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.)
The Burr Case
There is also a real-life version of the murder hypothetical which is of possible relevance to this debate. After his duel with Alexander Hamilton, Vice-President Aaron Burr was indicted for murder in New Jersey. Although the case was ultimately dropped without Burr having to stand trial, the “anti-immunity” camp makes much of the fact that no one at the time apparently argued that he was constitutionally immune. For example, Professor Freedman points to a letter sent by eleven senators to the governor of New Jersey in support of Burr. Although the senators asked that the prosecution be discontinued, they did not claim that Burr was constitutionally immune from criminal process, a fact that Freedman finds quite significant. See Eric M. Freedman, The Law as King and the King as Law: Is a President Immune from Criminal Prosecution before Impeachment?, 20 Hastings Const. L. Q. 7, 23 (1992) (letter requested the governor “in polite terms” to terminate the prosecution but did not suggest that Burr had constitutional immunity).
I have a few problems with this analysis. First, the senators were trying to get the governor to drop the case entirely, not just delay it for the remainder of Burr’s term, which was to expire within a few months. Second, the fact that the senators did not claim immunity for Burr may have simply been a tactical decision, as even Freedman acknowledges. See id. (perhaps “the senators thought that it would be more politically effective to appeal to the Governor’s discretion rather than to assert an aggressive legal posture.”) Given that the senators had no means of forcing the governor to comply with their request, this was probably a wise decision.
Third, while the letter makes no explicit claim of immunity, it does point out a prosecution would interfere with Burr’s performance of his official duties, which is a key element of an immunity argument. To be sure, the focus is not on vice-presidential duties generally, but rather on Burr’s duties as president of the Senate specifically. This is understandable since (1) as senators, the authors would naturally focus on the interests of their institution, not the executive branch; (2) Burr’s most important duty at the time was to preside over the impeachment trial of Supreme Court Justice Samuel Chase; and (3) let’s face it, a vice-president has few other significant duties.
Fourth, while the letter is generally phrased as a plea for comity, there are hints the senators are prepared to adopt a “more aggressive legal posture” if New Jersey attempts to interfere directly with Burr’s performance of his official duties. Thus, the letter complains about efforts “to demand the person of the President of the Senate” and states “we [cannot] avoid intimating the unpleasant embarrassment of the Senate if the attempt meditated of demanding his person whilst [engaged in discharge of official duties] should be prosecuted.” Charles Biddle, Autobiography of Charles Biddle 306-07 (Philadelphia 1883) (reprinting letter). This seems to me to have at least an undertone of “molon labe.”
At most, one can infer from the Burr letter that there was no consensus among the senators that the vice-president was constitutionally entitled to immunity. This, however, is hardly surprising because (as the Maclay colloquy shows) the founding generation was sharply divided on whether the president was entitled to such immunity. As Freedman acknowledges, many founders (including Adams, Ellsworth and, ironically, Hamilton) believed that impeachment must precede indictment, at least for the president, while many others (like Maclay) disagreed. See 20 Hastings Const. L. Q. at 15-22. The fact that the senators did not want to advance a controversial claim of immunity for the vice-president is not a shock, particularly when one considers the less than optimal fact pattern involved.
To the extent the Burr episode tells us anything, it would seem to (slightly) favor the pro-immunity case by suggesting that a state prosecution, even for a serious crime like murder, should not be allowed to interfere even with the relatively trivial duties of a vice-president. To suggest that it undermines the constitutional argument for presidential immunity, based on the unique powers and responsibilities of that office, seems like a stretch.
Most discussions of presidential criminal immunity focus on federal prosecution. As the Burr case illustrates, however, many serious crimes, including murder, are primarily or solely state law offenses. This adds an additional level of complexity to the analysis because even many in the “pro-indictment” camp acknowledge that there must be limitations on the ability of stateauthorities to indict or prosecute a sitting president.
The classic example of why states should not be permitted to indict a president (call it the pro-immunity version of the murder hypothetical) is provided by Professors Amar and Kalt: “Imagine that in April 1861, after the Civil War began but before his state had seceded, a local prosecutor in Virginia decided to prosecute President Lincoln. Would it make sense to say that Lincoln was subject to ‘arrest, imprisonment, or detention’ at that crucial moment?” Akhil Reed Amar & Brian C. Kalt, The Presidential Privilege Against Prosecution, 2 Nexus 11, 14 (1997). Let Erin Burnett chew on that one.
Personally, I have greater concern about more realistic and modern hypotheticals. Imagine, for example, a red state pursuing President Obama or a blue state President George W. Bush for issues such as drug use or drunk driving. See Ken Gormley, Impeachment and the Independent Counsel: A Dysfunctional Union, 51 Stanford L. Rev. 309, 321 (1999) (suggesting similar hypotheticals for earlier presidents).
