sin-T utwr?s-M?L DOCID. 70102164 Screened by NARA (RD-F) July 10, 2017 UJRT516018) g?tpn- immu? of Hszsiin' munlfilzjun. 110:. 2113'!? September 24, 1973 Re: Amenahi.1i tv of the President, Vice Pies ident and other Civil Officers to Te121u1 Cringinal Prosecutic. while in f" l- LJJ.C3-I The question whether a civil offi.cer l/ of the federal government can be the subject of criminal proceedings while he is still in office has been debated ever since the earliest days of the Republic. This inquiry raises the ?01101-.isg separate a thougl to some extent interrelated issues. ?1555, rhether the constitutional provisions governing impeachment, viewed in general terms, prohibit the 5_ns:itution of federal criminal proceedings prior to the exhaustion of the itnpeachment process Second, if the first question is answered in the negative, whether and to what ex tent the P1 esident as head of the Executive branch of the Government is amenable to the juriSc: ction of the federal :curts as a potential criminal defendant. 15139: if it be determined that the President is immune from criminal prosecution because of the special nature of his office, whether and to what extent such immunity is shared by the Vice President. I. Must the igpenchment Process be Completed Before Crieinal Proceedines Nev be Instituted Against a Person Who is Linole to Impeachment? A. Textual and Historical Support for Proposition that Imfcr .chment Need Not Precedc Indictment. 1/ For a dis .cuss ion oi t:he cefinition of civil officer" as that term is used in Article 11, section A of the Constitution, See pp. 8-9 jnfru. BestAvaHabkeCopy I Page 1 fr 1- Views 0f 0? r1; co: Article 11, section 4 of the Constitution provides: "Ilia Pres ident. the Vice. President and all Civil fficers of the United States, shall be removed from Office on Impeachment for, and Conviction of Trees son, Bribery, or other hi? crimes and Misceneanors." Article 1, section 3, clause 7 provides: "Judgment in cases of Impeacntent shall not extend further than to renoval from Office, and disquali- fication 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 Punish- ment, accordi .g to Let." - The suggestion has been made that Article I, section 3, clause 7 prohibits the institution of criminal proceedings against a person subject to prior to the termina- tion of '?peachment roceedings.2/ Seaport ror this argument has been sought in Alexander Harilton' 5 description of the pertinent constitutional orevision in the Federalist Nos. 65, 69 and 77, which expla Ln that after removal by way of im- peachment the offender is Still liable to or minal prosecu- tion in the or inary cotr of law. 2/ We are using the torn ?termination of the impeachment pro- ceedings? rather than "re..oval by 1% av of impeachment" in View of the statement in Story, Co: .*3nt? 'es on the Constitution .criminal proceedin~s may be insti *1 of the United States, Vol. I, see. 732, quote below, that uted Wi her after an 25; guittal or conviction in the court of ea Nehnent The con- clusion that acquittal by the Senate does not bar criminal prosecution -ollous from the consideration that such an ac- quittal may be based, as discussed infra, on jurisdictional grounds, that the defendant is not an officer of the A United States in the constitutional sense, or on discretionary grounds, that the defendant no longer is an officer of the United States and unlikely to he resppointed or reelected, or on rounds \.hich are p;.rtly jurisdictional and partly sub- stantive, that the often"- ?as not of an impeachable nature. I NW: 16018 DocId: 70102164 Page 2 Article I. section 3, clause 7, however, does not say that a person subject to impeach. on: may he tried only after the completion of that process. Instead the constitutional provi.sion uses the term ?never theless. The purpose of this clause the- is to permit criminal prosetution in spite of the prior acjudication by the Senate. .izE?r to for?stall a double jeoparuy argument. A speech made by Luther Eiartin--who had been a member of the Constitutional Convention-?during the impeachment proce cu in: of Justice Chase shows that Article 1, section 3, clause 7 L35 designed to overcome a claim of double jeopardy rather than to require that impeachment must pre? cede any criminal proceedings. Annals of Congress, 8th Cong., 2d Sees.._ col. 632. Similarly Justice Story teaches in his Ccz~2entsries on the Constitution: "If the court of impeachment; is merely to pronoun: a sentence of removal from office and one tee: disabilities, then it is indispensable that yrovision should he cede that the common tribunals of justice should be at lioerty to entertain Jurisdiction of the oirence for the i mflict;.ng the common punisument . to unofficial offenders. Otherwise, nigh: b-e matter of doubt whether, consisteitl' tuitn the great rat in shove mentioned, q' lir.o; and liberty of the citizen, 3 second trial for the same offence could be had, either after an acquittal or a conviction, in the court of impeachments." Vol. I, sec. 782. Renle, another early commentator, states in his View on the Constitution of the United States of America (1829) at p. 2} This proVisiou was rendered necessary because the Consti- tutien liuits the judgment of impeachment to removal and disqualification, while under English law the House of Lords id nlno impose severe criminal sanctions including the death pcnalty,tn on. us of conviction on i.mpeachment. Story, op. cit., "01. i, 55 734, 733; Lawle, A View 0. the Consti- tutiun, 9. l4. 16018 DocId:76?102164 Page 3 - 3 - "But the ordinary tribunals, as we shall see, are not precluded, either before or after an impeachment, from taking cognizance of the public and official delinquency."' (Emphasis added.) 2. Interpretations of the imocachment clause by official bodies. The practical interpretation of the Consti- tution has been to the same effect. During the life of the Republic impeachment proceedings have been instituted only against 12 officers of the United States. Epngressional Directorv, 93 Cong., Sess., p. In the same time, presumably scores, if not hundreds, of officers of the United States have been subject to criminal proceedings for offenses for which they could have been impeached. It may be suggested that it is no answer to say that in most instances the officer presumably had resigned or been removed by the time he had been tried. If it really is the import of Article 1, section 3, clause 7, that an officer of the United States may be subjected to criminal proceed- ings only after the conclusion of the impeachment procedure, the question of tchether he is still in oflzice at the time of the criminal trial can be viewed as immaterial. The constitutional tea does not contain any express exception to that effect. Moreover, resignati. or removal arguably does notterminate the impeachment power as a matter of law. 4/ It is true that as a practical matter the House of Repre-- sentatives and the Senate are rcluct tant to exercise their time- consuming impeachment functions after a case has become of less moment, because the offender is no longer in office, esPecially after he had renounced all monetary claims against the United States. i/ However, because the sanctions for impeachment include disqualification to hold a federal office, 3/ The Constitution of the United States, Analysis and Interpretation, S. Doc. No. 39, 85th Cong., Sess., p. 556; H. Rept. 1639, 79th Cong., 2d Sess., pp. 38-39. 2/ See the dismissal of the proceedings against Senator Blount and former Secretary of War Belknap, and H. Rept. 1639, supra, pp. 1-2. - 16018 DocId: 70102164 Page 4 as well as removal, an impeachment proceeding instituted subsequent to completion of the term, resignation, or dismissal would not be a bootless act. And-yet it would seem to be an unreasonable interpretation of the Constitution to move from the latter prOpos:.tion to the conclusion--ne: essary under the argument that impeachment must precede indictment--that an offending federal officer acquires a lifetime immunity against indictment unless the Congress takes time to impeach him. - There have been several instances of legislative actions envisaging the criminal prosecution of persons while still in office, and of the actual inscitution of criminal proceedings against federal officers while in office. i. Section 21 of the Act of April 30,1790,l Stat. 117, provided that a judge convicted of having accepted a bribe "shall forever be disqualified to hold any office of honour, trust or profit under the United States." The dis- qualification provision of this section thus indicates that Congress antidipated criminal trials for bribery--an impeach- able offense--prior to a judgment of the Senate providing for .the removal and disqualificatidn of the offender. It should be remembered that this statute we 5 ene cted by the First Congress many members of which had been members of the Consti- tutional Convention. Obviously they, and President Washington who approved the legislation, did net feel that it violated the Constitution. The disqualification clause is now a part of the general bribery statute and applies to every officer of the United States. 18 U. S. C. 5 201(e). ii. In 1796, Attorney General Lee advised the House of Representatives that if a judge is convicted of a serious crime his' 'removal from office may and ought to be a part of the punishment.? He continued that, since the judicial tenure is during good behavior, a judge could not be removed unless lawfully convicted of some official misconduct by way of "information, or by an indictment before an ordinary court, or by impeachment before the Senate of the United States." The Attorney General concluded that while impeachment "seems, in general cases, tobe best suited to the trial of so high and important an officer" it Was not the only method, and in the particular circumstances he recommended trial of the judge by information or indictment. 3 Hinds, Precedents of - 5 NW: 16018 DocId: 70102164 Page 5 cc.) Vol. I, p. 151. The House Committee, to which the matter had been referred, concurred in that recommendation, Hinds, igid., Annals of Congress, 5th ng., 2d Sess., col. 2320. Here again it was felt at that early stage of our con- stitutional life that, at least in regard rt judges, impeach- ment did not have to precede the institution of criminal proceedings. Hence, Congress could provide removal of a judge for bad behavior, evidenced by a criminal conviction, although it has not done 30, except in the instance of a bribery Circuit Judge Davis retired in.1939 under the' provisions of what is now 25 U.S.C. 371?s). 2/ Borkin, The Corruot Judge, 116. In 1941 he was indicted for obstructing justice and tried twice. In both cases the jury was unable to agree and the indictment was ultimately dismissa . p. 119. Only then did the Attorney General request Congress to impeach Judge Davis. The lat er thereupon resigned from office waiving all retirement and pension rights. gg,, at p. 120. This in effect mooted the need for impeachment, but arguably not the power of impeachment. Sea snore. iv. -Judge Albert w. Johnson was investigated by?& 3 grand jury and testified before Lt prior to his resignation from office. See Finding of Fact $3 in United grates, 122 C. Cl. 100, 101 (1952). E: The of Justice concluded in-1970 on the strength of prec i sun- that criminal proceedings could against a sitting Justice of the Supreme Court. Shogan, A Question of Judgment, 230-233. Commerce Judge Arcnbald was investigated by the Department of Justice prior to his impeachment in 1912.- it is, however, not apparent whether this was a formal grand jury investiga- tion. Carpenter, Judicial Tenure in the United States, 145; Shogan, A Question of Jud:ment, 232. 2/ A retired judge remains in office; he possesses the right to receive the salary of his office and retains the capacity to perform judicial functions upon designation and assignment. 28 U.S.C. 294. 16018 DocId: 70102164 Page 6_ vi. Circuit Judge Kerner was 1ecently subjected to a grand jury investigation, indicted, and convicted while still in office. The question whether criminal proceedings can precede impeachment has been raised for the first time on appeal. In sum, the analysis of the text of the Constitution and its practical 5.nterpretatien indicate that the Constitution does not require the termination of 5.mpeachment proceedings before an officei of the United States may be subjected to criminal proceedings. The caveat is that all of the above instances concerned judges, who possess tenure under Article only during "good behavior," a provision not relevant to other officers. However, although this clause may be the basis for a congressional power to remove judges by processes other than impeachment, it is not directly reSponsive to the question whether impeachment must precede criminal indictment, nor was the clause the basis for the actions in the historic instances noted above. B. Troublesome Implications of 3 Proposition that Impeachment lust Precede Indictment. The opposite conclusion, 315., that a person who is subject to impeachment is not subject to criminal prosecution prior to the termination of the impeachment proceedings would create serious practical difficulties in the administration of the criminal law. As shall be documented, infra, every crimi.nal investigation and prosecution of persons employed by the limited States would give rise to complex preliminary questions. These include, first, whether the suspect is or we 5 an office of the United States within the meaning of Article 11 section A of the Constitution, and second, whether the offense is one for which he could be impeached. Third, there would arise troublesome corollary issues and questions in the field of conspiracies and with.re5pect to the limi- tations of criminal proceedings. An interpretation of the Constitution which injects such complications into criminal proceedings is not likely to be a correct one. Indeed, impractical or self-defeating interpretations of constitutional texts must be avoided. The Framers were experienced and practical men. This fact, coupled with the purposive spirit of consritutional interpretation set by Chief Justice Marshall, - 7 NW: 16018 DocId: 70102164 Page 7 has been the foundation for the endurance of our constitu- tional system for 186 years. l? Definition of "civil officer." If liability to im- peachment is a preliminary bar to criminal prosecution the question necessarily arises as to who is a "Civil Officer of the United States'l within the meaning of Article II, section a, of the Constitution. An officer of the United States has been defined as a person appointed by one of the methods provided for in Article 11, section 2, clause 2 of the Con- stitution, 3.3., by the President by and with the advice of Senate, or, on the basis of a statutory authorization, by the President alone, the Courts of Law, or a Head of a Depart- ment. United States v. Mouat, 12h U.S. 303, 307 (1886). But as Chief Justice Marshall, while sitting as a Circuit Justice, pointed out in United States v. Maurice, 2 Brock. 96, 103, 26 Fed.'Cas. 1211, 1214 (No. Va., 1823) not every public employment is an ?offiCe.? The latter term ?embraces the ideas of tenure, duration, emolument, and duties. United States v. Hartwell, 6 Wall. 385, 393 (1867); United Status v. Germaine, 99 U.S. 508, 511-512 (1878); Auffmordt v. ?edggn, 137 U.S. 310, 326-328 (1890). The notion of "office" in the constitutional sense thus presupposes a certain degree of continuity, a sneeification of duties, and of compensation. The most important aspect of this definition appears to be the requirement of tenure and duration. An assignment which en- visages the performance of a single specific task, or of occasional and intermittent duties, the ad hog position, is normally not considered to be an office. United States v. Germaine, supra; Auffmordt v. Hedden, supra; United States v. Maurice, supra; 37 Op. A.C. 204; The Constitution of the United States of America, Analysis and Interpretations, 5. Doc. 39, 88th Cong., ls: Sess., pp. 497, It is questionable whether the usual ekeeption of the ad hog position from the term "office" is applicable to the impeachment power; this raises the question whether, for instance, a Presidential agent appointed to perform a single diplomatic mission (5. Doc. 39, supra, pp. 499-501) could be impeached for bribery. NW: 16018 DocId: 70102164 Page 8 5 The decisions of the Supreme Court defining the term ffice ?.in the constitutional sense did not involve a further element, presumably because it was not relevazlt to tie 13.:ues rais~d in them, viz., that an officer in the constitutional sense must also be invested with some portion of the sovereign functions of the government. Mechmn, A Tree ise on the Lew of Public Office'end Public Of?icer se-cr..1, Z, and 4, and the cuthorit?es therein cited, H. Rept. 2205, 55th Cong., 3d Sess., pp. Cain v. United States, 73 Supp. 1019, 1321 (H.D., 111.. 1937 22 Op. A.G. 187; 26 id. 25- 259 (1907). It the "pres of H. Rept. 2205, at p. 52, a .erson employed in the Lxec utive branch is an offi- cer only if be en; Wcrce the law in a manner so as to effect the rignts of the people. A person employed by the United States wLo merely performs the duties of an expert, or advises or negotiate without being able to put into effect the re- sult of? nit advice or sugges:ions therefore is not an officer . in the co.dst txtio :1 sense. The requirement that an officer oust le vested with some element of the sovereign power of t.e Up; ted Stet s, recesaerily except the vast majority of federe' ezpl ?ye es fro: the scope of impeachment jurisdic- tion. ..nere or 3 only persons in the federal eteblisez-ert who actually have the power to make decisions whicc conce_a the public. but case-by-case determination could be ciffieult. tions mhethe the position of a person Employed' 1 Government satisfies the requirements of on, emolusent, and duties, and whether any GIEDL nt: of the soverci,uty of the United States are vested in it, irequently give rise to complex questions of law and fact. Renee, if on office: of the Unite -d States nnot be proceeded against criminally prior to the termination of the impeachment proceedings, those difficult issues would be in- ,jected into the criminal prosecution of any sitting or former federal employee in order to determine whether or not he is an officer itoune from criminal prosecution until trial by the Senate. Re seriously question that this is the true import of the Constitution. P. 16018 DocId: 70102164 Page 9 2. Offenses subject to impeachment. If it were assumed arguendo, despite our own conclusion to the contrary, that an officer of the United States is not subject to criminal proceedings'prior to the conclusion of impeachment proceedings, the scape of that immunity necessarily would be limited to offenses subject to impeachment. Such an asserted rule automatically would create another difficult- -adminis ter jurisdictional defense, viz., whether the ffensc in question is non impeachahle and therefore, subject immediately to criminal proceedings. According to Article II, section 4 of the Constitution, officers of the United States can be impeached for ?Treason, Bribery and other high Crimes and Misdemeanors." There is no need to define treason and bribery. But there is no enumeration of offenses comprised under the last two categories. no little difficulty has been experienced in definizg offenses in such a way that they fall within the meaning of the constitutional provisions." The Constitution of the_gnited States, Analvsis and Interpretation, 5. Doc. No. 39, 85th Coeg., 5e55,, p. 556, Early commentators indicated that "high Crimes and Misdemeanors" is a term of are intended to reach wrongs of a pol.itica1 or of a judicial character, neither limited to, nor encompassing all, indictable offenses. 2.5., Story, Commentaries, on. cit. Vol. I, 749, 764. Some writers stress'i the po-iticel nature of offenses over which a for the trial of impeachments would have jurisdiction. In The Federalist, No. 65, Alexander Hamilton explained: court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdic- tion are those offenses which proceed frOm the isconduct of public men, or, in other words, NW: 16018 DocId: 70102164 Page 10 from the abuse or violation of some_public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the Vsociety itself.? The following year during the Great Debate on the Removal Power of the President, James Madison submitted that, if the, President improperly removed-- "from office a man whose merits require that he should be continued in it he [the President] will be impeachable by this House before the Senate for such an act of maladmins istration; for I contend that the wanton removal 6f_?_meritorious officer would subject him to impeachment-and removal from his own high trust." Annals of Congress, Cong., col. 498. In 1790 and 1791 James Wilson, a signer to the Declaration of Independence and Associate Justice of the Supreme Court, in his law lectures, defined the term ?high misdemeanors" as malversation in office 2/ and he asserted: ?In the United States and in impeach- ments are confined to political characters, to political crimes and misdemeanors, and to politi? cal punishments." The Works of James Wilson, Vol. 2, pp. 165, 166. 