Dear Straight Dope:
On the final show for "24" last season, the U.S. attorney general ordered federal agents to take custody of the president. Is this legal? Who has the power to arrest a sitting president should he or she commit a crime? I thought I read somewhere that only a U.S. marshal could arrest the president but I can't find anything on the web. Help.
SDStaff Gfactor replies:
Although your question has an easy answer, it raises an issue that has vexed constitutional law scholars for a long time. First the easy part. There’s no distinction in federal or state statutes between arrestees. For example, 18 U.S.C. §3052 gives FBI agents the power to “serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” Section 3053, which governs U.S. marshals, gives them similar authority to make warrantless arrests. Not all federal agents have the same broad arrest powers, but nothing in the statutes prevents them from arresting government officials. Similarly, state law enforcement officers can arrest those who violate state laws. There’s no real debate about this.
On the other hand, there is controversy about whether the president is subject to indictment (and therefore arrest) no matter who does the arresting. Given all the hot water presidents have been in since the days of Richard Nixon, you’d expect there to be a ready answer to this question by now. But there isn’t.
For example, at a 1998 Senate hearing on the subject chaired by John Ashcroft, professors Freedman and Turley said the president could be criminally indicted and prosecuted (at least under some circumstances); professors Amar and Bloch said he couldn’t. Three former federal prosecutors also testified. Two said the president could be prosecuted; one said he couldn’t.
What we’re talking about here is presidential immunity. The Constitution is silent on this question. It says the president can be impeached, but that raises as many questions as it answers. Can the president be indicted and tried? If so, must the president be impeached first? If convicted of a crime but not impeached, could the president be required to serve a sentence while still in office? If the president is impeached, does the double jeopardy clause prevent subsequent criminal prosecution on the same grounds? If the president can’t be prosecuted while in office, what happens if the statute of limitations runs out before his term expires? If convicted while in office, could the president pardon himself?
The issue isn’t a new one — delegates discussed it (briefly) at the Constitutional Convention, although nothing about presidential immunity made it into the Constitution. Regarding presidential wrongdoing, the Constitution says only the following:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and misdemeanors.
But impeachment only removes the president from office. The Constitution makes clear that impeachment does not, on its own, prevent future prosecution:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
What scholars argue about is whether this language, Constitutional history, or public policy requires impeachment of a president before prosecution. The idea that a sitting president must be impeached before prosecution is called the sequentialist position, advocated by law professor Akhil Reed Amar among others.
Critics of the sequentialist school of thought point out several flaws in its logic. For one thing, few sequentialists argue that the vice president is immune from indictment while in office, and in fact Vice President Spiro Agnew was indicted prior to expiration of his term. In a 2000 survey of other cases of indictment without impeachment, professor Jonathan Turley points out that judges Robert Collins, convicted of bribery, obstruction of justice, among other things, and Harry E. Claiborne, convicted of tax evasion and filing a false financial statement, were incarcerated jurists who continued to receive their salaries in prison. Some accused federal judges have argued the sequentialist position but in every case the courts have ruled against them. Turley observes that “governors, high state officials, federal cabinet officers, and federal judges have been similarly subjected to criminal indictment and trial before removal.”
Critics note that the Constitution explicitly grants limited immunity to representatives and senators under Article I, Section 6:
The Senators and Representatives … shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The fact that no such provision is made for a sitting president, they argue, suggests he’s not immune to prosecution.
The historical record doesn’t clarify matters. For example, Senator William McClay reports in his journal an impromptu conversation during the First Congress between Vice President Adams and Senator Ellsworth in which they were discussing whether federal writs should be issued in the name of the president. In the midst of this discussion, they
Said the President, personally, was not the subject to any process whatever; could have no action whatever brought against him; was above the power of all judges, justices, etc. For what, said they, would you put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government?
