Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?

Since the subject of my last post turns out to be somewhat hypothetical, let’s turn to another hypothetical that is often invoked to show that it must be possible to indict (and prosecute) a sitting president for some crimes. Here is how Professor Larry Tribe put it recently:

Nearly everyone concedes [a prohibition on indicting the president] would have to permit exceptions. The familiar hypothetical of a president who shoots and kills someone in plain view clinches the point. Surely, there must be an exception for that kind of a case: Having to wait until the House of Representatives impeaches the alleged murderer and the Senate removes him from office before prosecuting and sentencing him would be crazy.

CNN Anchor Erin Burnett also raised the hypothetical of a murderous president during a January 3, 2019 debate between Norm Eisen (representing the “pro-indictment” or “anti-immunity” position) and David Rivkin (representing the “pro-immunity” position):

BURNETT: Let me interject. The president once famously said I could shoot somebody on Fifth Avenue, we’re not even talking about Russian conspiracy. I could shoot someone on Fifth Avenue. You’re saying if he did that, if he murdered somebody he still above the law, still can’t indict him?

RIVKIN: No, he’s not above the law. He can’t be indicted for murder. There’s only one Constitution proper way to deal with an aberrant president. And that’s what the framers intended, beside from elections. And between elections, you got the impeachment process which features political accountability.

* * *
BURNETT: Norm, you heard David. Even in murder, he would put it to the political process of impeachment. Not indict somebody for murder?

EISEN: The murder example explains why this is so wrong, Erin.

You can watch the video here.

This is not a new hypothetical. In fact, it was raised as early as September 26, 1789, when Senator William Maclay entered into an argument with Vice-President John Adams, Senator Oliver Ellsworth and others who believed the president could only be impeached, not indicted. Maclay summarized the discussion:

I put the case: “Suppose the President committed murder in the street. Impeach him? But you can only remove him from office on impeachment. Why, when he is no longer President you can indict him. But in the meantime he runs away. But I will put up another case. Suppose he continues his murders daily, and neither House is willing to impeach him?” Oh, the people would arise and restrain him. “Very well, you will allow the mob to do what legal justice must abstain from.” Mr. Adams said I was arguing from cases nearly impossible. There had been some hundreds of crowned heads within these two centuries in Europe, and there was no instance of any of them having committed murder. Very true, in the retail way, Charles IX of France excepted. They generally do these things on a great scale. I am, however, certainly within the bounds of possibility, though it may be improbable.

William Maclay, Journal of William Maclay 166-67 (E. Maclay ed. 1890), quoted in 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., at 41-42 (1998) (hereinafter the “1998 Hearing”) (testimony of Eric M. Freedman).

You can imagine this passage being read by Erin Burnett, complete with furrowed brow and skeptical expression. (What can I say? I’m easily amused.)  Continue reading “Impeachment or Indictment: What If the President Actually Shoots Someone on Fifth Avenue?”