2/ Malversation has been defined as misbehavior in office. Jowitt, Dictionarv of English Law. 11 - .NW: 16018 DocId: 70102164 Page 11 Story's detailed discussion of the rules governing impeachment, 22. gig. (Vol. 1, secs. 742-813), also stresses the political nature of impeachable offenses, and assigns this as the reason why they are to be tried.before a tribunal . more familiar with political practicescthan the courts of law. See, secs. 749, 76h-765, 800. He also points out that off?nses subject to impeachment necessarily cannot be limited to statutory crimes.lQ/ He explained that if-- "the silence of the statute-book [is] to be deemed conclusive in favor of the party until Congress have made a legislative decla? ration and enumeration of the offences which shall be deemed high crimes and misdemeanors the power of impeachment, except as to the expressed cases, is a complete nullity, and the party is wholly diSpunishable, however, enormous may be his corruption or criminality. lQ/ Section 800 contains a recapitulation of the numerous offenses which in English history had been subject to impeachment. They included: Misleading the King with un- constitutional Opinions; attempts to subvert the fundamental laws, and introduce arbitrary powers; attaching the great seal to an ignominious treaty; neglect to safeguard the sea by a lord admiral; betrayal of his trust by an ambassador, prepounding and supporting pernicious and dishonorable measures by a privy counsellor; the receipt of exorbitant grants and incompatible employments by a confidential adviser to the King. While Story felt that certain impeachments were unduly harsh and understandable only in the light of their age, such as giving bad counsel to the king, advising a prejudicial- peace, enticing the king to act against the advice of Parliament purchasing offices, giving medicine to the king without advice of physicians, preventing other persons from giving counsel to the king except in their presence, and procuring exorbitant personal grants from the king, he suggested that others were founded in the most salutary public justice; such as impeach- ments for malversations and neglects in office, for encouraging pirates, for official oppression, extortions, and deceits, and eSpecially for putting good magistrates out of office and advancing bad ones. 12 - Page 12 It will not be sufficient to say that, in the cases where any offence is punished by any statute of the United States, it may and ought to be deemed an impeachable offence. It is not every offence that by the Constitution is so impeachaule. It mu. .t not only be an offence, but a hieh crime and misdemeanor." Section 796. (Underscoring supplied). Yet to cite these commentators and say that impeachments are thought by some to be confined to wrongs of a political character more aptly characterizes the process than defines the offense. In short, it begs the question for a ?private" offense, of the sort that a non-officer may also commit, may have gross political ramifications if the perpetrator is a public officer. Is an offense that brings an office into disrepute and renders it dysfunctional a "political" offense? Disregarding a functional analysis of the impeachment clause suggested by the above question, William Rawle, another early commentator, took a narrow view of the term ?impeachable offenses." He would restrict it to offenses while performing the duties of the office? "The lt?gitimate causes of impeachment have beuzn already briefly noticed. They can only hc.e reference to public character and official c-ugy. The \ords of the text are treason, bribery, and other high crimes and mis'emeannrs. The treason contemplated must be against the United States. In general thoseu offences which may be committed Equally by_a private a public off1cer are ngt_the subjects of impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with office, except the two expressly mentioned, are left to the ordinary coursv of judicial proceeding, and neither house can regularly inquire into them, except for the purpose of expelling the member.? View on the Constitution of the United States of America (1829) at 215. 13 - Page LS Certainly, a case can be made that if impeachment is a process by which the faith in and integrity and effec- tiveness of the office of an offending incumbent can be restored,ll/ offenses which tend to bring the office into disrepute or render it dysfunctional should be impeachable whether or not committed in an official capacity. The constitutional remedy must be commensurate with the consti- tutional need. Extortion or forgery committed in private transactions seemingly has just as enormous an impact on the office as does bribery. As the Supreme Court of Louisiana recently said in a case involving a state impeach- ment, because there is "a deep and vital interest? in the office of Judge . . . the official conduct of judges, as well as their private conduct, is closely observed. When a judge, either in his official capacity.or as a private citizen, is guilty of such conduct as to.cause others to question his character and morals, the people not only lose respect for him as a man but lose reapect for the court over which he presides as well.? lg.?g Haggerty, 241 So. 2d 469 (La. 1970). ?gg also A. Simpson, Federal Impeachments 50?53. - In confronting this issue, Justice Story in his Commen- taries_chosc the safest course and presented the arguments without resolving the issue whether impeachment should be confined to official acts: In the argument upon Blount's impeachment, it was created with great earnestness that there is no: syllable in the Constitution which con- fines impeachments to official acts, and it is againSL the plainest dictates of common-sense Congressman Summers, Chairman of the House Judiciary Com- mittee, who was the Manager of the impeachment of district judge Bitter in 1936 viewed the impeachment function as depending on the effect of the offense on the office: "we do not assume the responsibility . . . of proving that the reSpondenL is guilty of a crime as that term is known to crimit jurisprudence. We do assume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause people to doubt the integrit of the re5pondent presiding as a judge." 80 Cong. Rec. 5&69, 5602-06 (7Ath Cong. 2d Sess. 1936). -014-- 16018 DocId: 70102164 Page 14 that such restraint should be imposed upon it. Suppose a judge should countenance or aid a insurgents_in a medicated conspiracy or insur- rection against the government. This is not a judicial act, and yet it ought certainly to be impeachable. He may be called upon to try the very persons whom he has aided. Suppose a judge or other officer to receive a bribe not connected with his judicial office, could he be entitled to any public confidence? Would not these reasons for i: removal be jus: as strong as if it were a case of an official bribe? The argument on the other side was, that the power of impeachment was strictly confined to civil officers of the United States, and this necessar- ily implied that it must be limited to malconduct in-office. ?805. It is no: intended to express any opinion in these commentaries as to which is the true exposition of the Constitution on the points above stated. They are brought before the learned reader as matters still sub judice, the final decision of which may be reasonably left to the high tribunal constitutine_the;ggurt of impeachment when the occasion shall ar' . Commentaries, op. One hundred and forty years later, the question con- cerning what criminal statutory offenses can be made the subject of impeachment proceedings remains open. For the offenses not falling within the impeachment jurisdiction, the offender/officer could be prosecuted even if the Constitution precluded the criminal prosecution of impeachable offenses prior to the conclusion of impeachment. However, if impeachment were indeed a condition precedent to criminal prosecution, a person accused of a common offense committed while in the employment of the United States could plead that the offense was of a political nature and that he could not be prosecuted prior to the conclusion of impeachment proceedings. This would inject into the trial of a criminal case the delicate issue of what is a political or impeachable offense, and what constitutes a common non-impeachable crimE.