctioningas VicePresidentwhileunder indictment;infact, Burr ( as Presidentofthe Senate) evenpresidedover the impeachmenttrialofJustice Chase131 Vice PresidentSpiro Agnew also argued, unsucceccessfully, that hewas immune from indictment prior to impeachment, but he ended up being indictedon corruption charges, pleading guilty, and resigning from office .132
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President Clinton , like President Nixon, may wish to argue that the Presidencyis “ unique , and that the President alone represents Executive Branch .Consequently , it is argued, the President alone is immune from the criminal lawswhile he is sitting as President.
The Court, in Nixon v. Sirica, 133 explicitly rejectedthat argument. “ Becauseimpeachmentis availableagainstall civil Officersofthe UnitedStates, not merely
against the President, U.S. Const. art. II, 4 , it is difficult to understandhow anyimmunitiespeculiar to the Presidentcan emanate by implicationfrom the fact ofimpeachability. A criminal indictment and even a trial do not with theimpeachment device by working a constructive removal of the President fromoffice . thePresidentis acquitted, there is no constructive removal office.
129
1 MILTONLOMASK, AARONBURR329, ) .
Id.
See, WATERGATE SPECIAL PROSECUTION FORCE , Memorandum of Dec. 26 , 1973,from Richard Weinberg to Philip Lacovara , at 29-30.
132
E.g., RICHARDD. COHEN & JULES WITCOVER, A HEARTBEAT AWAY (1974) .
133
487 F.2d at 700 (D.C. Cir. 1973) per curiam ) (en banc) .
134
487 F.2d at 711 n.50.
135 487 F.2d at 711:
Nor does the Impeachment Clause imply immunity from routine courtprocess . While the President argues that the Clause means that
impeachability precludes criminal prosecution of an incumbent , we seeno need to explore this question except to note its irrelevance to the case
(continued )
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Ifthe Presidentisconvicted, the punishment may not include imprisonment, andit does — any imprisonmentcanbe stayeduntil he no longer is a sittingPresident.
The test that Nixonv. Sirica adoptedis directly applicablehere. A criminal
indictmentandeven a trial do not compete with the impeachmentdevice by workinga constructiveremovalof the Presidentfrom office.” However, imprisonmentmay bea " constructiveremovalofthePresidentfrom office ifitis, that sanctioncannot
be imposed on a sittingPresident. But indictmentand trial are not the same as
imprisonment. Ifthereis a trial, the Presidentmay be acquitted. Ifheis convicted,the sanction may not include imprisonment, and if it does, that sanction can bestayeduntilafter the Presidentialterm has ended.
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CONGRESSIONALPOWERTO CONTROLTHE DECISIONTO INDICT. Ifan official
subject to impeachment ( such as the President, Vice President, or a federal judge)couldnot be indicteduntilafter he or she hadbeen impeached, then Congress would
control the decision whether to prosecute. But such a power wouldbe inconsistentwith the doctrine ofseparation ofpowers, which does not give Congress a role intheexecution of the laws. 136
aThe decision to prosecuteor notprosecuteis a decision that cannot liewith the
legislature. Inthe instantcase, it lies with the IndependentCounsel, who, under thestatute, stands in the shoes of the Attorney General. The decision to appoint the
IndependentCounselrests in the unreviewablediscretionof the Attorney General.The U.S.Supreme Courthas madeclear that neither the courts nor Congresscanrequirethe appointmentof an IndependentCounsel."
137
The decision to indict a sitting President lies with the Grand Jury, not with the
House of Representatives or Senate. As Nixon v. Sirica eloquently stated : “ The
federal grand jury is a constitutional fixture in its own right, legally independent ofa
135
( ...continued)beforeus. The orderenteredbelow, and approvedhere inmodifiedform ,is not a form of criminal process. Nor does it compete with the
impeachmentdevice by workinga constructiveremovalof thePresidentfrom office.
487 F.2d 700 at 711 emphasis added).
136
See Bowsher v . Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 ( 1986 ).
137 Morrisonv. Olson, 487 U.S. 654 , 694-95, 108 S.Ct. 2597, 2621, 101L.Ed.2d 569(1988). This point is discussed in detail in note 10, supra.
