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June 16, 2017

Charlie Savage

c/o The New York Times
1627 I Street. NW, Floor
Washington, DC 20006

Dear Mr. Savage.

I am writing in response to your Freedom of Information Act request of May 18, 2017 for records
in the custody of the National Archives and Records Administration. Your request was received in
this office on the same date and assigned FOIA case tracking number 53042.

You requested access to the draft indictment of President Bill Clinton and related documents that
provide legal analysis on the question of whether a sitting President may be indicted, found in the
Records of Independent Counsels Kenneth Starr and Robert Ray.

I have conducted a preliminary assessment of the entries you identified from the OIC file manifest
and have confirmed the responsiveness of the following files:

486 DC. Paul Rosenzweig Attorney Work Files: 2. William Jefferson Clinton Indictment
232 DC. Jay Apperson Attorney Work Files: 6. Presidential lndictability

232 DC. Jay Apperson Attorney Work File 7. Project Idaho

405 DC. John Bowler Attorney Work File . DOJ Brief -- Indictment After Impeachment
405 DC. John Bowler Attorney Work File 5. WJC Status Memorandum

405 DC. John Bowler Attorney Work File 6. WJC Status Memo Supplemental Materials

 

All of these records. with the exception of the file titled DOJ Brief -- Indictment After Impeachment,
require screening for categories of information exempted from disclosure under the terms of the
Freedom of Information Act (5 USC 552). prior to public release. In particular, documents may be
redacted to preserve the secrecy of grand jury proceedings pursuant to Rule 6(e) of the Federal
Rules of Criminal Procedure.

Requests for investigative files that do not exceed 500 pages are assigned to our first-tier
processing queue. Taking into consideration our existing backlog. the estimated time required to
complete the processing of your request is approximately 24 months from the date of this letter.

To notify this office of a chanie in your contact information or to track the status of your request,

please telephone 301 or e-mail specialaccess foia@nara.gov. If you have ecific
questions regarding the subject of your request. please contact me directly at 301* or

1

@nara. ov. All communications concerning this request should rel'erence FOIA case
tracking number 53042.

ll' you are not satisfied with our action on this request and would like the opportunity to discuss our
response, you may contact our FOIA Public Liaison for assistance:

Accessioned Executive Branch Records -- Washington, DC Area
FOIA Requester Service Center: 301-837-3190

FOIA Public Liaison: Martha Wagner Murphy

8601 Adelphi Road, Room 5500

College Park, MD 20740-6001

Telephone: 301-

E-mail: dcfoia: iaisonQnaragov

Sincerely,

r, 
\svatrrt/ 
ROBERTREED


Special Access and FOIA Staff

    

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July 10. 2017

Charlie Savage

c/o The New York Times
1627 Street. NW, Floor
Washington, DC 20006

Dear Mr. Savage.

I am writing in further response to your Freedom of Information Act request of May 18, 2017 for
records in the custody of the National Archives and Records Administration. Your request was
received in this office on the same date and assigned FOIA case tracking number 53042.

have completed a line-by-line review of four documents found in the Records of Independent
Counsels Kenneth Starr and Robert Ray and released information to the greatest extent possible.
Two pages have been redacted to protect the personal privacy of living individuals per 5 USC 552
and and to protect information derived from documents filed under seal with the
United States District Court for the District of Columbia. A summary of the results of this review is
provided below:

DC box 405, John Bowler Attorney Work Files, DOJ Brief -- Indictment after
Impeachment, Memorandum from Randolph D. Moss, Assistant Attorney General,
Office of Legal Counsel, August 18, 2000 (51 pages released in full).

DC box 232, Jay Apperson Attorney Work Files, Presidential lndictability, Draft
Memorandum from Ronald D. Rotunda, May 13, 1998 (56 pages: 54 pages
released in full and 2 pages released in redacted form).