- 15 - 16018 DocId: 70102164 Page 15 Further, this delicate issue seemingly would be before the wrong forum (see Story quotation above). The actual power to impeach 391 ?33 in every instance rests with the House of Representatives and net with the courts. And this congressional power -- laying aside the possible outcome in some future instance of alleged gross abuse -- subsuncs within it the threshhold issue of determining whether an offense is impeachable. ,In a criminal proceeding a judicial conclusion in favor of the impeachable nature of the offense would of course, not require the House of Representatives to impeach or the Senate to convict. In- deed, a number of considerations might induce nonaction by the Congress even ii an "offense" were held by a court to be impeaehable (and therefore a jurisdictional bar to indict- ment), ngJ, (1) higher legislative priorities for other business -- legislation, treaty approvals, confirmations of appointments, investigations, (2) political pressures not to act, (3) inappropriatness of a political trial for the given offense, (4) an estimate of ultimate failure to garner the necessary simple majority in the House and two- thirds vote in the Senate, thereby precluding the attempt, (5) a desire not to exacerbate political relations because of the adv rse effect on governmental concerns. For the above reasons, a rule that impeachment must precede indictment coold operate to impede, if not bar, effective prosecution of offending civil ofTicers. The~ sensible CUUISG, as a general proposition, is to leave to the judiciary the trial of indictable criminal offenses, and to Congress the scope of the overlapping impeachment jurisdiction. The gross impracticalities of a rigid rule that impeachment precede indictment demonstrate that it would be an unreasonable, and improper construction of the Constitution. 3. Problems presented by corollary issues. There are also reasons oi a corollary nature which counsel against the conclusion that impeachment proceedings must be completed before a civil officer may be subjected to criminal proceedings. (0) During a grand jury investigation, it may appear for instance, that one of several co-con- spirators is an officer of the United States 16 16018 DocId: 70102164 Page 16 A.L as was the case in Jehnson v. United States, supraf It would seriously with the investigation if it had to be suspended in respect to that officer, or indeed as to the other co-conSpirators, until the termination of impeachment proceedings. The alternative is equally unappealing. If evidence were nonetheless presented in respect to the other co-conspirators, serious charges would inevitably be levied against the civil officer who Would not have the opportunity in a judicial tribunal to clear himself. Further, if the civil officer actually is involved in the conspiracy, his nonparticipation at trial could impede prosecution of the co-conspirators. A similar consideration is presented by the statute of limitations- If an officer cannot be prosecuted prior to impeachment, the criminal statute of limitations could easily run in his favor. If his immunity blocked effective prosecution of co- conspirators, the statue of limitations might run in their favor too. The Criminal Code does not con- tain and, to our knowledge, never has contained a section providing for the suspension of the statute of limitations in the case of an officeholder until the termination of impeachment proceedings. The absence of such provision suggests Congress has considered suvh a rule to be unnecessary. Such practical interpretation of the Constitution is en- titled to great consideration. Stuart v. laird, Cranch 299, 309 (1803); Field v. Clark, 143 U.S. 649, 691 (1892); United States v. P?dwest Oil Co.. 236 U.S. h59, 472-?73 (1915); United States v. Curtiss- Wright Corp., 299 U.S. 304, 328-329 (1936). In sum, an interpretation of the Constitution which requires the completion of impeachment proceedings before a criminal prosecution can be instituted would enable -persons Who are or were employed by the Government to raise a number of extremely technical and complex defenses. It also would pressure Congress to conduct a large number of impeachment proceedings which would weigh heavily on its limited time. Such an interpretation of the Constitution is prima facie erroneous. 17 . NW: 16018 70102164 Page 17 II. I IS the Preridcnt to Criminal . "fieo': Edie felt of tl.c mom rendum deni- with the questio on whethzf end to iftnL extent rthe President is itrunc {ran erivznel prosccution x:hile he is in of rice. it has teen :2 JeStcd in the treat-din; nurt that Article I, see. 3, clause 7 of the ?9.5titution does not require the exhaustion of the i pinnaent process before an officer of the United CtnLe: at: be tuujectcd to criminal proccecinJS. The ques- tion therefore crises whether an i .nmnitv CL tne President ir-m crizinel proceedinzs can be justified on other trounds, ?in particular the consideration th: 2 the President's sub- jection to the jurisdiction of the courts would be inconsis- tent tith his position a: head of the Executive bLanch. 1; ?gs been indicattd ;.bove that there is no express provision in the Constituti ch conic such immunity Cast the Presiu-nt. Iqusuch ts article 1, sec. 6, clause 1 ch; ec-tv n:C"ides for a limited immunity of the members of the Le,iuT.ativ ve b:a.ch, it could be argued that, g_cou:rcrio, the is not cntitled to any immunity at 311.. gal EhiJ p::p iLion- however, is not necessarily conclusive; it :aid with equal validity that article 1, sec. 6, cLJuuc does not ccgfer any irwunity upon the members of Congress, out rather limits the inn-enity from juiiciri urocec oian vhi on they ot53etwise t-tauld enjoy as members of a brexch co-cqual with the judicie-'. :2 .. gal 1n nis of March 5, 1800 on the floor of the Senate, seneter Sickeey, a former Member of the Constitutional Conven- 'tion, 5J3 .;c5ted that the failure to provide for a Presidential i:.mutlit" \:as Annals of Congress, 6th Con3., col. 7w; I-?frr: ad, Records of rhe Federal Convention V'ol. II I, pp. JlJ-i, um). - 13 - NW: 16018 DocId: 70102164 Page 18 . Further, an indicated by statements of Alexander Hamilton in l'he So. 69,.13/ it could be said that the immunit" of the Prcsiecnt to criminal and trial durit; ?115 office may have been too well. accepted to .eed constitutional I: :ntion ana105y to the -nf ich Crown), and that the 1153:-Live urovicion was the evoeif cd process of impeachment extending even to La: Presicent. Hamilton's conments were made in the context of calming fears about txecucive power and oi: W3. shin; the President from the Lnglish king. Legardin: timinsl liability, his stro1eot statement would have been tb_at the President was subject to er rir~ne1 :Ejpre or after impeach: out, yet on the oeczsjon wher- he med; the comparison he spoke only of criminal liability nice- impeachment. To be sure, there are strong statens-nts 1y steers to the point that the Convention did not wish to confer privileges on the lg] Inc rquraiist, no. Lb: ":he rrcsideot [unlike the Kin") Um" uld be 1 able to be impeached, tried, and upon conviction re- moved from office; ;.nd "ould afterwaroo be liable to nrosecution and in the ordinary course of See also the followir.r from unzilte". The ?st, to. OS: "The pm shment, which no? he tee of conviction u:_on impeachzent, ;3 not to terminate the the stieezont of the ?figg having been to pcrpet: :1 ostraci. :m 9 he will still be liable to prosecution and L-unieheen: in the ordinary course of low.? The Vegeralist, X0. 