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theExecutive.. Ifa grandjurywere a legalappendageof the Executive, itcouldhardlyserve its historicfunctionsas a shieldfor the innocentanda swordagainst
corruptioninhigh places. The Court went on to state that, as practical, as
opposed to legal matter, the Executive may, of course cripple a grand juryinvestigation,” but even though the Presidentmay have the practicalpower tohandicapthe grandjury invariousways, “ itis he who mustexercisethem the court
will not assume that burden by evisceratingthe grand jury's independentlegalauthority.
12
THEWATERGATEEXPERIENCE. The WatergateSpecialProsecutionForce didnot indict PresidentNixonbutnamedhiman unindictedcoconspirator. PresidentNixonresignedfrom office, was pardonedby hissuccessor, PresidentFord, andtheissue was never tested incourt. Somemodernday commentatorsassumethat the
WatergateSpecial Prosecutorconcludedthat a sittingPresidentis immunefromindictment. That assumptionis simply wrong.
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The Watergate Special Prosecutor only argued that, in the narrowcircumstancesofthat case - where the Houseof Representativeshadalreadymadethe independentjudgment to begin impeachmentproceedings, when the HouseofRepresentatives, prior to any turnover of GrandJury evidence, hadindependentlydecidedtoconsiderthevery mattersthat were before the GrandJury — thePresident
shouldnot be indicteduntilafter the impeachmentprocesshadconcluded.
198
487 F.2d at 712 n.54 (emphasis added )(internal citations omitted ).
487 F.2d at 713 n.54 (emphasis in original).
140
See LEONJAWORSKI, THERIGHTANDTHE POWER100( 1976). JaworskiarguedthathisWatergateSpecialProsecutionForce couldseek anindictmentagainstthe President
for somecrimes(likemurder), but, Jaworskisaid, he questionedwhetheritwas appropriateto indictthe Presidentfor othercrimes, likeobstructionofjustice, “especiallywhenthe HouseJudiciaryCommitteewas thenengagedin an inquiryintowhetherthe Presidentshouldbeimpeachedon that very ground.”
Of course, Jaworski's comments must be read incontext. First, no case law reaches theconclusion that Jaworski and other lawyers working for him reached at the time . Hisambivalent opinions are not legal precedent .
More importantly, Jaworski's decision was quite nuanced. The distinctions he drewargue that an indictment would be appropriate in the present case because no impeachmentis under way. Inaddition, Jaworski conclusion that the President should not be indicted was
tentative ( doubts, not firm conclusions), and those conclusions, he emphasized, were(continued...)
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140( ...continued)
made in the specific factual and historical context within which the Watergate SpecialProsecutionForce operated. That factual and historicalcontext is different today.
That factual and historical context is important . It is significant that the WatergateSpecial Prosecution Force was a very different animal than the present Office of IndependentCounsel. Unlike the present Office of Independent Counsel, the Watergate Special ProsecutionForce was not a creature of statute . It was merely a creation of executive regulation . Until
the U.S. Supreme Court ruled on the issue, it was unclear if the courts could even rule on anevidentiary dispute between the Special Prosecutor and a “ superior officer of the ExecutiveBranch. United States v . Nixon , 94 U.S. 683, 692-93 , 94 S.Ct. 3090 , 3100 41 L.Ed.2d 1039
( 1974) . The decision of the Watergate Special Prosecutor not to seek to indict President Nixonwas made in the context where even the powers of the Special Prosecutor to subpoena evidence
from the President were unclear. I have examined the series of memoranda dealing with theissue of the amenability of President Nixon to indictment . The various memoranda are not of
one opinion (some favored indictment ), and they specifically raised concerned about thepermissibility of an indictment brought by a Special Prosecutor who was appointed by, and
could be fired by the Attorney General , when the Special Prosecutor was protected only by aregulation signed by the Attorney General, and the validity of this entire arrangement had notbeen tested in court. See, WATERGATE SPECIAL PROSECUTION FORCE , Memorandum of Dec. 26,
1973 , from Richard Weinberg to Philip Lacovara , at 33-34 .
