"From Pillar to Post": The Prosecution of American Presidents

By Turley, Jonathan | American Criminal Law Review, Summer 2000 | Go to article overview

"From Pillar to Post": The Prosecution of American Presidents


Turley, Jonathan, American Criminal Law Review


[W]ould the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?(1)

I. INTRODUCTION

The image of a President "band[led] from pillar to post" by the courts has tremendous resonance for anyone concerned about the doctrine of separation of powers.(2) Thomas Jefferson's articulation of this concern in his letter to George Hay on June 20, 1807 reflects the inherent tension between the model of an accountable Chief Executive and the necessity of an independent Executive Branch.(3) It is a question that begs an answer with every scandal involving allegations of criminal acts by a President in office. During the Clinton crisis, the susceptibility of a sitting President to indictment and prosecution was only touched upon in the debates. The primary thrust of the constitutional debate focused on the meaning of "high crimes and misdemeanors," which was the subject of an unprecedented hearing of nineteen expert witnesses in the House of Representatives.(4) A prior hearing, however, was held in the Senate that specifically addressed the controversial question of the prosecution of a sitting American President.(5) This Article addresses the latter question raised by the Senate.(6)

As one of the academics testifying in both hearings,(7) I was struck by the common historical and theoretical issues in the debates over the impeachment and indictment of Presidents. The latter issue of indictment, however, was less immediate for the academic debate during the Clinton crisis, which largely turned on the scope of impeachable offenses. This left the Senate hearing as the only comprehensive discussion of this question despite the fact that it has been raised in prior administrations(8) and President Clinton continues to face the possibility of indictment.(9) The question of the indictment of an American President only heightens the concerns raised over the impeachment standards. Both the indictment and impeachment of a Chief Executive are seen as threats to a tripartite system designed for balanced authority between the branches. Academics who argued for a higher standard for impeachment often voiced equally strong objections to the concept of the prosecution of a sitting President.(10) This Article addresses the arguments advanced in the Senate hearing and in academic writings in opposition to the concept of the prosecution of a sitting President.(11) As stated in the Senate hearing, I believe that the indictment of a President is constitutionally permissible and, in some circumstances, essential to the preservation of core constitutional principles. The thrust of this Article, however, is to respond to the textual, historical, and functional arguments against such indictment authority. As will be shown, past textual and historical arguments in favor of Presidential immunity can be set aside upon closer scrutiny, thereby allowing for a more focused debate over the functionalist implications of Presidential prosecutions. The functionalist arguments against immunity have been made with obvious hypotheticals of murderous Presidents and compromised legislators.(12) It is the countervailing hypotheticals used by advocates of immunity, however, that have sustained much of this debate: the fear of hounded Presidents or abusive prosecutors and judges. This Article will explore the legal and practical basis of these hypotheticals as part of the critique of the functionalist rationale for immunity.

The question of indicting a sitting President is often raised as part of a scenario in which impeachment efforts fail and an indictment is pursued as an alternative (and less credible) form of punishment.(13) This creates the false impression that impeachment and indictment are variations on a common theme. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

"From Pillar to Post": The Prosecution of American Presidents
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.