Concerns that state authority to prosecute a sitting president would allow states to improperly interfere in the operation of the federal government have prompted various responses from the anti-immunity camp. For example, the staff of Watergate special prosecutor Leon Jaworkski, while concluding that the president enjoyed no absolute immunity from the process of a federal grand jury, nonetheless opined that there was “no question” that state indictment would be constitutionally barred. See 1998 Hearing at 176 (footnote *). [Note: Jaworksi, for some combination of constitutional and pragmatic reasons, ultimately rejected his staff’s recommendation that the grand jury proceed against President Nixon by either indictment or presentment.]
In a similar internal memorandum for independent counsel Kenneth Starr a quarter-century later, Ronald Rotunda opined that a sitting president under some circumstances was subject to federal indictment and prosecution, but distinguished this question from “a state prosecution [which] may violate the Supremacy Clause.” [Note: like Jaworski, Starr ultimately chose not to proceed criminally against the president but to send a report to the House of Representatives instead.]
Professor Michael Paulsen offers a slightly different approach. He acknowledges that state criminal proceedings against a sitting president are constitutionally problematic because the Supremacy Clause prohibits states from impairing the performance of federal functions. However, he maintains:
Principles of federal supremacy might properly bar a state from taking direct physical action to restrain or detain a President—like arrest or imprisonment—without the acquiescence of the federal government. If Congress does not impeach and remove a President who has committed murder, rape, robbery, fraud, or some other serious state-law crime; and if the President interposes the executive power against such state prosecution, it may well be that the President could render state proceedings ineffectual. A state’s criminal law as a practical matter probably cannot be enforced against a sitting President without the cooperation of Congress through the impeachment power.
But that would not keep a state grand jury from indicting him. The President could neither countermand nor effectively nullify such state action, which would at least stand as a statement of the state’s interest in enforcing its criminal law.
Whatever the merits of this position as a matter of constitutional law (a question we will leave aside for the moment), it is not very helpful from a pragmatic standpoint. If a president who commits murder cannot be arrested or imprisoned while he is still in office, allowing states to indict (or even to prosecute and convict) him does not do much to answer the problem posed by the murder hypothetical in the first place. It also fails to provide a basis for limiting the state’s power to “serious crimes,” however they may be defined.
Indeed, if states are permitted to indict the president but no more, we might have the worst of all worlds. State prosecutors hostile to a particular president would have an incentive to bring indictments, but they would not be required to back up their allegations with actual proof. The president might not even have the opportunity to have the indictment dismissed since, in Paulsen’s conception, it would be little more than a symbolic affirmation of the state’s interest in enforcing its criminal law. Perhaps, like naming the president as an unindicted co-conspirator, this approach would do little constitutional harm, but it would not provide much benefit either.
Prosecuting a President Would be Murder
At this point we can say that Professor Tribe’s claim that “nearly everyone” agrees that a sitting president can be prosecuted for murder is a tad overstated. As Maclay’s journal suggests, his murder hypothetical in 1789 did not convince anyone, including Adams and Ellsworth (the latter having been a delegate to the Philadelphia Convention and later a Supreme Court justice). Moreover, legal experts who believe the president is constitutionally immune from prosecution (such as Amar and Kalt, Joseph Isenbergh, Scott Howe, Susan Low Bloch and Jay Bybee) have not acknowledged a “murder exception.” As far as I know, the only people who think the president can be prosecuted for murder are those who think he can be prosecuted for anything.
For that matter, Tribe himself did not mention the “murder exception” when he testified in 1998 that “[b]ecause prosecution can obviously await the conclusion of the impeachment process . . ., such prosecution ought to await that conclusion.” 1998 Hearing at 13. Perhaps Tribe was only thinking of less serious criminal offenses, but his testimony was unequivocal that the Constitution “does not permit a sitting President to be incarcerated or physically restrained in any way (even in a special form of what might be termed ‘White House arrest’) in order to enforce an otherwise valid subpoena, contempt citation, or judgment of conviction.” Id. at 14.
Furthermore, the murder hypothetical is rather less powerful today than it was in 1789, when Maclay could rightfully point out that Congress might be in recess for 6-9 months (with only the president able to convene it), thus making it impossible to commence impeachment proceedings during that time. Today there is no reason that impeachment proceedings could not be as least as speedy as a criminal case. The only caveat would be if someone were empowered to place the president under pretrial arrest, something that no one seems to seriously suggest.