Significantly, the regulationsthat createdthe WatergateSpecialProsecutorprovidedthat the “Prosecutorwill notberemovedfrom his duties without the President'sfirst
consultingthe Majority andMinority Leaders and the Chairmen and rankingMinorityMembers of the Judiciary Committeesof the Senate and House of Representativesandascertainingthat theirconsensusis inaccordwithhis proposedaction.” 38 FED. REG. 30739,
quotedin UnitedStates . Nixon, 418 U.S.683, 695 n.8, 94 S.Ct. 3090, 3101n.8. The Nixon
Courtdid notspecificallyruleonthis provision. We knownow that a law thatgives Congress( or certainmembersof Congress) a role in limitingthe removalof executivebranchofficialsisunconstitutional. As Bowsherv. Synar, 478 U.S.714, 722-23, 106S.Ct.3181, 3186, 92 L.Ed.2d583 (1986) held:
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“ The Constitutiondoes not contemplatean active role for Congressin thesupervisionof officerschargedwithexecutionof the lawsitsenacts....Once the
appointmenthasbeenmadeandconfirmed, however, the Constitutionexplicitly
provides for removalofOfficersof the UnitedStates by Congressonly uponimpeachment congressionalrole in the removalofofficerschargedwith the executionof the laws beyond this limitedone (of impeachment] isinconsistentwithseparationofpowers.
One couldsee why the WatergateProsecutorwas hesitantto claim a power to indict,when the very existenceof the WatergateProsecutorwasconstitutionallyin doubt (a doubt
(continued...)
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140 ...continued)
that bore fruit inSynar). No suchdoubtappliesto the presentOfficeofIndependentCounsel,
for Congresshas no role to play in the removalofthe IndependentCounsel, andthe SupremeCourthas upheldthe constitutionalityof this statute. Morrisonv . Olson, 487 U.S.654, 108S.Ct. 2597, 101L.Ed.2d569 ( 1988) .
At the time that Jaworski wrote his tentative conclusions, the U.S. Supreme Court hadnot even decided that a President could be sued for damages in a civil case . The Court lateranswered yes to that question in, Nixon v . Fitzgerald , 457 U.S. 731, 102 S.Ct. 2690 , 73 L.Ed.2d349 ( 1982).
Moreover, the Memoranda on this issue show that the attorneys in the WatergateSpecial Prosecution Force divided on this issue. E.g., WATERGATE SPECIAL PROSECUTION
FORCE, Memorandum ofDec. 26, 1973, from Richard Weinberg to Philip Lacovara, at 43, 44 :
“The issue is close. Respectable arguments derived from history andcontemporary policy exist on both sides ofthe issue . y conclusion is thatthe Constitution does not preclude indictment, and the issue is really whetherthe incumbent President should be indicted . ” emphasis added .]
See also, JOHNHARTELY, ONCONSTITUTIONALGROUND 133 et seq. ( PrincetonUniversityPress1996), reprintinghismemorandum to Special ProsecutorArchibald Cox that argued that thePresidentcouldbe indicted.
Commentatorsprior to Morrisonv . Olson. The view of legal commentatorsregardingtheindictmentof a sittingPresidentwas mixed, priorto Morrison . Olson. Those
commentatorsclaimingthatthe Presidentisimmunefromcriminalprosecutionhavetypicallydiscussedthe issue ina vacuum, not inthe contextof a specificinvestigationof a Presidentpursuantto a statute, enactedat the President'srequest, authorizinga criminalinvestigation
ofthe President. See GeorgeE.Danielson, PresidentialImmunityfromCriminalProsecution,63 GEORGETOWNL.J. 1065 ( 1975) (arguing that the President is immune from criminal
prosecution); PHILIPKURLAND, WATERGATEANDTHE CONSTITUTION135 ( 1978) ( arguingthatthe Presidentis immunefromcriminalprosecution). Note that these commentatorswrote
withoutbenefitof the SupremeCourtdecisionin, Morrisonv . Olson, 487 U.S.654, 108 S.Ct.2597, 101L.Ed.2d569 ( 1988).
Othercommentatorshave arguedthat the Presidentand all otherofficials are subject
to indictmentpriorto impeachment— inpart becausesome acts may not be impeachablebutarecertainlyindictable. See, RAWLE, A VIEWOF THECONSTITUTIONOF THEUNITEDSTATESOFAMERICA 215 (2d ed. 1829 :
theordinarytribunals, as we shall see, are notprecluded, eitherbeforeor afterimpeachment, from taking cognizanceof the public and official delinquency.