77: ?Ihe President is at all times liable to imp: ach? ment, trial. dismission from office and to the forfeiture of life and potato by subsequent prose- cution in the common course of law.? I .- .- .NW: 16018 DocId: 70102164 Page 19 President, but those were end: in most general terms, and did not refer to :hc qucs tio :1 now in 15512. Further, despite these utatcments an early rccoanize one form of privilene in the Lxecutiva *a at least one instance. 15? 'ihe historical evidancc on the precise point is no: eone1u5_ve. Pecstation of A. in a tor-t" Power: Lr-umrnt. Any argument based on rho positfon or independence of one 5 the ?.hrce hr- aches 0.. the Coeremeat in subject to the uallfiLaLLon that too constitution is not based on 0. an airti;ht acperttlon of par but rather on a system of checks and balances, or of blending the three powers. The R03. 57, 3 (James Lanison). We must therefore proceed case- by-ca:c and look to underLyin; purposes. This facet of an) reasor'u? based on the doctrine of the separation :5 it no? 3:3;23ed by those who no one indepen- ?7 uanee or Hit) i: a ELveu instance. examples include two u-d dissenting opinion: of Hr. Justree Holmes. - 33/ inc Iraror of the Locatitucicn n.c?e it .bundantly clear that the President was 12?: endad to be a Chief Executive, responsible, subject to the lat ., and leekiea the prerogatives and privileges of c: Ln3lzn?. Lee, 3.3., James Jilscn's statements that he of the British monarch more not to be gator 'cfinin3 Executive (t?arrami. I p. 65) and that rrtu;r.at an: LC :.oovc the law, nor have a ""19 privile,e ann:ncd to hit character. 2 Elliot Doha 420.1n the Lorth Carolina Convention, James Iredcll contrasted the position of the King 0: Lngland who holds his c:thcr-:" by ttnri ht. has great powers an- prerogatives, and can do no U, with that of the President who is no better than his fellow citizens end can pretend no superiority over the meancct man in'the country. A Elliot's Pcbatcs 109. 15/ Sec, 0.2., President ha:zhing :nn's- efusal in 1794 to submit to the Senate tho: parts 05 a diplomatic coarcspondcnee which in his "judjment 10: public considerations, ou3ht not to be communicated." 1 Eiehardson, Lenin'OE Powers of the Preside 1Q 152:1 fenatc Joernei 147. See Attorney Genera; . ?uolph's note to Preoicent rushiugton that the message ?appears to have given 3enerol eatiarSCtion. Mr. in particular thinks it will have ;o 006 ef?cct." The Writints of {harm (Sienntenuial. L'dition) Vol. 33 p. 2"2 1n 3. .NW: 16018 DocId: 70102164 Page 20 20 ?sV I Forin?cr v. Phi-11eni no In Lends 277 U.S. 189, 209-210 (1928), he veve granule (agitation to the crtent which the elcacnt in toe toasti: :ution a blunted the principle ed the: separation of powers "The great ordinances of the Cons: Cation do not establish and divide fields of black and white. the more specific of them are found to terminate in a penumbra shading c:radually from one extreme to the Other. then we come to the funda:.ental distinctions it is still more obvious that they muse be received with a certain latitude or our governrent could not 50 on." .5116 Clair: in V. 13111:"! 52? 177 (1926). he vcrn: th.t? any ?la-21 arn' events cream merely from the pot or of the Pros. at, his duties to appoint n'fice is it ?h eUniLed Sta tea and to couaission them, and to talm ca. that the laws he carefully ez: outed seem to him 1 Mp5 Jet's :obs inadequate to control dominzotiacts." Lhether or net one agrees with Holmes or tile full thrust of his rhetoric, cost scholars would concede that there are few ?.rea -s unae1 the Constitution to thich a -inuie branch of the Savernucnt can clai a monopoly. An argume.nt based on the ssp:rzt-cn 01 powers gust be illuminated therefore by conscitutio m.1 r-ractice. The difficulty of dcreloping clear rules regarding the various possible facets of Presidential insanity is demon- strated by the limited and ambivalent case law developed in the fields of the amenebility of the President to c'.ril litiyation and to the judicial subpoena power. Much this or ecedcnt has been discussed in our memorandum dated June 25,1973, regarding Presidential Amenability to Judicial Subpoena. In the ?33; treason trial, Chief Justice Marshall at xf' first concluded that since the President is the first magis- crate of the United states, and not a King who can do no wron;, he was suuject to the judicial subpoena power. United v. nurr, 25 Fed. 523. 30, 34, No. 14,692 (C.C.D. In the Burr misdemeanor trial, however, which took 16018 DocId: 70102164 Page 21 21 place-only a few months later, the Chic WJL=ticc had to cualifv sitnificontly his cltim of that ubpo (.33 power over he Proti$ont uy i;L:t the courts are not required ?to proceed against the President as against an crrioa: indiviuual." Unit"d $-9:oq v. Torr. 25 red. C35. 187, 193, Lo. 14,394 Va., 1807). .t3d by tr.JLLacint in 230 privibgeo claimed by President c; not attendin; court in person and of withholding "ttin cvi to {or rotten: of State, Chief Justice Marshall litcu :h.t Lhe power of the judiciary to subpoena the out is subject to limitations based on the needs of the on :iol oi ficethe special the Pz'oicontizi o; utendod in v. Egitod'?totes o" 3:31. 610 (13? wnere the Court cnr~eo to ?13} that it had any jurisdiction over the President: Ll. i? ?The execu:ive power is vested in a presi- ?ont; and so for as his powers are derived {tom the constitution, :o is beyond the reach of aoyv other departn61t, except in the mode proscrioed by the constitut ion txrough the impeachment." i iflcant this apparent tote 1 disclaimer of 1 1:1 authori'y over the Pt esiacnt also was 'dia; the clause ?50 {arias his powers are derived tron See also Chici Justice nershall' a statement in the Burr L: eson trial .0 isoue a subpoena to a person $111133 the exalted position of the chief maxgistratc is a duty Which would be dispensed with more cheerfully than it would be performed.? Id. at p. 34. -. 16018 70102164 Page 22 here have been countless examples in which courts have ass?xc' _1u:ie':c:ion to scrutinize the vnli??.cv of ?resideh- 3 nroclr.oationr, Lxecutixc orders, 17/ 3L1 He miJna by the Free .idcnt clue that, as a altcer of convention -y assert the validity of the Presidential action (nectar: oleintlli or dejcndant) is usually 3 party other than President, such as his subordinate, or the custodian 1 the li/ there have been recent dicta . the: Lion chi: co.vcncion is to protect the citi:.en55-:1 LJ.LCC n- i. ., the Pcszidcn: :zlone cc: u11m; the requestedr relief. LL: covrrs may assume jurisdiction over the 1?.t138tion. See the June 23. 1973 mezoxanoum. Appendix -. :12, Attornv" General Stenbery's famous oral argument I in Hiveforieoi v. Jg?nrn?, 6 Wall. 475; on voice cue grief in cgeosition by the Lttornevs for tea Presi- dent 1: 33?29 h.L. Kiss. 251123 2: neuvi'", is prefaced by the stcurw a: that the case can; a :ainst President Johnson "is no? code against him as an izxjivieucl, as naLaral person, is; any acts he intends to do as Andrew Johneon a man, but alto;:c1 in egg official conceitya 5?:esident of the batted Hence, n?Ltoroey (2enere1 8 reasoning is limited Lo Lb: of the courts to review oi.1:ia1 action of rh: President, 21/ and does not pertain to me quczetion whether or not the courts lack the authority to col ?lth the President ?the man" with reopec: to matters ?.le El.- gh?Li?L?Pq?fr ?11 Iri?. "5t? 299 UOS. 304 {1525) (3033:;0 3ni-r=' vect13 v. Bush, 310 U.S. 3?1 19 (ch: 19:15 ProclamaLion). .vviw v. raw 1-. 