At best this establishes that a couple of prominent officeholders held this view, which McClay himself disagreed with. He explains “as they seemed very opinionated, I did not contradict them.” He notes that Adams and Ellsworth “confounded” the executive and judicial branches. He describes their view as “only a part of their old system of giving the President as far as possible every appendage of royalty.” So make that two for, one against.
There was an incident involving Thomas Jefferson, and Justice Story had some things to say about the issue, but none of it really helps.
Professor Turley contends that historical evidence undercuts the sequentialist position. For example, James Madison raised the question of presidential privilege at the Constitutional Convention on September 4, 1787. Professor Turley explains, “Madison’s suggestion of such Presidential privileges reflected the view that they are distinct and not implied in the congressional privilege provision. Nevertheless, no such Presidential immunity was further discussed and one delegate stated that such immunity had been rejected.”
I could go on but for three things:
- There’s not much more historical evidence to talk about.
- What there is is even less satisfying than the Adams-Ellsworth conversation.
- As a famous jurist once noted, the problem with this type of evidence is that there’s something in there for everyone: “the trick is to look over the heads of the crowd and pick out your friends.”
Sequentialists say that even if we accept that the document and its history are ambiguous, policy reasons justify giving the president special treatment. During the trial of Aaron Burr, President Jefferson laid out the argument:
But if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Constitution enjoins his constant agency in the concerns of 6. millions of people. Is the law paramount to this, which calls on him on behalf of a single one? . . . .The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would 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?
Jefferson claimed he was privileged to refuse to produce documents in response to a subpoena requested by Burr. He didn’t test his theory in court, though — he produced the documents requested.
Unfortunately for those who find Jefferson’s argument persuasive, the Supreme Court didn’t. In U.S. v. Nixon (1974), the court held that the president was not immune to a subpoena in a criminal case, absent a claim that the evidence sought would reveal military or diplomatic secrets.
Nevertheless, sequentialists maintain that the president is immune from criminal process during his presidency because he represents the entire executive branch. If the president were indicted, it would hinder his ability to represent the country, and if the president were convicted and sentenced, well, you get the picture. Opponents point out that presidents have survived worse inconveniences. They also point out that the Constitution provides that “In Case of the Removal of the President from Office, or on his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,” the vice president takes over. Non-sequentialists, then, find arguments based on the Constitution, its history, and the nature of the presidency unconvincing.
That’s where the legal trail ends. No court has decided the question. The view of the executive branch is clearer. In 1973, the Office of Legal Counsel and then-Solicitor General Robert Bork adopted the sequentialist interpretation — but only for the president. All other federal officers, the OLC contended, were amenable to criminal process. When Vice President Agnew was investigated by a grand jury soon afterward, he asked a court to stop the grand jury proceedings, arguing essentially, “Hey! I’m the vice president. You can’t prosecute me.” In a memorandum filed with the court, Bork argued that the vice president was subject to indictment and prosecution but the president wasn’t. Bork’s reasons for the distinction were mostly pragmatic: The president is too busy, and it would weaken him as a representative in foreign relations if he were embarrassed by a trial.
After Bork gave his opinion, the Supreme Court answered a few questions about presidential privilege and presidential immunity. First, the court decided U.S. v. Nixon, as we’ve already discussed. In two cases involving a sexual harrassment claim brought by Paula Jones, the court recognized that the president enjoys immunity from liability for his official acts but can be sued while still in office for unofficial acts (i.e., that weren’t part of his job). Some think this undercuts Bork’s reasoning. But in 2000, during Kenneth Starr’s investigation of the Monica Lewinsky matter, the Office of Legal Counsel reaffirmed its position.
There are some other interesting permutations here. What if the president is impeached but then acquitted by the Senate? Can the president be prosecuted after the regular four-year term expires? The Office of Legal Counsel contended that he could be in a 2000 memorandum. A related problem arose in the case of Federal District Judge Alcee Hastings, who was tried and acquitted of a series of offenses. When the Federal Judicial Counsel recommended his impeachment, Hastings objected on double jeopardy grounds, but his claim was rejected by the legislative branch and by his fellow judges.