(continued...)
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However prior to that situation in the case where the House of
Representativeshad not already begunimpeachmentprocess historians forget thatthe Watergate Special Prosecution Force was advised that the President could be
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( emphasisadded).
Quotedin, WATERGATESPECIALPROSECUTIONFORCE, Memorandumof Dec. 26, 1973, from
RichardWeinbergto PhilipLacovara, at 13. See also otherauthoritiescited therein. Accord,
JOHNHARTELY, ONCONSTITUTIONALGROUND 133 et seq. ( PrincetonUniversity Press 1996) ,
reprintinghis 1973 memorandumto SpecialProsecutorArchibaldCox arguingthat Presidentcould indicted.
Commentators after Morrison v . Olson . Post-Morrison v. Olson commentators have
tended to conclude that the President is not above the law. See, Gary L. McDowell , Yes, You
Can Indict the President, WALL STREET JOURNAL , March 9, 1998, at A19, col. 3-6 (Midwest ed.) ;Edwin B. Firmage & R.C. Mangrum , Removal of the President: Resignation and the ProceduralLaw of Impeachment, 1974 DUKE L.J. 1023 (arguing that President is not immune from thecriminal process); Eric Freedman , The Law as King and the King as Law: Is a President
Immune from Criminal Prosecution Before Impeachment 20 HASTINGS CONST.L.Q . 7 ( 1992)( thorough article concluding that the President is not immune ); Terry Eastland, The Power to
Control Prosecution , 2 Nexus 43, 49 ( Spring, 1997)(referring to Morrison v . Olson andconcluding that the President is not immunized from prosecution ) ; M. Freedman ,
Achieving Political Adulthood , 2 NEXUS 67, 84 ( Spring, 1997 ), concluding :
" To the extent that the belief that the President should have a blanket
immunity from criminal prosecutionsmanifests itself in legal form , legaldecisionmakersshouldrejectit. The argumentis inconsistentwith the history,structure, andunderlyingphilosophyofour government, atodds withprecedent,andunjustifiedby practicalconsiderations.”
See also, Scott W. Howe , The Prospect of a President Incarcerated , 2 NEXUS 86 (Spring, 1997),ar ing that the President has no constitutional immunity from criminal prosecution , butCongress may wish to create some limited immunity by statute .
Jay S. Bybee, Who Executes the Executioner ?, 2 NEXUS 53 (Spring, 1997) argues thatbefore the President, or federal judges, can be tried, they first must be impeached, anargument that is more in the nature of a polemic, because it uproots two centuries ofpracticeregarding the prosecution of federal judges. See also Akhil Reed Amar & Brian C. Kalt, The
Presidential Privilege Against Prosecution, 2 NEXUS 11 ( Spring, 1997), which presents such abroad argument for Presidential immunity that it is inconsistent with Clinton . Jones, — U.S.- 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).
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indicted
USEOF GRANDJURYTO COLLECTEVIDENCEFORANIMPEACHMENT.
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INTRODUCTION . If it is unconstitutional for a federal grand jury, actingpursuant to the Independent Counsel statute to indict a President for engaging, in
his private capacity , in serious violations of federal law , then it would be a grossabuse of the grand jury powers and a violation of federal statutory and constitutionallaw for that grand jury to investigate whether the President has committed anycriminal law violations. But we know , after Morrison v . Olson ,142 that it isconstitutional for the Independent Counsel to use the grand jury to investigate thePresident. That conclusion was implicit in the holding ofMorrison . Hence it shouldbe constitutional to indict a sitting President because it would not be constitutional
to use the grand jury to investigate ifit could not constitutionally indict.