343 579 (1952) :el .o1. It may well be that under the normally operative procedural cs thz- Pro:idcnt rould be considered the real party in -1 Mlockly Compilation of Prenidcn.tial Document: 961, 963, 970 I ?ll In La: eyes of the Court, the dismissal of the proceedings V55 hence a the ?round the: 5.: locked jurisdiction over the subject latter o"c1 Lhe of the PresidenL.. I 1: Is? rhoarn by 11? diomiocal of Similar brou- ;ht bv the.1tc of C- orue against Secretary of war Stanton and General Grant. 511-1311. 50 and 451 (1367). NW: 16018 DocId: 70102164 Page 23 23 which have no relation to his of?icial resonnsibility. Uhus it cancers thin under .3: constitutional plan it cannot or scid arth;: t~tt tie to . ts have the same jurisdiction over the Bratidcnt as if he an ord' Lea ry citizen or that the is cazolutcly iuzunc iron the jta'isuiction of the court .3 in r: are to kind oi 1h1e proPer nzproech is to -ir.d the areas: 12-; n; 2 the ncrwa 31 functions of the ecu-:5 cad the :pcclul and functions of the Presi"e::C". D. Car-ruin; Infe"c:ta. desiz1ed to determine the ex tent to which the statue oi ?"LsidC'cy is ith ;;ivin' the courts plcvary c:;r1wq1 jar -.u_Ltrou Over the Pr ?dent may be divided in:1 :30 parr~. Einst, Lao the Pro *uau:y c- :zonsi: -cx5tions vhich in Part I of this macarr:dum 1:4 to rejr 2-0a of the preposition that impeachment ems: criminal 93:: Izciu3:., and, 92-:0 nd, whether criminal intersects?: a: 1.55;: mzial sentences Lauzld improperly intericre ern the Prcuidcnt' constitut 12$ .5 duties and be ei.th hiu crates 1. 1?_?53ft :r'xl nt a Pro nidr:ut too ralitical for the .. of :hic monarchs-v.21, ior a variety of L. L: L_u;o A: the consieertticns \fhith led to the a- 1T3C3Chll?nt jurisdiction, EL: courts not to handle 01;:2cc5 rat crim.s .rcd bv high offi'e- holutrz, were luau- hi 5.L:nt to C?cmot 61L officer of the United c; L;_inal prosccutica iur statutory offenses prior La the tcrhiucr on of the impeachment proceedings. The question to be xcnincd here is whether these reasons are so much stronger in the of the President as to preclude his prosecution while in ufiicc. c. Pc?yti::1 Political offences subject to .zro cicacr L.Lru:ory or nonstatutory offenses. The coszza, of course, antot adjudicate nonstatutory offenses. with ruspoc: to statutory political offenses their very inuiution in 'kc Pcnul is an indication of a congressional determination that they can be adjudicated by a judge and jury, 2h 16018 DocId: 70102164 Page 24 _5epa:3tion 0 NW: 16018 DocId: 70102164 Page 25 sod thero 39 pc at to be on weizhty r-a:en r? differentiate between Lh. Fret fp -ent a .d other of ficehold- ., unless special overs based can be on t1.eulo.CLJ with clarity. It should be noted that it hl? b; well establirLed in civil matters that the courts lack gur dj_c:ion to rerexamlnc the e"cr:icc of by an of Lie: .3 of Lhe ;.xocutlve wrench Eerhurv v. Fadison, 137,1n: ?eece: 1r v. r. . (lauJ); 7?35" v. grave Li_t?e, inc 365 3.3. 359,3 LL :iy Lne Lax: LUKCE it woulo appear tna: the cour :5 lack jurisdiction in crilinal procc. oulnns Lhich have the Lilac: of uuceziznin; the are L: exercise of the President' a is rtinn. his conclusion, of course, Lould involve a lack of 31" .sciction over the subject matter anL not over the person. -.tituLlon o; m::cnm :nL, Lue trial of political Liorc dif; ;;u1rins. __hc consiea?:ations here b. .r1.c"11" ?oliri'21 Flourco. The second teaser (I men, olc:eoL - invo?HLd ere tket the 25:32:: corrzo coy no: b: able to cope with ?"?crful Lou, and 2&3: if :11; Lo ?ifricult to ?use: a ?31: trial in cruuinol pro. mc>LiOD3 of this type. . rho consider: .2: rho: :he ordin ry courts of lowr are to with ?.311. 35:) -sc Englani where it: arose mus valid _n ;nuual time. In the we ditions new prcvuiilv? in the United Ltate ittle uoi:;ht is to be given to it a; iar as 5: hue {See Kaela, :1 . n- n- .0n. cit., :Lnrl, aLl). Ezwilt;n?3 point that in hi?n nLL_Ccl?, it is virtually .. art: 1 we assumed I -- 3: Pn?' -. polnL 33L 0; :1 Tithon; d; '13 importnn nee to requir orior ?0 with copeet to e"crv officzholdor. Untoibzadlv, the consideration of assuring a fair crimin21. trial :01 a President while in office would be extremely difficulL. It might be impossible to impenel a neutral jury. 10 be sure there is a serious 22 ?inc prosecution of then 0.. political crimes committed by political men] for this reason,tri11 Seldom fail to agitate' the passions of the whole ccmmuniu;,c1' r9 divide it into parties -oze or less f:.thJ1y or in Lui.ccl to the accused. In (conLlnued) IQVV: "fairntza" urohlcm whether the criminf .1 trial 3r ?911 on: nt. ?cuc: m1, the latter unfairucs is :Gntt:.:lh cd :nJ r:uc::;ct in the clause i.tzelf, thug Izhc Hit? in imnsaulin; 0 neutral jury snould not be viewed, in itself, an absolute bar to ludictutul of a p"blic fl ;urc. 2. ?ould ("Lointl Frorro?in.s a sidr:qt be int-F"! 11- 7'31 3, t'r' CL: wears re -- - ?w?v .- 1'1 22-33 231002;? IJ.t'le ta; Glitz-EC nL-citl. Lil View of the control 03 all cric'n: pr by the at ttorncv General who at the pleasure and normally subject to the dire L. of the and the pardoning poucr vested in the President. sec r.:plv L:!cx filed by {or the President in In Re tirrf-r'I 811:. (30c t-upro}, 5? ?0.2ka Compilation of .. Tzco;cunl-Ll -c-zu?tnt-z and the authorities thoze 21:26. loans, it :3u].d he argued a Pro status as dc;cuc.tnt in a crizin_l cute would or. repulnant to his office of ?Eitf unit: includes the ?one: to oversee prose- cutions. in other words, just us a nurson tatnot be judz5e in 51: con he cannot bc prosecutor and dc fondant at the some C?ht. objection uoul? lose some of its pcrsuasiveness uncr', :5 in tho case, the delegates his -u -2L;f15 to tne Attornev Gene tail, who in turn delognt then to a ?pccial I?rozccutor. Reply Brief, snore, at 1030, in. l. none of there dole -;tti3rs is. or le5ally can be, absolute or irrevocuulc. further. the problem of Executive p13.v- lobe may create the appezrt1co of to serious a conflict of interest as to make it in?ropcr that lhu President should be a defendant in a crlzinal cnsc. lf Prosidcnt claims the privilege he would be accused of evidence unfavorable to him. If he fails to do so tho charge would be that by makin3 available evidence to him he is prejudicin; the ability of future Ptczidcnto to claim privilege. And even if all other azc surmounted, he would still possess the pardoning powe: 22/7 :ucd) many ccsc: it will connect itself with the Dry-existing factions, and will :1llst all their tuiuositlcs, partialitics, in?lucnce, and inzr.- on one side or on the ouncr; and in such cases Luurc will be the greatest d5n;c: that the decision will be ucrc hy the conporativc ottcn5th of partico than uy rho rurl oi innocence or guilt.? Tho 16018 DocIdz' ?70183184 ?oul? "15u1v interfnre in a Giroct or torr rr?no hiLh cone not of the P"ca1 idenjg? a. It ha; been indicated above t'ne: in ?xv" case, :rcoidcnt Jefferson claimed the of TD: h:ving to attend court in person. And it is fare-?117 3:2:on:ni cd that high government officiala or K?;c .-1th from _'1e duty to attend court in ncrson in order to itc""? 3. one on: memorandum of June 25.1973, sunra, pp. 7-3. flair uoold :1-1cor to be inconsistent wit: a criminal pr::ccnticn xzhich necessr.rily requires the appearance of the dais; cut for pleas and trial, as a practical 1 she be noted that the exemption of high :an Ci: iolo f):om personal appearance is only the rule. in ?r13 v. Haired 3L..1es Donor-"cut of it CE gel, 1. 