Impeachment or Indictment?

This was the question addressed by a Senate subcommittee about two decades ago (on September 9, 1998, to be precise). See Impeachment or Indictment: Is a Sitting President Subject to Compulsory Criminal Process?,  Hearing Before the Subcomm. on the Constitution, Federalism, and Property Rights of the Senate. Comm. on the Judiciary, 105thCong., 2d Sess. (1998) (hereinafter the “1998 Hearing”). Specifically, with the independent counsel report on misconduct by President Clinton about to be submitted to Congress (it came two days later), the subcommittee asked whether it was constitutionally permissible to pursue criminal charges against a sitting president, or whether such charges had to be deferred until after impeachment proceedings resulted in the president’s removal (or the president otherwise left office).

At the outset, the subcommittee chair, Senator John Ashcroft, posited two distinct questions. The first was whether “as a constitutional matter, can the President be indicted?” 1998 Hearing at 3. This was a “close and difficult” question, one about which legal scholars had “sharply different views.” Id. While Ashcroft leaned toward an affirmative answer to the question, he acknowledged substantial uncertainty on the point and stressed that it was only a “preliminary view” on which he remained “open to persuasion.” Id. at 1.

The second question was “even assuming a sitting President can be indicted, whether a sitting President should be indicted as long as impeachment remains an option.” 1998 Hearing at 4 (emphasis added). This question, Ashcroft explained, was one “of prudence, rather than of constitutional law,” and a matter “of judgment, not of law or whether or not there is authority.” Id.

In contrast to the uncertainty surrounding the first question, Ashcroft argued that the answer to the second was “crystal clear”: “As long as impeachment remains a viable option, impeachment should be the preferred course.” 1998 Hearing at 4. He noted that “[t]he act of disciplining a popularly-elected President is such an awesome task that it ought to be carried out by the most popularly-responsive mechanism possible.” Id. He cautioned, however, that “just as prudence dictates that a prosecutor should defer to Congress when impeachment is an option, prudence also demands that Congress not shrink from its responsibilities.” Id.

Interestingly, despite the intensely partisan context of the hearing, there was a great deal of agreement between Senator Ashcroft and his two Democratic colleagues on these points. Senator Robert Torricelli noted that “offenses by a President of the United States are to the body politic in its entirety, and therefore need to be judged not as narrow abuses against the criminal law.” 1998 Hearing at 6. The framers entrusted the Senate alone to sit in judgment of such offenses, and it was the Senate’s obligation “to actually live up to those responsibilities.” Id. at 5. Torricelli concluded that impeachment was a “condition precedent” to any criminal action against a president; “any indictment would have to follow impeachment and an action by the U.S. Senate to remove a person from the Presidency.” Id. at 6.

Senator Russell Feingold, like Ashcroft, expressed substantial uncertainty on the question whether a sitting president could constitutionally be indicted. While Feingold was uncomfortable with the idea of a president being “above the law,” even temporarily, “a strong argument can be made that the interest in protecting the proper functioning of the Executive Branch outweighs the interest in allowing indictment.” 1998 Hearing at 22. Regardless, Feingold agreed entirely with Ashcroft on the second question: “I think we can all agree . . . that even if indictment prior to impeachment is constitutionally permissible, impeachment first is by far the more prudent approach.” Id. at 21.

Torricelli suggested that the hearing might be important “in an unforeseen administration in undefined events at another time,” 1998 Hearing at 5, and I think it provides a good starting point for discussing the issues that consume much of official Washington in 2019. Legal experts are once again debating whether the Constitution permits the indictment of a sitting president, an issue that remains as open and unsettled today as it was in 1998.

Truth be told, however, no one is really interested in this abstract constitutional question. What people actually want to know is whether indictment is a prudent and practical alternative to impeachment. More specifically, they want to know if it is realistic to believe that President Trump could be indicted and prosecuted in such a way as to end his presidency. The answer to these questions is even more “crystal clear” today than it was in 1998. The answer is no.

As in 1998, considerations of constitutional legitimacy strongly militate in favor of impeachment rather than indictment. Even more clearly, though, indictment is simply not a viable option at all. Brett Kavanaugh wrote in 1998 that indictment of a sitting president would be “virtually untenable as a matter of practice and unwise as a matter of policy.” Brett Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2159 (1998). Developments since then (Kavanaugh’s elevation to the Supreme Court being one, but far from the most important) make indictment of a president virtually impossible and all but guarantee that a hypothetical indictment of the current president would not lead to his removal.

Indeed, the effect (perhaps intended) of arguing the president can be indicted is to distract from the constitutional remedy of impeachment, thereby making it more likely that Congress will shrink from its constitutional responsibilities.

I will elaborate on these points in future posts.