DC box 232, Jay Apperson Attorney Work Files, Project Idaho, Memorandum from
Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel,
September 24, 1973 (41 pages released in full).

DC box 232, Jay Apperson Attorney Work Files, Project Idaho, Memorandum from
Robert M. Bork. Solicitor General of the United States, October 5, 1973 (23 pages
released in full).

This concludes the processing of the expedited portion of your request. If you have questions
concerning my review of these documents or would like to make arrangements to receive copies,

please contact me directly mm or 301-

If you are not satisfied with my action on this request. you have the right to file an administrative
appeal within ninety (90) calendar days from the date of this letter. Appeals must be in writing and
may be delivered by regular U.S. mail or by e-mail. By filing an appeal, you preserve your rights
under the Freedom of Information Act and present the deciding agency with an opportunity to
review your request and reconsider its decision. If you submit your appeal by regular mail. it
should be addressed to the Deputy Archivist of the United States (MD), National Archives and
Records Administration. 8601 Adelphi Road. Room 4200, College Park, Maryland 20740-6001.
Both the letter and envelope should be clearly marked Appeal." If you submit your appeal
by e-mail. please send it to foia@nara.gov. addressed to the Deputy Archivist, with the words
Appeal" in the subject line. Please be certain to explain why you believe this response does
not meet the requirements of the Freedom of Information Act. All communications concerning this
request should reference FOIA case tracking number 53042.

If you would like the opportunity to discuss our response and attempt to resolve your dispute
without initiating the appeals process. you may contact our FOIA Public Liaison for assistance:

Accessioned Executive Branch Records -- Washington, DC Area
FOIA Requester Service Center: 301-837-3190

FOIA Public Liaison: Martha Wagner Murphy

8601 Adelphi Road, Room 5500

College Park, MD 20740-6001

Telephone: 301--

E-mail: dc.foia. on@nara.gov

If you are unable to resolve your dispute through our Public Liaison. the Office of Government
Information Services (OGIS) is the federal FOIA ombudsman. OGIS offers mediation services to

help resolve disputes between FOIA requesters and federal agencies. You may contact OGIS at
the following address:

Office of Government Information Services (OGIS)
National Archives and Records Administration
8601 Adelphi Road, Room 2510

College Park MD 20740-6001

ogis@ nara gov
202-741-5770

1-877-684-6448

Sincerely,

1 c'
\awL/frri/ Via/e
ROBERTREED


Special Access and FOIA Staff

 



. . i 

 

Screened by NARA (RD-F) July 10, 2017

 

FOIA 53042 (URTS 16018)
DOCID: 70102162

 

 

RONALD D. ROTUNDA . UNIVERSITY OF ILLINOIS
THEALBERTE. JENNER, JR. Fromm? OF LA COLLEGE OF LAW
PHONE: (21 7) 333-3459 504 E. AVE.
w: (21 244?1478 CHAMPAIGN, IL 618206996

EMAIL: rrotundO@IOw.uiuc.edu HOME PAGE: 

May 13, 1998

The Honorable Kenneth W. Starr
Independent Counsel

O?ice of the Independent Counsel
100 1 Ave, NW.
Suite 490 North

Washington, DC. 20004

Re: INDICTABILITY OF THE PRESIDENT

Dear Judge Starr:

SUMMARY AND INTRODUCTION.

You have asked my legal opinion as to whether a sitting President is subject 
to indictment.? Does the Constitution immunize a President from being indicted for
criminal activities while serving in the o?ce of President? For example, if the
President committed a crime before assuming of?ce, does his election to the
Presidency immunize his criminal activities? If the President in his private capacity

commits one or more crimes While in of?ce, does his election serve to immunize him? 

In short, is a sitting President above the criminal law?

As this opinion letter makes clear, I conclude that, in the circumstances of this
case, President Clinton is subject to indictment and criminal prosecution, although
it may be the case that he could not be imprisoned (assuming that he is convicted and
that imprisonment is the appropriate punishment) until after he leaves that of?ce.
A criminal prosecution and conviction (with imprisonment delayed) does not, in the

 

For your information, I am attaching a resume listing my publications.

