Academic journal article Presidential Studies Quarterly

The "Public" versus the "Private" President: Striking a Balance between Presidential Responsibilities and Immunities

Academic journal article Presidential Studies Quarterly

The "Public" versus the "Private" President: Striking a Balance between Presidential Responsibilities and Immunities

Article excerpt

Recent and ongoing political events have raised, once again, the issue of whether the president is or should be "above the law." This has been an enduring concern of the American polity, most recently debated in the context of President Nixon's actions during the Watergate crisis. Assessing the legitimacy of a president's actions, and his accountability for them, however, is not furthered by catchy slogans or mere rhetoric that obscures rather than illuminates important constitutional governance issues. To contend that the president cannot be above the law, without regard to context, the nature of the political system, the president's role within it, and other circumstances, reveals a serious case of constitutional myopia. It is a fateful misreading of the purposes and benefits of the doctrine of separation of powers.

The controversial issue we address here--whether the president sometimes must be above the law has been complicated by emerging questions of how to deal with his so-called unofficial or private behavior. "Even presidents," Bill Clinton told the nation last summer, "have private lives." But a president's private life does not exist in a vacuum outside of his public life, and the law must reflect this reality. The Supreme Court's efforts to establish a rigid demarcation between a president's public and private behavior have thus been misguided. Given the current realities of the independent counsel statute and heightened aggressive media coverage of the president, we must assume that even a president's private behavior, and reactions to it, will quickly escalate into matters of political, legal, and constitutional significance. This article is an effort to conceptualize the presidency wholistically and to explore how the law and the Constitution should deal with private presidential actions that appear to lie outside the line of acceptable behavior. While this article flows from current controversy concerning the Clinton administration, its analysis and recommendations are not dependent on those particular events. They are used here to illustrate a problem of much broader import and applicability.(1)

The nub of the dilemma is the problematic private-public distinction formulated by the Supreme Court. The legal precedents established in Nixon v. Fitzgerald(2) and, more recently, in Clinton v. Jones(3) have contributed significantly to the current legal and political disarray. The former case concerned more squarely the category of "public" or "official" misbehavior: a retaliatory discharge by the president against an executive branch whistle-blower. The latter lies at the opposite end of the public-private continuum: an alleged incident of sexual harassment by the president that occurred prior to his term in office.(4) Whether even the latter case is, for constitutional purposes, purely a private matter is complicated by assertions that, while president, Clinton committed perjury in denying the allegations in a trial deposition, committed perjury again when testifying about related matters before a grand jury, and attempted to obstruct justice and suborn perjury to cover up his behavior.

Thus, neither case helps to resolve the dilemma of how to draw effective public-private boundaries. Where does one place the myriad of cases that sit somewhere in between these two ends of the spectrum? The independent counsel's current investigation of the Monica Lewinsky incident illustrates why the line between a president's public and private actions is nearly impossible to draw in theory or discern in practice. A sitting president is expected to publicly defend his nonpresidential (or prepresidential) actions (or inactions) but can only do so in a presidential context. Which controls the definition--the original acts (either before he became president or as president in his private capacity) or the president's response to them and the constitutional implications thereof? Viewed in this way, no act of a president can be considered as purely private. …

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