TABLE OF CONTENTS INTRODUCTION I. PRESIDENTIAL IMMUNITY A. Distinguishing Official and Unofficial Conduct B. The Timing of Prosecution for Unofficial Criminal Conduct C. Federalism Concerns: State Prosecution of a Sitting President D. Confronting the Statute of Limitations Problem E. The Constitution's Answer: Congressional Impeachment II. PRODUCTION OF EVIDENCE III. PRESIDENTIAL SELF-PARDONS CONCLUSION APPENDIX A INTRODUCTION
Special Counsel Robert Mueller is conducting an investigation into Russia's interference in the 2016 presidential election and the possible coordination and cooperation with the Donald Trump presidential campaign. (1) The investigation has raised numerous legal questions with serious political and legal implications. (2) Chief among them is whether a sitting President can be indicted and prosecuted for criminal wrongdoing. (3) A related question is whether and to what extent, in the event of an official investigation, a sitting President can be compelled to provide evidence--in the form of oral and written testimony, as well as documentary evidence. (4) Finally, assuming there is potential criminal liability, does a sitting President have the power to issue a self-pardon? (5) These are relatively novel questions in the law, and it is not surprising there is little guidance from the courts given the reluctance by most judges to weigh in on potentially serious political questions. (6)
This Article intends to clarify some of the more difficult legal issues in our nation's separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. (7) The treatment of unofficial conduct is less predictable. (8) Based on precedent and our nation's founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal prosecution for unofficial acts or conduct unrelated to his or her fitness to hold office. (9) However, because of separation of powers considerations, the courts are likely to require deferral of any such prosecution until the President no longer holds office. (10) Although not as clear, constitutional considerations would likely also require deferral of any investigation or indictment, at least those requiring the direct and material participation of the President. (11) On the other hand, the President can be compelled to produce certain documentary evidence when doing so is necessary and would otherwise be unavailable in connection with a criminal investigation. (12) The argument for presidential immunity with respect to production of evidence is stronger, though likely not absolute, with respect to oral testimony. (13) Nonetheless, mindful of the President's duties, the courts are likely to afford the President great latitude in the time, place, and manner of providing oral testimony. (14) Finally, there is nothing in the Constitution that expressly prohibits or limits the President from issuing a self-pardon. (15)
Our nation was founded on the principle of the rule of law. This means that the law is applied equally to every person, and no person is above the law. (16) This is one of the foundational tenets of our system of government, a belief so basic to Americans, so ingrained in our culture, as to be beyond question or serious disagreement. (17) Justice demands that people be held accountable for their actions. (18) Indeed, one could argue that the failure to prosecute someone in the face of evidence of criminal activity--including an incumbent President--would undermine confidence in our government institutions and seriously impair the integrity of the criminal justice process. (19) For these reasons, it may appear obvious that a President who engages in wrongdoing can be subject to criminal prosecution. It is worth noting, though, that in our nation's long history of remarkable yet imperfect Presidents, none have ever been prosecuted while in office for a crime. (20)
Distinguishing Official and Unofficial Conduct
Common sense supported by the weight of history tells us that every President will have to make controversial decisions while in office. (21) Those decisions flowing either directly or indirectly from the President's duties and responsibilities under the Constitution and laws of the United States typically qualify as "official acts." (22) Some official decisions will be unpopular; still others will give rise to claims of illegality.
Imposing criminal liability upon a sitting President who acts in good faith, often on the advice of government lawyers, could have a chilling effect on the President's decision-making. (23) It could paralyze a President from undertaking controversial measures that he or she considers necessary to serve American interests. (24) Guarding against this paralysis is arguably more important to the welfare of our nation than imposing criminal liability to conduct that rarely occurs, especially when there are other adequate means to hold a President accountable. (25) In other words, the interest in punishing official presidential actions that are taken in good faith but which some may view as violating the law nevertheless does not outweigh the significant burden that even attempted criminal prosecution would impose on the office of the President. (26)
Additionally, no President can effectively govern or make necessary personnel decisions if subordinates within the executive branch have the power to judge, second-guess, or challenge the President's authority and decision-making in an official capacity. (27) Watergate Special Prosecutor Leon Jaworski disagrees, arguing that the government in practice is supervised through executive departments and agencies without direct presidential supervision. (28) While true to a degree, our constitutional structure of separation of powers places the ultimate power and responsibility of the executive branch in the hands of the President, (29) and he or she must be able to govern without fear of retaliation or insubordination by other executive branch officials, including prosecutors at the Justice Department. (30)
In the case of Nixon v. Fitzgerald, the Supreme Court of the United States held that a sitting President enjoys complete immunity from civil liability for actions taken while in office, reasoning that the President must be able to make decisions and take actions for our country without fear of civil liability. (31) Based on this precedent, courts will likely recognize absolute immunity from federal criminal process in connection with the President's official conduct, which extends to "all acts within the 'outer perimeter' of [the President's] official responsibility." (32)
Fitzgerald itself acknowledges a key textual issue with any argument supporting presidential immunity: the Constitution contains no express grant of immunity from liability for the President for either official or unofficial conduct. (33) The absence of an express grant of executive immunity was significant to Professor Ronald Rotunda, who in 1998, wrote to Independent Counsel Kenneth W. Starr that the Constitution explicitly grants limited immunity to lawmakers for certain actions. (34) "If the Framers of our Constitution had wanted to create some constitutional privilege to shield the President," he argued, "they could have drafted such a privilege." (35) With due respect to Professor Rotunda, our Supreme Court jurisprudence includes many examples where the Court has found an implied grant of constitutional authority. (36) In Fitzgerald, the Supreme Court found an implied grant of immunity with respect to official conduct. Thus, the mere absence of an express grant of immunity to the President in the Constitution does not foreclose the possibility that some form of immunity from the criminal process exists. What is yet unknown--and what this Article addresses--is the type and scope of any such immunity or protection.
Although the President may be "on duty" twenty-four hours a day, he or she does not engage in official acts twenty-four hours a day. (37) As part of daily living, some conduct is inevitably going to be personal and unrelated to the duties of the office. (38) For example, when the President plays golf with siblings, clears cedar bush on private property, or goes horseback riding with long-time friends, he or she is not acting in an official capacity. (39) Furthermore, no one can credibly argue that murdering a political rival or assaulting a media critic would constitute an official duty. (40) Likewise, if the President were to lie to federal prosecutors to protect a family member or political ally, or take other similar actions to obstruct a legitimate federal investigation, such conduct would, and should, be characterized as unofficial. (41) While effective governance may depend on the courts' recognition of absolute immunity for official government actions, the same need does not exist with respect to unofficial conduct.
In the Supreme Court case of Clinton v. Jones involving personal conduct by then Arkansas Governor Bill Clinton, the Court held that a sitting President can be subjected to a civil proceeding in federal court and to civil liability for unofficial actions, such as those taken before assuming office. (42) In part, the decision in Jones depended on the fact that the conduct at issue was committed before President Clinton took office; for this reason, the Court classified the conduct as "unofficial acts." (43) It is unclear whether the Court intended to signal that all conduct prior to taking office were "unofficial acts," while all conduct in office were "official acts." (44) Did the Court leave open the possibility that certain conduct, by its...