[W]ould the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?(1)
The image of a President "band[led] from pillar to post" by the courts has tremendous resonance for anyone concerned about the doctrine of separation of powers.(2) Thomas Jefferson's articulation of this concern in his letter to George Hay on June 20, 1807 reflects the inherent tension between the model of an accountable Chief Executive and the necessity of an independent Executive Branch.(3) It is a question that begs an answer with every scandal involving allegations of criminal acts by a President in office. During the Clinton crisis, the susceptibility of a sitting President to indictment and prosecution was only touched upon in the debates. The primary thrust of the constitutional debate focused on the meaning of "high crimes and misdemeanors," which was the subject of an unprecedented hearing of nineteen expert witnesses in the House of Representatives.(4) A prior hearing, however, was held in the Senate that specifically addressed the controversial question of the prosecution of a sitting American President.(5) This Article addresses the latter question raised by the Senate.(6)
As one of the academics testifying in both hearings,(7) I was struck by the common historical and theoretical issues in the debates over the impeachment and indictment of Presidents. The latter issue of indictment, however, was less immediate for the academic debate during the Clinton crisis, which largely turned on the scope of impeachable offenses. This left the Senate hearing as the only comprehensive discussion of this question despite the fact that it has been raised in prior administrations(8) and President Clinton continues to face the possibility of indictment.(9) The question of the indictment of an American President only heightens the concerns raised over the impeachment standards. Both the indictment and impeachment of a Chief Executive are seen as threats to a tripartite system designed for balanced authority between the branches. Academics who argued for a higher standard for impeachment often voiced equally strong objections to the concept of the prosecution of a sitting President.(10) This Article addresses the arguments advanced in the Senate hearing and in academic writings in opposition to the concept of the prosecution of a sitting President.(11) As stated in the Senate hearing, I believe that the indictment of a President is constitutionally permissible and, in some circumstances, essential to the preservation of core constitutional principles. The thrust of this Article, however, is to respond to the textual, historical, and functional arguments against such indictment authority. As will be shown, past textual and historical arguments in favor of Presidential immunity can be set aside upon closer scrutiny, thereby allowing for a more focused debate over the functionalist implications of Presidential prosecutions. The functionalist arguments against immunity have been made with obvious hypotheticals of murderous Presidents and compromised legislators.(12) It is the countervailing hypotheticals used by advocates of immunity, however, that have sustained much of this debate: the fear of hounded Presidents or abusive prosecutors and judges. This Article will explore the legal and practical basis of these hypotheticals as part of the critique of the functionalist rationale for immunity.
The question of indicting a sitting President is often raised as part of a scenario in which impeachment efforts fail and an indictment is pursued as an alternative (and less credible) form of punishment.(13) This creates the false impression that impeachment and indictment are variations on a common theme. In my view, they are not. Impeachment serves a distinct, non-punitive function. The Impeachment Clause is designed to protect the office of the presidency and the country from, as James Madison explained, "the incapacity, negligence or perfidy of the chief Magistrate."(14) Conversely, indictment is designed to punish an individual for an offense committed against other individuals or the State.(15) Since indictment and impeachment serve distinct purposes, they should not be evaluated as alternative but rather as independent processes to which a President may be subjected. Put another way, indictment of a President satisfies the legal obligations of a citizen for criminal acts--an independent obligation that is neither satisfied nor negated by an impeachment decision.(16)
In Part II, this Article will address the sequentialist theory that the text of the Constitution mandates a form of immunity from prosecution for sitting Presidents. Part III explores the historical basis for the theory, particularly in the oft-cited statements of early constitutional figures. Part IV turns to the functionalist theory advanced by various academics in favor of immunity. This theory suggests that the unique status of the President in the tripartite system mandates immunity and that, conversely, any indictment of a sitting President would materially undermine the separation of powers. The arguments in favor of the theory reveal the continued tendency to personify the Executive Branch in the body of the Chief Executive.(17) These arguments, however, rest on a model of Presidential authority that was considered but never adopted by the Framers.(18) It is a model that should have even less currency in a modern Executive Branch composed of a massive and largely self-executing system of agencies and subagencies.(19) Additionally, the sequentialist theory is based on highly questionable assumptions as to the likely criminal process for the indictment and prosecution of an American President.(20) The indictment of an American President would certainly be traumatic for the nation. The Madisonian system, however, was designed to handle such trauma and, as will be shown, predictions of its demise in a Presidential prosecution prove greatly exaggerated.(21)
THE SEQUENTIALIST THEORY: THE TEXTUAL AND HISTORICAL BASIS FOR PRESIDENTIAL IMMUNITY FROM PROSECUTION
Any textual analysis of the sequentialist theory of Presidential immunity inevitably leads to a "curious incident," not unlike the one faced by Sherlock Holmes in the investigation of the Silver Blaze case.(22) In the course of his investigation, Holmes noted "the curious incident of the dog in the night-time."(23) Dr. Watson, however, corrected Holmes that "the dog did nothing in the nighttime."(24) "That was the curious incident," Holmes replied.(25) In reviewing the constitutional basis for the sequentialist theory, one is struck by the curious absence of a constitutional "bark" or any indication that the Drafters intended such a major distinction.
The Framers were acutely aware of the relative powers of the branches and specifically the power of the Chief Executive. The Framers were also aware of the need for privileges and immunities, and incorporated such provisions in the Constitution.(26) Thus, Congress was expressly given immunity from prosecution in Article I, a protection compared at the time with the President's lack of immunity.(27) Article II, however, does not state any such immunity for the President, though (as will be shown) such immunity was contemplated but not implemented.(28) The language of Article I, Section 3, states:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to the Law.(29) Although there is no immunity language, the sequence of the language in Article I has led to a creative textualist argument. The "sequentialist" theory posits that there is significance to the fact that the reference to "Indictment, Trial, Judgment, and Punishment" follows the reference to impeachment. Accordingly, it is suggested that the Drafters intended impeachment to precede indictment. This view is supported by historical references that appear to assume such a sequence and, conversely, appear to reject the concept of the prosecution of a sitting President.
The textualist basis for the sequentialist theory ignores an obvious interpretation of the structure of Article I in order to fashion a plausible claim to originalist intent. On its face, the language of Article I can as easily be read as an express limitation on the authority of Congress to restrict their impeachment powers to legislative acts of removal as opposed to actual physical punishment (left to the Judicial Branch).(30) The second clause of the sentence would appear to preserve the authority to prosecute a President as a citizen and to reaffirm that Article I does not limit such personal accountability in the Judicial Branch. Certainly, the textualist rationale for the sequentialist theory has not been embraced in past judicial cases. Courts have rejected the textualist claim for the sequentialist theory as forced and unpersuasive in judicial cases,(31) although the question has never been tested in a presidential context.(32) In the constitutional challenge by former Judge Alcee Hastings, the Eleventh Circuit held that:
[s]ection 3 represents an attempt by the framers to anticipate and respond to questions that might arise regarding the procedural rights of the accused during the impeachment process. Like article III, [section] 2, cl[ause] 3 which provides that the right to trial by jury does not extend to impeachment proceedings, section 3 serves to clarify the rights of civil officers accused of high crimes and...