Let us analyze this argument in more detail. First, as all the legalcommentators acknowledge:
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The grand jury is authorized only to conduct criminal investigations.Accordingly , it is universally acknowledged that the grand jury cannotbe used to conduct an investigation or even explore a particular line
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Thus, as the U.S. Supreme Court has stated, the federal government may not startor continue a grand jury inquiry where no criminal prosecution seem [s] likely " Ifthe grand jury investigation is merely a pretext for a civil evidence- gathering
141JOHN HART ELY, ONCONSTITUTIONAL GROUND 133 et seq. (Princeton University
Press 1996), reprinting his: Memorandum to Special Prosecutor Archibald Cox on the Legalityof Calling President Nixon before a Grand Jury ( 1973). Professor Ely explains that“ prosecution of a sitting (non -impeached ) president must be possible, or else there would be noway to reach” crimes that do not rise to the level of impeachment . Id. at 139. Ely expanded onthose arguments in id at 140-41.
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487 U.S. 654 , 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) .
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2 SARASUN BEALE & WILLIAM C. BRYSON, GRAND JURY LAWAND PRACTICE 8.01at 2 (Callaghan & Co., 1986 )(emphasis added) .
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UnitedStates v . Sells EngineeringInc., 463 U.S. 418, 432, 103 S.Ct. 3133, 3142,77 L.Ed.2d743 ( 1983) . See also, 2 SARA SUNBEALE& WILLIAMC. BRYSON, GRANDJURY LAWAND PRACTICE at 51 (Callaghan & Co., 1986)
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mission, the grandjury process is clearly being abused under any standard ."»
There are few cases where the courtshave found that the Governmenthas
abusedthe grandjury systemin order to gain evidence that would or could not beusedina criminalprosecution. But, where the courts find a badmotive, they do notallow an illegaluse ofthe grandjury system.
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Inthe presentcase, itis quite clear that one of the purposes of the grandjuryinvestigation conducted by the Office of Independent Counsel is to investigatePresidentClinton. Of course, the OIC andthe grand jury have other persons whom
it is investigatingand whom itmay indict (or already have indicted). And, to thatextent, the actions of the several Grand Juries in this investigation are proper.Morever, to the extent that it is conducting a valid criminal investigation, it maydisclose the fruits of itsinvestigation for civilpurposes to the extent that statutes orrules governing such disclosure so authorize.
However, inthis caseitisclear that some of the grandjury's subpoenas, some
oftheenergyofthe OIC, and a portionof the mandateofthe OIC are intendedsolelyto investigatecriminalallegationsagainst the Presidentin connectionwith issuessuch as Whitewater, Castle Grande, the FBIWhite Housefiles, the allegedillegal
abuses involvingthe Travel Office of the White House, and most recentlyallegations involving possible Presidential perjury subordination of perjury,
tamperingofwitnesses, andobstructionofjusticeinthe litigationcaptionedas Jonesv. Clinton
The purpose of the OIC investigation and the grand jury investigation is todetermine whether the President has , or has not, engaged in serious crimes. If thegrand jury cannot indict the President for such crimes , then it has no business
investigating the President's role in such crimes. Impeachment, after all, is an
145 2 SARASUNBEALE& WILLIAMC.BRYSON, GRANDJURY LAWAND PRACTICE 8.03at 9 (Callaghan& Co., 1986) .
See also UnitedStates v . Proctor & Gamble Co., 187 F. Supp. 55, 57-58 (D.N.J. 1960) .This case was on remandfrom , United States v . Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct.983, 2 L.Ed.2d 1077 (1958), and it applied the test adopted in that case.
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E.g., United States v . Baggot, 463 U.S. 476, 103 S.Ct. 3164 , 77 L.Ed.2d 785(1983); RULE 6 (E) , FEDERAL RULES OF CRIMINAL PROCEDURE .
