This weekend, the New York Times published a Clinton-era memo that suggested that a President could be indicted while on office, a report that is renewing an old constitutional debate about presidential immunity.
According to the memo, written by Kenneth Starr during the Clinton impeachment investigation, a law professor assigned by Starr to research the question concluded President Bill Clinton could face criminal charges while in office.
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr memo concluded. “In this country, no one, even President Clinton, is above the law.” That conclusion was never pursued by Starr and it conflicted with at least three other past legal memos from the Executive Branch that stated the President is immune from criminal prosecution while holding office.
The issue of presidential immunity received a lot of attention during the Watergate-era investigations into President Richard Nixon during his second term.
In two separate opinions from that era, the Attorney General’s office spelled out the argument that the President wouldn’t face criminal charges while in office, but he could face charges after leaving office. The President would need to be removed by Congress through the impeachment process or resign to lose that short-term immunity. And in 2000, Randolph Moss from the Office of Legal Counsel in the Justice Department re-examined those two opinions and still found them to be valid based on “judicial precedents” and the interpretation of Founding-era documents.
In 1973, Assistant Attorney General Robert Dixon explained in the first opinion of the Justice Department’s Office of Legal Counsel how the President’s unique role provided immunity until he left office.
Dixon said a sitting President should be barred by the doctrine of separation of powers from a criminal indictment and trial that would “unduly interfere in a direct or formal sense with the conduct of the Presidency.”
“An impeachment proceeding is the only appropriate way to deal with a President while in office,” Dixon concluded, noting the potential effect on the overall Executive Branch.
The Constitution's Article II, Section 4, spells out that, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Two weeks after Dixon’s memo, a second one followed from Solicitor General Robert Bork about the Vice President Spiro Agnew’s immunity request from criminal charges while in office. Bork offered a textual explanation about why only the President would enjoy such short-term immunity.
“The President’s immunity rests not only upon the matters just discussed but also upon his unique constitutional position and powers,” Bork wrote. “There are substantial reasons, embedded not only in the constitutional framework but in the exigencies of government, for distinguishing in this regard between the President and all lesser officers including the Vice President.”
In 2000, Moss concluded that while no court has ruled on these immunity issues, “the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”
He also cited an opinion from Joseph Story in his Commentaries on the Constitution that the President has incidental powers that need to be performed without obstruction and “the President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office.”
In 1998, Yale scholar Akhil Reed Amar also referenced Story’s remarks in Senate testimony that later appeared in a law-review article. Amar said based on his structural interpretation of the Constitution that “other impeachable officers-Vice Presidents, Cabinet officers, judges, and justices - may be indicted while in office. But the Presidency is constitutionally unique - in the President the entirety of the power of a branch of government is vested.”
But back in the Watergate era, there wasn’t a consensus that President Nixon was immune from prosecution while in office. A third Justice Department memo, prepared in 1974 for Special Prosecutor Leon Jaworski as part of the grand jury process, argued that a President’s guilt in a criminal matter shouldn’t be left to a “political process” such as impeachment. “There is nothing in the language or legislative history of the Constitution that bars indictment of a sitting President. But there are a number of “policy” factors that weigh heavily against it.”
That memo cites a quote from an 1882 Supreme Court decision, United States v. Lee. “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it,” said Justice Samuel F. Miller.
Scott Bomboy is editor in chief of the National Constitution Center.