In fact, even the strongest opponents of presidential immunity do not argue that criminal prosecution would be an effective method of holding a sitting president accountable for a serious crime such as murder. Thus, Freedman explains that the “most appropriate case for criminal prosecution, instead of impeachment, is likely to be one for which the crime is relatively less serious and so jail is not a likely sentence in any event.” 1998 Hearing at 24; accord 20 Hastings Const. L. Q. at 51-52; see also Jonathan Turley, From Pillar to Post: The Prosecution of American Presidents, 37 Am. Crim. L. Rev. 1049, 1087-88 (2000) (“the most likely criminal charge against a sitting President would be a lesser offense in one of the lower categories rather than high-category crimes like murder, drug-dealing, and the like”). Relatively minor crimes are where it is most conceivable that a president (1) would not be impeached or removed and (2) might be willing to reach a plea agreement or at least not launch a scorched earth defense of the criminal charges.
Now let’s play out what would happen if a president actually shot someone on Fifth Avenue. Assuming the president does not resign, one would expect that he would be impeached, convicted and removed from office by Congress in a speedy fashion.
It should be noted here that there is no serious question that our murdering president could be impeached for his crime, notwithstanding the argument made by many legal experts during the Clinton impeachment that a president could not be impeached for purely “personal” conduct (we will assume here that the murder was unrelated to the president’s official duties). These experts generally acknowledged, however, that there would have to be an exception for an offense like murder. See Jonathan Turley, Reflections on Murder, Misdemeanors, and Madison, 28 Hofstra L. Rev. 439, 442-49 (1999) (noting that these experts, including Tribe, agreed on an exception for “heinous” acts but could not explain the basis for the exception or how to determine which conduct was sufficiently heinous to qualify); see also Michael Paulsen, Could Aaron Burr Have Been Impeached for the Duel? (July 11, 2018) (discussing Tribe’s curious views on whether Burr could have been impeached for killing Hamilton). Maybe this is the “murder exception” Tribe was thinking of.
But what happens if, despite the president’s clear guilt, Congress is unwilling or unable to impeach and convict him? Wouldn’t criminal prosecution serve as a backstop to ensure he is held accountable and punished for this terrible crime?
The answer is probably not. For one thing, if our political system has become so dysfunctional and debased that a murderous president cannot be removed from office, it is unlikely that the legal system will be free from similar taint. Cf. Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies 13 (2012) (“Any person politically formidable enough to become president and avoid impeachment would have a good chance of finding at least one sympathetic juror.”).
And that assumes the case would even get to trial. If a state attempted to prosecute the president, he would undoubtedly use his ample legal resources to challenge the constitutionality of this action in both state and federal court. See 20 Hastings Const. L. Q. at 65-66 (arguing that the president could use both the federal removal statute and a federal injunctive action to collaterally attack state criminal proceedings). This would give rise to a host of novel procedural and substantive questions (including, of course, whether the president is entitled to constitutional immunity as long as he remains in office) that would have to be resolved before the case could go to trial. Almost certainly, this would require the U.S. Supreme Court to weigh in (at least once) before a trial could take place.
If the courts did clear the way for a state trial to be held, this still leaves the question of how the state gains control of the president’s person for purposes of trial, sentencing, and punishment. Although legal scholars have imagined scenarios in which a president might voluntarily submit to a brief period of incarceration (during which he might turn over power temporarily to the vice-president under the 25th amendment or, even more fancifully, continue to perform his duties from prison), these are plainly inapplicable here. Compare 20 Hastings Const. L. Q. at 53-57. We can expect the murderous president to fight to the death.
As unlikely as a successful state prosecution may seem, a federal prosecution would be an even longer shot. The president can, of course, raise his immunity defense in federal court, and he can also pardon (or attempt to pardon) himself before, during or after trial.
It is unlikely, however, the president would ever need to take these steps. One thing everyone actually agrees on is that the president controls the mechanism of federal prosecution. Now that the independent counsel statute has lapsed, there is no legal impediment to the president firing any federal prosecutor who might try to indict him. In the case of a special counsel like Robert Mueller, the president might need to do this indirectly, by ordering the attorney general to fire the special counsel (or, if need be, firing and replacing the attorney general to ensure the order is carried out). There can be little doubt our hypothetical president, having just committed murder, would be willing to carry out a (hopefully figurative) Saturday Night Massacre to protect himself.
In short, the murder hypothetical is not the slam dunk argument against presidential immunity that Professor Tribe and others imagine it to be. Whether a sitting president can ever be indicted remains uncertain, but this much is not. Impeachment is the most reliable, effective and legitimate means of addressing presidential wrongdoing, whether it involves murder or anything else.
It is also the most expeditious. The Clinton impeachment, trial and acquittal took less than two months (or five months if you start from the release of the Starr report to Congress). This is far less than any conceivable criminal proceeding against the president would take. The main obstacle to a speedy impeachment process is getting started, and imagining that a prosecutor in shining armor will save Congress from its constitutional duty only makes that harder.
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