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147admittedly noncriminal proceeding Ifthe purpose of the grand jury investigationof President Clinton is not to indict even if the evidence commands indictment ( or if
its purpose is simply to investigate possible impeachable offenses on behalf of theHouse of Representatives and then turn over this information to the House ), then , ineither case, the grand jury is being misused. 148
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WHENTHE GRAND JURY ISUSEDTO TURNOVER INFORMATIONTO ANOTHER
UNITOF GOVERNMENT. Itwouldbewrong, for example, to use the grandjury solelyto gather informationto be usedby another governmentalunit. Ifthe grandjury is
investigatingingood faith to determineifthe Presidenthas engagedinany criminalconduct, it may turn over, to the House of Representatives, informationthat ithasgatheredinits investigation of allegedcriminality that also is relevant to the House
even if the grand jury ultimately concludes that it is not relevant to a criminalinquiry
The importantpoint is that the grandjury must act ingoodfaith and not as
the agent of another entity of the government “ It is sufficient ifthe agencies areengagedin goodfaith investigations within their respective jurisdictions, and that
one agency isnot simply serving as a cat's paw for another, under the pretext ofconductingitsown investigation. Grand Juries cannot be used as a short cut forthe House of Representatives to collect informationthat otherwise would be moredifficult to secure. The OIC cannot use the grand jury to investigate allegedcriminal activity by the President if an indictment (assuming that the evidencewarranted it) is “merely an unexpectedbare possibility. The OIC (which sits inthe shoes of the Attorney General must have an open mind whether to seek anindictment, butitcannot have an open mindabout this issue ifitwouldbe illegalor
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E.g.,the sanction cannot result in imprisonment or fine. The standard of proof
is not beyond a reasonable doubt. There is no jury of twelve people drawn from the generalpublic . An impeachment and removal do not prevent a criminal prosecution .
148On the other hand, it would be proper to turn over information secured in good
faith for purposes ofsecuring an indictmentbut that is also relevant to impeachment.
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2 SARASUNBEALE& WILLIAMC. BRYSON, GRANDJURYLAWANDPRACTICE
at 6 (Callaghan& Co., 1986), citing, UnitedStates v . Proctor& Gamble Co., 187 F. Supp. 55,58 (D.N.J. 1960) .
United States v . Proctor & Gamble Co., 356 U.S. 677, 683-84, 78 S.Ct. 983, 987,2 L.Ed.2d (1957) .
United States v . Proctor & Gamble Co., 187 F. Supp. 55, 58 (D. N.J. 1960) .
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unconstitutional to indict the President.
Inotherwords, ifthe statutecreatingtheOIC andauthorizingit to investigatethe Presidentandturn over relevantinformationto the Houseof Representatives
does not authorizeor permit the OIC to seek an indictmentof the President, the
statute is authorizingan abuse of the grand jury powers, an unconstitutionalperversionof the Fifth Amendment, which created the grand jury. It is clearlyimproperto use the grandjury, a creatureof the criminalprocess, to collectevidence
for noncriminalpurposes. Itis unconstitutionaltouse the grandjury solely as a toolof a Houseimpeachmentinquiryto investigatein an area where itcouldnot indictevenifthe evidencewarrantedan indictment.
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WHEN THE GRAND JURY USED TO INVESTIGATE A CRIMINAL DEFENDANTCANNOT BE INDICTED FOR A CRIME BECAUSE HE ALREADY BEEN
INDICTED . It is improper for the Government to use the grand jury to investigate atarget's role in a matter after the grand jury has indicted the target. Ifthe grand juryhas already indicted a target, it is an abuse of the grand jury system to use the grandjury to investigate further on that matter. Because the grand jury cannot indict thetarget on the matter in question the target, after all, has already been indicted
it cannot use its investigatory powers to further investigate the target.
That logic applies here too . If the grand jury cannot indict the target (becausehe is President ) then it cannot use its investigatory powers to further investigate thetarget .
Grand Jury Presentments. In some instances, a Grand Jury can issue areport, a presentment without issuing any indictments. But such a Grand Jury isinvestigating alleged criminal activities and could indict. Even in these circumstances, civillibertarians have raised serious objections to such presentments.
No Grand Jury should be the alter ego of the House Judiciary Committee or any otherHouse entity investigating possible impeachment. The House ofRepresentatives has the “ solepower to impeach CONST., ART. I , 2, cl. 5 (House has “sole Power of Impeachment ) andshould not treat the Office of Independent Counsel as its alter ego or tool
E.g., UnitedStates v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964) , cert. denied, 379U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 ( 1964); In re GrandJury Subpoena Duces Tecum DatedJanuary 2 , 1985 ( Simels), 767 F.2d 26, 29-30 (2d Cir. 1985) ( To protect the grand jury frombeing abused ,” where defendant makes a “ strong showing that the government's dominantpurpose in issuinga subpoena was pretrial preparation,” for an already pendingindictmentthe court will quash the subpoena. In this case, the Court of Appeals reversedthe trial courtandquashed the subpoena.) See also Inre National Window Glass Workers, 287 F. 219 (N.D.Ohio 1922).
