Philip Allen Lacovara
December 9 2017 2:30 AM
As Special Counsel Robert Mueller racks up indictments and guilty pleas, and Donald Trump continues to dig himself further into a potential obstruction-of-justice charge, a question lingering since Mueller’s appointment comes front and centre – can a sitting US president be indicted for a federal crime?
I believe the answer is yes. When I was counsel to the Watergate special prosecutors, one issue we had to address during the investigation of Richard Nixon was whether the president was subject to indictment for his role in the Watergate cover-up. As we later informed the Supreme Court in briefing the ‘Nixon tapes’ case, we concluded a president may be indicted while in office. The Justice Department’s Office of Legal Counsel has taken a different position, first under Nixon and later under the administration of Bill Clinton.
The principal argument in favour of presidential immunity is that the president, as chief executive, is the officer ultimately responsible to “take care that the laws be faithfully executed”. Therefore, for the government to pursue a criminal indictment would be like the president prosecuting himself.
The argument is misguided. In England, it used to be said “the king can do no wrong”. Indeed, when the colonies declared independence, English prosecutions were in the name of the king. But the US founders rejected the tradition of royal supremacy. In writing the constitution, they created a limited immunity for members of Congress protecting them against – but only against – prosecution for “speeches or debates” during congressional proceedings. By contrast, the constitution is silent on any comparable immunity for the president.
In fact, in the Nixon tapes case, the Supreme Court rejected essentially the same point that Trump supporters are making. There, Nixon argued that, as chief executive overseeing enforcement of the federal laws, he was not subject to demands by the special prosecutor that the president produce evidence sought by the prosecutor.
The court unanimously upheld the fundamental constitutional principle that no person is above the law.
Another major argument for presidential immunity is that the burden of defending against a criminal charge would distract an incumbent president from performing his important public duties. That argument, too, did not convince the Supreme Court when Bill Clinton claimed immunity from having to defend against the civil sexual harassment lawsuit brought against him by Paula Jones.
The court emphasised that a president acquires no special immunity from being held accountable for personal misconduct and explained that trial courts are capable of managing proceedings in a way that minimises the impact of a trial on presidential duties.
Finally, the constitution does not specify or even imply that no prosecution of a president may occur unless he is impeached and removed from office first. The text simply notes that impeachment does not foreclose later prosecution.
Most significant, the argument proves too much. A single section in Article II of the constitution specifies, without distinction, that the “president, vice president, and all civil officers” may be impeached by the House and may be removed upon conviction by the Senate of treason, bribery, or other high crimes and misdemeanours.
The constitution does not distinguish between treatment of the president on the one hand and vice president and other civil officers on the other. History has demonstrated, however, that hundreds of civil officers, as well as vice president Spiro Agnew, have been prosecuted for federal offences without having been removed from office.
In addition, criminal prosecution and impeachment are fundamentally different. Impeachment by the House and conviction by the Senate represent a political judgment that an official is unfit for office. By contrast, the federal criminal code includes many offences of a non-political nature, and these are pursued by grand juries, conducted by professional prosecutors and ultimately tried before civil courts and juries.
Whether Mueller and a grand jury conclude Trump has violated the federal criminal law against obstruction of justice is a complex matter. There may be reasons of “prosecutorial discretion” not to pursue a criminal charge, even if one is otherwise justified. But the president and his supporters are claiming an immunity from criminal culpability that the constitutional system of justice does not and should not tolerate.
Philip Allen Lacovara is a former US deputy solicitor general in the Justice Department, and served as counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski