[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)
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. …