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WHEN THE GRAND JURY USED TO INVESTIGATEA MATTER WHERE ITBE UNCONSTITUTIONALTO INDICT. As discussed above, the Speech or
DebateClausegives an absoluteconstitutionalprivilegethatwill protecta Member
of Congress from being questionedabout his or her vote on a legislative matter.Assume that a grand jury was investigating a matter where it could notconstitutionallyindict, given the narrow , but absolute protectionsof the SpeechorDebate Clause. It would be unconstitutionalfor the grand jury to inquire intomatters where it could not constitutionally indict. the grand jury cannotconstitutionallyindictfor particularactions becauseof the Speechor DebateClause,then itcannotconstitutionallyask questionsregardingthis matter. Courtsshould
hesitate to limit the grand jury's investigative power in deference to this
congressionalprivilege."
If the grand jury cannot indict the President (because it would beunconstitutionalto do so) , then the IndependentCounselcertainly cannot use thegrandjury to investigatePresidentClinton. Ifthe Presidentis somehowimmunefrom indictmentand above the law, then the grandjury (whether inArkansasor in
Washington, D.C. or elsewhere) would be actingunconstitutionally, as would thefederal trial judges who supervise these Grand Juries. Ifit is unconstitutionaltoindict the President, it is unconstitutionalfor the grandjury to investigatehim .
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But we know that it is constitutional for the Independent Counsel to
investigate the President to determine ifhe should be indicted for criminal acts. Thatwas what Morrison v . Olson was all about .15724
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Morrison upheld the constitutionality of the Independent Counsel Act. Thatcase decided , implicitly , that it must be constitutional to indict the President if theevidence warrants and demands such an indictment . That conclusion was implied
in the holding of Morrison Olson , and it explains why the Court later issued itsstrong language in Clinton v. Jones, rejecting the notion that the federal judiciary'sexercise of jurisdiction over the President creates a problem of separation of powers .
Gravel . United States, 408 U.S. 606, 628-29, 92 S.Ct. , 2628-29, 33L.Ed.2d 583 (1972).
Gravel v . UnitedStates, 408 U.S. 606, 629 n.18, 92 S.Ct. , 2629 n.18 33L.Ed.2d583 (1972).
156S. DIAMOND, FEDERALGRAND JURY PRACTICEAND PROCEDURE at
6-31( Aspen Publishers, Inc. 1995). See also id 4.01[D] .
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487 U.S. 654, 108 S.Ct. 2597 , 101L.Ed.2d569 (1988 ).
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" Thefact that a federal court's exercise ofits traditional Article III
jurisdiction may significantly burden the time and attention of
the ChiefExecutive is not sufficient to establisha violation of theConstitution.
As discussed above, distinguished Constitutional scholar, former FederalJudge, and former Yale Law Professor Robert Bork concluded, in a famousMemorandumhe filed when he was Solicitor General of the United States, thatFederal prosecutors could investigate and indict a sitting Vice President It isnoteworthyto recall the first sentence of that Memorandum :
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The motionby the Vice President Spiro T. Agnew ] posesa grave and unresolved constitutional issue whether the VicePresident of the UnitedStates is subject to federal grand juryinvestigation and possible indictment and trial while still inoffice.
Solicitor GeneralBork properly concludedthat, ifthe Vice Presidentcould not beindicted, the grandjury could not subject him to an investigation. Because, he
concluded, the grandjury couldconstitutionallyindictthe Vice President, thereforeitcouldconstitutionallyinvestigatethe Vice President.
CONCLUSION
We must keep inmindthe following:26
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the decisionofthe U.S. Supreme Court inMorrisonv . Olsonupholdingtheconstitutionalityofthe IndependentCounselAct andthe authorityit bestows on a grandjury to investigatecriminalcharges involvingthePresidentof the UnitedStates;
the decisionof PresidentClinton to lobby for and sign this legislationfullknowledgethat a prime focus ofthat Act would be allegations
surroundinghis own conduct;
the decision of Congress not to enact any legislation conferring
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at S.Ct. at 1648-49 (emphasis added).