7L-) cue court cautioned tb1t cei?1it; officer to oral deposit ion is not countena need - (Underscoring supplied). The ouaehin: of 2 subpoena iJre- -s:cd to the HASA Administrator in Linitzl Vn1din? Co. v. szer, 36 F. R.3. ?5 (9.6. D.C., lho?), E35 on to: circuzs t: 'c that tho Administrato had no pars one] l:nowled;_ cf the event. _Persone1 attendance of hi;o eizfiei 213 has boa: equircd?in several exceptional cases oh re of?ic.in1 x1e directly and personally involved in the unacrlyin: the litigatu":. Union of 201'. 1' 31-3-02. 209 5:11:31]. 31? :r or to Vir~o or~oxnt on V. Paiewonakv, 1 .4. Lorin E'slka.? of Civic Anigeintion v. Volvo, 316 Supp. 754, ?53 in. 12 reversed on other 3roc..dn 459 F. 2d 1231 (L.A. D.C., 1972) cc rtiereri denied U.S. 1031 (1973) (Secretary of Transportation). Because a defendant is already personally involve: in a criminal case (if total immunity be laid aside), it may be questioned whether the normal privilege of high officials not to attend court in person applies to criminal proceedings.in which the official is a defendant. -27- .NW: 16018 DocId: 70102164 Page 27 b. Direct interference with official duties. A necessity to defend a criminal trial and to attend court in connection with it, however, would interfere with the President's unique official duties, most of which cannot be performed by anyone else. It might be suggested that the same is true with the defense of impeachment proceedings; but this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process. The Constitutional Convention was aware of this problem but rejected a proposal that the President should be suspended 23/ upon impeachment by the House until acquitted by the Senate."? I During the past century the duties of the Presidency, however, have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution. This might constitute an incapacitation so that under the provision: of the Twenty?fifth Amendment, Sections 3 or 4, the Vice President becomes Acting President. The same would be true, if a conviction on a criminal charge would result in incarcer- ation. However, under our constitutional plan as outlined in Article 1, sec. 3, only the Congress by the formal process of impeachment, and not a court by any process should be accorded the power to interrupt the Presidency or oust an incumbent..? Z?/That decision was based in part on the consideration that a simple majority of the House should not be able to suspend the President. 2 Farrand, Records of the Federal Convention 612. Tucker's Blackstone, Vol. 1, App., pp. 347-348, which, having been published in 1803. did not have the benefit of the Madison papers, presumed that a President would be instantly incapacitated when actually impeached. 24/ See Story, op. cit., sec. 786. .NW: 16018 DocId: 70102164 Page 28 28 a would snug-est otrougglv that, in View of the unique cancct? of the {:fficv of the Srcsidcnt, criminal proceedings again: a Erasiotn: in office should not go beyond a point where they could in to serious 3 thsicol interference the Erusidcnt'n worforvence of to offic al duties that it would amount Lo :n incopac Station. ['Ihe non-physical yet pract.ic:1 in terms of ca1ccity to govern, are discusses i..fra as :hc? _cur:u rucstlon."l The PhYsicel co;n thraticn. of course. ?.ould not be quite as sc:.ioco Lc;azci:; r.i.nor lce ding to a short trial and a fi1zo. In in the J.nn -5, 19 3 Hemorandum, p. .1, the 2 President; have submitted to to-: oi the c1::te in aonnection with traffic antes. notevcr, in more serious matters, those which could rcrulxe the arctractcd personal involvement of the in tzricl uroccrcin_: the Presidency would be do roiled i: the lzetidcnt \:ere tried orior to removal. A not mentioned is to in?ict a sitting Traci <11: but deft: nrocecdings until he is no longer in of?izc. from the st: l'rlint of direct interrup- tion a: 1FI?nicl duties settL1zt aside t11e question of the pow_r LC pruned: re mi ht be a course to be con- :idc"cn. Cue consideration "ould b1 that this procedure would stop Zn" unn-n: of the statute of limitations. (For details sec pp. n; o: -his memorandum.) It is uncertain vhothol ocn1_Itutional conclusion that the President could In 1111.12.72. 111.14: ii.- ozfice ILrou ld 12.1 viewed as tolling, the 5L*Lutc5 of 112;:zotions. hhilc this approach may have? a cleiv to n: ccn::ju?rcd a: a oolut i: to the problem from a point 3' :iru. it woul-i overlook tim political realities. 55 will Le presently, an indictment han1,1ng ever ;rL:inc-::L while he iemains in office would do: go the institu:-o: of the virtually to the some extent as an actual con.?iction. Tobe sure, there could also be damage flowinr 5.11.11 mural-.1 :cd Che It also may be noted that the rosoih_li; ti. 2: a Presiurut may escape all prosecution by the runni.-; of the thlzute or 11:2itations is not a constitutional matter. It.n 1ol'cui'c1arding statutes of limitation is within control. NW: 16018 DocId: 70102164 Page 29 irltirfion 2? qgm- rczt1nn of: criminal proceeding: 3:1 . wax-.9 my: to :ovcrn, :Zu-?Li njg'p ?21} 11., Cl: 1?7177: 01: 23:2 9:72:11 Zn .01 v. ;Ef?i?1?a ?ywzz1, ?5:03:23 U::ucraJ btcnuexy mane th iollouing SLnto::nt: "It is not Lem my och liar immunity that the iLdiVldEli has who 1m p323 to be resident; 2221 avy 1622 tho: he ccunot do wrong; noon 2: 2: coat thzre 15 any -::ticular b2- longin3 to him as an indi idoal, as is the case with one who L25 :cyol blood in his veins; but it is on account of the office that he holds that I so} the Pr si?cnt of the United States? 3 above tim pr cess of any court or the juris- ctloa of an} 22.3: to bring him to account as This may be an ove:statc:cnt, b: Surely it contains a kernel 5 truth, 22:21? that too PresidenL is the symbolic head of is wound him by a criui .al proceeding is to the operation of the ?hole governmental apparatus, i 133 and domestic affairsLhe coder" Presidency, under Whatever party, has had to 0:2?22 2 leadership role undreazed of in the eighteenth and carlv nL cc: '2uries. The spectacle of an indicted Pres idL.L oL ill crving to serve as ChiLf T3 'ccutivc boggles the iLannaL ion. Perhaps thiami21ht is best tented by'conaidcring what would flow {ran the re 2:2156 conclusion, an attempted crimiaa trial of the yrccidcnt. A President after all is 32.122 Led in a highly cn:.:91 2x n3tior.wide CL ?fort that involves most 2 the. :10: ooclo-ccocomlc and political forces of our whoLe society. would it not be incongruouo'to bring him down, before the Lonfress acted, by a jury of twelve, seleCEcd by chance the street? 2: Holmes put it? Surely the House and Senate; ia inocachrent, are more appropriate agencies for such a cru: tzsk, uzda unavoidably political by the nature oi the cc: 2 ?1 -30.. 16018 DocId: 70102164 Page 30 Hra .5urnn 0.. :75 mc-u rmcu yr ondwzaa wo?mw uv un furn 3: --nnaun unn rs-;u: ?rm HanHwn:;? um 5n nupwnhum. rdnnu.mnm armr. sucwm wr .nm bu no nannw no yw?n m: mu: nu msn?n nhc..: .5 Hum ?menu H50 on n50 re: H5 nnannmn oomern ?u Huvn nuuawma. awno ?rm U?ocwh?m OH 0.. 9 ?wk: I .I Pu . .nnhonmuu 53? ?mw HI mnun-rr. wra ?aww?o n$:Jo mum 3H97HTJ4 :5 m. nmen use Hon 74. fol. 105mm . ww nounuu mafwu?nth 7% ?unkom- ntmu 535:: til MN um man noun Knownzv ?oswc we Kahuna: 1 I urn sun on LJWH mh; (nun-Of did?! ?In Oh to .u1cuo no ?no nuz?nnc Hm Jn o? 0H Fu?m. .muno w? Hm 31..th 1 2 .a HmEoemw flunk? uul :0 . 3J0 .Io Iru up. ?my $46. ND col-u. ulo- . ru\ quvld- 1.9. .-- .: IN- ler 1 Snow?un?lis?u. as non Honnrm. 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