Imagine the following hypothetical: a U.S. president, while
in office, sneaks out of the White House in a tunnel, walks a few blocks
further, and shoots a passerby in the head. The president returns to the White
House as if the incident had not occurred. The only hint of the murder lies in
the pardon that he gives himself for any crimes committed while in office. Would
such a president be on solid legal grounds?
In 1998, Ken Starr, the independent counsel investigating
President Clinton, assigned Ronald Totunda, a prominent lawyer who taught
constitutional law, to write a memo on whether a sitting president can be
indicted. “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.”[1]
As the president is the chief law-enforcement officer of the U.S. Government, committing
any federal crime would be contrary
to the president’s duties. As for state crimes, they are not part of the duties
and thus are fair game too. By implication, a president could not use the
office’s pardon power to get around being indicted or even arrested outright. “In
this country, no one, even President Clinton, is above the law,” Rotunda states
in his memo.[2]
More than two decades earlier, President Nixon had stated
that if the president does something, it is not illegal. Nevertheless, Leon
Jaworski, the Watergate special council, had a memo (later being a court brief)
arguing that he could indict the president while he was in office.[3]
Yet in the end, he, like Ken Starr, “let congressional impeachment proceedings
play out and did not try to indict the presidents while they remained in
office.”[4]
In an interview, Starr said “that he had concluded the more prudent and
appropriate course was simply referring the matter to Congress for potential
impeachment.”[5] I
disagree.
In particular, the assumption of mutual exclusivity is
erroneous, for Starr (and Jaworski) could have pursued both fronts—an indictment and congressional proceedings. The latter
fall short in terms of criminal law, for congressional action at best is
limited to impeachment and removal from office. These fall short from
prosecution of crimes. For a president who murders a stranger to merely be
removed from office is not to enforce the law; enforcement would mean that the
president would face a prison term rather than a term in office. As a president
in prison could not perform the duties of the office, resignation or removal
from office would come into play. Perhaps the incapacitation-basis in the 22nd
Amendment would kick in too, for a president in prison would be incapacitated from the standpoint of being able to fulfill the duties of the office, which include attending governmental meetings abroad. At the very least, such a president would go to
prison following the term in office, although delaying justice is generally not
a good route. For example, a president could resign a few months before the end
of the term with an “understanding” that the vice president would extend a
pardon. In effect, the president would be above the law.
[1]
Charlie Savage, “Can
the President Be Indicted? A Long-Hidden Legal Memo Says Yes,” The New York Times, July 22, 2017.
[2]
Ibid.
[3]
Ibid.
[4]
Ibid.
[5]
Ibid.