In re Proceedings of the Grand Jury Impaneled December 5 , 1972, Applicationof Spiro T. Agnew , Vice President of the United States, Case Number Civil 73-965 ,
Memorandum for the United States Concerning the Vice President's Claim of ConstitutionalImmunity, Oct. 5 , 1973, at p. 1.
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immunity from criminal prosecution but, on the contrary , to enactlegislation to create the Office of Independent Counsel to investigateallegations of criminal conduct involving President Clinton
the legislative history of the law creating an Independent Counsel
indicating specifically that Congress did not intend to bestow anycriminal immunity to any person covered by that Act;
President Clinton's full knowledge that the Act's first court -appointed
counsel would be specifically charged with investigating PresidentClinton;
the decision of PresidentClinton's Attorney General to petition the
Special Division to appoint such an Independent Counsel;
the subsequent decision of President Clinton's Attorney General onseveral occasions to petition the Special Division to expand thejurisdiction of the Independent Counsel to include other allegations ofcriminal conduct involving President Clinton .
the counts of an indictment against President Clinton would include
serious allegations involvingwitness tampering, document destruction ,perjury, subornation of perjury, obstruction of justice, conspiracy, andillegal pay -offs counts that in no way relate to the PresidentClinton's official duties, even though some of the alleged violationsoccurred after he became President.
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These factors all buttress and lead to the same conclusion: it is proper,constitutional, and legal for a federal grand jury to indict a sitting President forserious criminal acts that are not part of, and are contrary to, the President's officialduties . Inthis country, no one, even President Clinton, is above the law.
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This conclusion does not imply that a President must be required to serve anactual prison term before he leaves office . The defendant President could remain freepending his trial, and the trial court could defer any prison sentence until he leavesoffice.161 The defendant -President may petition the courts to exercise its discretion
in appropriate cases . It is one for the President to petition the court to exerciseits discretion ; it is quite another for the President to announce that he is above the
law and immune from criminal prosecution .
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There is, after all, no risk of flight to avoid prosecution.
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See Ronald D. Rotunda, When Duty Calls , Courts Can Be Flexible , WASHINGTONJanuary 29 , 1997 , at p . A21, col . 2-3 .
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Beforeor after indictment, Congresscould exercise its independentjudgmentas to whether to begin impeachmentproceedings or await the conclusion of the
criminalproceedings.162 Or, ifCongressdidnotwish to postponethe impeachmentproceedings, Congress if it wished and if the President agreed), could ask theIndependentCounsel to delay the criminal trial. The Presidentcould also petition
the court to stay or postpone the criminaltrialuntil the impeachment proceedingswere concluded
Neither the criminal proceeding nor the impeachment proceeding will controlthe other. As Solicitor General Bork pointed out a quarter of a century ago:
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“ Because the two processes have different objects, theconsiderations relevant to one may not be relevant to the other. ”
For that reason, neither conviction nor acquittal in one trial, though it may bepersuasive, need automatically determine the result in the other trial.
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And, the House or Senate may conclude that " a particular offense, thoughproperlypunishablein the courts, did not warrant” either impeachmentor removalfrom office. 164
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ALBERT E.JENNER , JR . PROFESSOR OF LAW
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Of course, if Congress decides to institute impeachmentproceedings, it will
decide whethera penalty is to be imposed, and, ifso, whatpenalty is appropriate(e.g., removalfrom office, or a lesserpenalty, such as a publiccensure).
163
In re Proceedings of the Grand Jury Impaneled December 5 , 1972, Applicationof Spiro T. Agnew , Vice President of the United States, Case Civil 73-965 ,
Memorandum for the United States Concerning the Vice President's Claim of ConstitutionalImmunity , Oct. 5, 1973 , at p . 9 (Robert Bork , Solicitor General) .
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Inre Proceedingsof theGrandJury ImpaneledDecember5 , 1972, Applicationof Spiro T. Agnew, Vice President of the United States Case Number Civil 73-965,Memorandum for the United States Concerning the Vice President's Claim of Constitutional
NW: 9 (Robert Bork , Solicitor General) .
