At the end of Act I of the box-office smash Hamilton: An American Musical, the play’s namesake beseeches his murderer-to-be to co-author a “series of essays, anonymously published” defending the proposed U.S. Constitution. Alexander Hamilton’s entreaty to Aaron Burr probably never occurred, but Hamilton – with assistance from fellow Founding Fathers James Madison and John Jay – would publish incognito the 85 essays known today as the Federalist Papers.
Those venerated treatises are regularly cited in U.S. Supreme Court decisions and, in the words of historian John Fiske, constitute the “most authoritative commentary upon the Constitution.”
Federalist Papers Nos. 69 and 77 speak to the limited immunity of the U.S. President.
THE FEDERALIST PAPERS: IMPEACHMENT & SUBSEQUENT PROSECUTION
Federalist No. 69, authored solely by Hamilton, contrasts the role of the U.S. President with the King of Great Britain. To assuage the constituency’s fear of corrupting power in a monarchy “amenable” to “no constitutional tribunal” and possessing the “power to grant reprieves and pardons,” the Constitution incorporated finite terms and a potent rectification: impeachment. In Hamilton’s words, “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
Impeachment of the Executive would involve the other two branches of government. Impeachment charges would be the sole province of a majority vote in the House, with judgment rendered by the Senate in a proceeding presided over by the Chief Justice of the Supreme Court. Conviction on charges of impeachment required a two-thirds vote in the Senate.
Federalist No. 77, also authored solely by Hamilton, explains the overriding checks and balances of impeachment. Specifically, the President is “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.”
SCOTUS ON PRESIDENTIAL IMMUNITY
The Supreme Court of the United States (SCOTUS) has yet to address whether a sitting President may be subjected to criminal indictment or prosecution. Two late 20th century cases danced around the perimeter.
In United States v. Richard M. Nixon (1974) a unanimous Burger Court painstakingly carved a narrow exception to executive privilege and required the sitting President respond to a court-authorized subpoena duces tecum for production of tapes in connection with the criminal trial of third parties (not including the President).
In William Jefferson Clinton v. Paula Corbin Jones (1997), President Clinton sought temporary immunity from a private lawsuit. While sensitive to the President’s unique constitutional role, the unanimous Rehnquist Court held “the doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office.” Notably, the Court left open the possibility of Presidential immunity from any state court action based on “federalism and comity concerns.”
PUBLISHED LEGAL MEMORANDA OF THE U.S. DEPARTMENT OF JUSTICE
In 1973 and 2000, the U.S. Department of Justice (DOJ) opined as to the constitutionality of indictment or prosecution of a sitting president. The well-reasoned opinions, the first written during a Republican Party presidency and the second during a Democratic Party presidency, unequivocally concluded the president was immune from criminal indictment. See https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf. Summarizing, “indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.”
THE SPECIAL COUNSEL – ROBERT S. MUELLER III
On May 17, 2017, pursuant to DOJ Order No. 3915-2017, Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller III as a Special Counsel housed in the DOJ, charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
Incongruously, Mueller’s role in the Executive Branch derives from departmental regulations rather than statutory authority. Prior laws authorizing the appointment of “Independent Counsels” such as Ken Starr expired back in 1999. Mueller serves merely as a temporary, unconfirmed, limited-purpose U.S. Attorney with the same authority (and no more) than the 93 U.S. Attorneys scattered around the country. See 28 CFR 600.6.
Confoundingly, U.S. Attorneys (including Special Counsel Mueller) have no felony indictment authority. The revered 5th Amendment reserves that power to a grand jury. Mueller is restricted from even seeking an indictment of a sitting President due to the existing DOJ opinions cited above (the most recent of which was issued by the Clinton Justice Department). As a Special Counsel (rather than a Ken Starrish Independent Counsel), Mueller “shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice” (28 CFR 600.7(a)).
This column’s title notwithstanding, Mueller has never publicly questioned the DOJ’s restrictions on indicting a sitting president. The notion that Mueller might even seek an indictment of the President originates with the media, unnamed sources, and wishful thinkers. Mueller has professionally remained mum on the subject.
SUMMARY & OPINION
Hamilton – a precise and astute writer with a comprehensive understanding of the Constitution – believed the President was and is “liable to prosecution and punishment in the ordinary course of law” only after removal from office. The DOJ – based on opinions issued under Republican and Democratic presidencies – agrees. Gosh, even civil liberties champion and famed constitutional scholar Professor Alan Dershowitz (who voted for Hillary Clinton) agrees.
Siding with Hamilton, the DOJ and Dershowitz, I believe the U.S. President is immune from indictment and prosecution prior to removal from office. Reasonable minds, however, may differ. As we engage in scholarly debate (sans the rhetoric), it would be wise to remember the answer to the question is the same whether the last name of the sitting president happens to be Clinton, Bush, Obama, Trump, or Warren. And bad facts make bad law.
» BEN WILLIAMS is a Mississippi attorney and columnist. Email Ben at MBWJ@aol.com. Ford Williams, the artist, is a sophomore at the Savannah College of Art & Design (SCAD).
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