NW: 16018 Docld: 70102162 Page 1

 

 

 

2

1 words of Nixon v. Sirica,2 ?compete with the impeachment device by working a

2 constructive removal of the President from o?ice.?

3

4 In addition, I express no opinion as to whether a prosecution by state

authorities may be proper (a state prosecution may violate the Supremacy Clause)-

6 Nor do consider whether the President could be indicted if there were no

7 Independent Counsel statute. In the circumstances of this case, there is such a

8 statute, and it was enacted as the speci?c request of President Clinton, who knew 
9 at the time he lobbied for and signed the legislation that a speci?c purpose of the
10 statute was to investigate criminal allegations involving him. He welcomed the
11 independent investigation so that it could clear the air.
12
13 In addition, as discussed below, I express no opinion as to whether the Federal
14 Government could indict a President for allegations that involve his official duties as
15 President. The Of?ce of Independent Counsel is investigating allegations that do not
16 involve any of?cial duties of President Clinton. The counts of an indictment against
17 President Clinton would include serious allegations involving witness tampering,
18 document destruction, perjury, subornation ,of perjury, obstruction of justice,
19 conspiracy, and illegal pay-offs; these counts in no way relate to the President
20 Clinton?s of?cial duties, even though some of the alleged violations occurred after he
21 became President. The allegations involved here do not involve any sort of policy
22 dispute between the President and Congress. The allegations, in short, do not relate
23 to the President?s of?cial duties; they are not ?within the outer perimeter of his
24 of?cial responsibility.?3 Indeed, the alleged acts invOlved here are not only outside
25 the outer perimeter of the President?s of?cial responsibility, they are contrary to the 
26 President?s of?cial responsibility to take care that the law be faithfully executed.
27
28 Also, as discussed below, a grand jury indictment is not inconsistent in present
29 circumstances with the conclusion reached by the Watergate Special Prosecutor.? For
30 example, in the present case (and unlike the Watergate situation) a criminal
31 prosecution would not duplicate any impeachment proceeding already begun in the

 

2 487 F.2d 700, Cir. 1973) (per curiam) (en banc). President Nixon chose
not to seek US Supreme Court review of this decision. Instead he ?red Watergate Special
Prosecutor Archibald Cox.

3 Nixon u. Fitzgerald, 457 US. 731, 756, 102 2690, 2704, 73 L.Ed.2d 349
(1982).

4

I should disclose that I was Assistant Majority Counsel to the Senate Watergate 
Committee. -

NW: 16018 Docld: 70102162 Page 2

 

 

3

1 House of Representatives.5 In the Watergate era, the House of Representatives had
2 prior to the time that Special Prosecutor Leon aworski turned over any
3 information to the House Impeachment Inquiry already made the independent
4 decision to begin, and, in fact, had begun impeachment proceedings. In the present
5 case, no House Impeachment Inquiry has begun, and, if one were to begin, it would
6 only be because the House of Representatives would be responding to information
7 that the Of?ce of Independent Counsel would transfer to the House of
8 Representatives. Watergate Prosecutor aworski. in short, did not want to preempt
9 the House inquiry that had independently begun. Now, there is no House inquiry,
10 and the OIC would not be preempting any House inquiry. While the Independent
11 Counsel statute authorizes the OIC to transmit relevant information to the House,
12 the statute does-even suggest that the OIC must postpone any indictment until the
13 House and Senate shave have concluded any impeachment inquiry.
14
15 In this country, the US. Supreme Court has repeatedly reaf?rmed the state
16 that no one is ?above the law.?6 The Constitution grants no one immunity from the



 

5

See LEON JAWORSKI, THE RIGHT AND THE POWER 100 (1976). Watergate
Prosecutor aworski?s views are discussed below. One should also note that, in the present
case, the House might not see ?t to begin an impeachment, or it might decide that the alleged
violations of law do not merit removal from of?ce, either because some acts occurred prior to
the time of President Clinton's assumption of of?ce or because they do not rise to the level of
impeachable offences.