By the time President Bill Clinton was impeached and acquitted at the end of the 1990s, there seemed little question that he remained liable to prosecution after his term expired. When USA Today asked about the effect of the impeachment proceedings on post-term prosecution of Clinton, Independent Counsel Robert Ray said: “Sure, it’s a factor. Is it a dispositive factor? No. Is any one factor a dispositive factor? No. There are lots of factors that go into whether to bring a case.” The former president reached an agreement with Ray — he gave up his law license for five years, among other things — and in exchange Ray agreed not to prosecute.
Another issue raised by the conviction of a sitting president is pardon. Can the president pardon himself? Once again, there is no clear answer in the Constitution. Amar says a sitting president cannot pardon himself; ex-White House counsel John Dean says, in effect, “why not?”
While no president has ever pardoned himself, the law supports the president’s authority to do so. Scholarly inquiry into the subject was provoked first by fear that Richard Nixon would pardon himself to escape Watergate; later by thought that George H. W. Bush would do so because of the Iran-Contra grand jury; and most recently by concern about Bill Clinton’s problem of a possible post-Presidency indictment and trial. And while a few scholars have concluded that the president cannot pardon himself, many more believe that he can.
There are a couple of international implications here too. What I’ve said so far applies to arrest and trial of the president in the United States. What if he’s visiting another country?
First, as a matter of international law, officers from one country cannot arrest someone in another country. To do so is considered a violation of the asylum country’s sovereignty. To be sure, many courts have concluded that the right to complain about the violation belongs to the asylum state and not an individual defendant. Under U.S. law a defendant who is illegally arrested can usually still be prosecuted. So if the president left the country, the U.S. could retrieve him for prosecution, knowing that if the asylum country complained, we’d have an international incident on our hands.
If we decided to comply with international law, we could try to extradite him, assuming the U.S. had an extradition treaty with the asylum country. Most extradition treaties exclude political crimes, though, so depending on the charge, this approach might not work. In that case the United States Attorneys’ Manual helpfully lists the following fallback options: requesting expulsion or deportation from the asylum country (called rendition), deportation from a third country (if the fugitive is dumb enough to leave the asylum country for one with less favorable extradition policies), lures (“A lure involves using a subterfuge to entice a criminal defendant to leave a foreign country so that he or she can be arrested in the United States, in international waters or airspace, or in a third country for subsequent extradition, expulsion, or deportation to the United States. Lures can be complicated schemes or they can be as simple as inviting a fugitive by telephone to a party in the United States”), red Interpol notices (a sort of international arrest warrant), revocation of U.S. passport (which will often result in deportation), and foreign prosecution.
One problem with foreign prosecution is head of state and head of government immunity. Persons holding either post are immune from liability or arrest while in office under international law. Once out of office, they can be sued or prosecuted for their private acts, but remain immune for their official acts. In the Pinochet case, the UK House of Lords reviewed the law of official immunity and concluded that international crimes are not official acts. This is the plight of former Secretary of State Henry Kissinger,
who was visited by the police in the Ritz Hotel in Paris and handed a warrant, issued by Judge Roger LeLoire, requesting his testimony in the matter of disappeared French citizens in Pinochet’s Chile. Kissinger chose to leave town rather than appear at the Palais de Justice as requested. He has since been summoned as a witness by senior magistrates in Chile and Argentina who are investigating the international terrorist network that went under the name “Operation Condor” and that conducted assassinations, kidnappings, and bombings in several countries.
So writes Christopher Hitchens in an article published on Slate.com in 2002. Hitchens says, “It is known that there are many countries to which he cannot travel at all, and it is also known that he takes legal advice before traveling anywhere.” A former president could find himself in a similar situation.
In sum, whether the president can be prosecuted prior to impeachment remains controversial. After impeachment, the president can definitely be prosecuted in the U.S. Even in another country, the president could be prosecuted for acts that weren’t part of his job or violated international criminal law.
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