As Justice Joseph Story has noted: ?There is also much force in the remark that an
impeachment is a proceeding purely of a political nature. It touches neither his person, nor his
property; but simply divests him of his political capacity. JOSEPH STORY, COMMENTARIES ON
THE CONSPITUTION, 406, at 289 (RONALD D. ROTUNDA E. NOWAK, eds. Carolina
Academic Press, 1987, originally published, 1833).

6 United States v. Lee, 106 US. 196, 220, 1 240, 260, 27 171
(1882); United States v. United Mine Workers of America, 330 US. 258, 343, 67 677, 720,
91 884 (1947); Malone u. Bowdoin, 369 US. 643, 651, 82 980, 986, 8 L.Ed.2d 168
(1962) (Douglas, J., dissenting); Malone v. Bowdoin, 369 US. 643, 651, 82 980, 986,
8 L.Ed.2d 168 (1962) (Douglas, ., dissenting);Johnson 0. Powell, 393 US. 920, 89 250,
251, 21 L.Ed.2d 255 (1968)(Memorandum Opinion of Douglas, ., regarding application for a
stay); Branzburg v. Hayes, 408 US. 665, 699, 92 2646, 2665, 33 L.Ed.2d 626 (1972);
Gravel v. United States, 408 US. 606, 615, 92 2614, 2622, 33 L.Ed.2d 583 (1972); United
States v. Nixon, 418 US. 683, 715, 94 3090, 3111, 41 L.Ed.2d Butz v.
Economou, 438 US. 478, 506, 98 2894,2910, 57 L.Ed.2d 895 (1978); Davis 0. Passman,
442 US 228, 246, 99 2264, 2277, 60 L.Ed.2d 846 (1979); Nixon v. Fitzgerald,
457 U. S. 731, 758 n.41, 102 S. Ct. 2690, 2705 n. 41, 73 L. Ed. 2d 349 (1982); Briscoe u.
LaHue, 460 U. S. 325, 358, 103 S. Ct. 1108, 1127, 75 L. Ed. 2d 96 (1983); United States 0.

(continued. 

NW: 16018 Docld: 70102162 Page 3

 

 

4

1 criminal laws. Congress enacted the present law governing the appointment of
2 Independent Counsel, at the speci?c request of President Clinton and Attorney
3 General Janet Reno. All of the parties the President, the Attorney General,
4 Congress knew that the speci?c and immediate purpose of this statute would
5 result in the appointment of an Independent Counsel to investigate certain
6 allegations of criminal activities that appeared to implicate the President of the
'7 United States and the First Lady. Since that time, the Attorney General has, on
8 several occasions, successfully urged the Court to expand the jurisdiction of this
9 particular O?ice of Independent Counsel (hereinafter, "010") to include other
10 allegations involving the President and Mrs. Clinton.
1 1
12 As the judiciary has noted in the past, the President ?does not embody the
13 nation?s sovereignty. He is not above the law?s commands . . The people ?do not
14 forfeit through elections the right to have the law construed against and applied to
15 every citizen. Nor does the Impeachment Clause imply immunity from routine court
16 process.?8
17
18 In the remainder of this opinion letter I examine the case law, the legal
l9 commentators, the history and language of the relevant Constitutional provisions, the
20 legislative history of the Independent Counsel law, the logic and structure of our
21 Constitution, and the laws governing the Grand Jury?s power to investigate and
22 indict. As discussed in detail below, if the Constitution really provides that the
23 President must be impeached before he can be prosecuted for breaking the criminal
24 law even if the President commits a crime prior to the time he became President, 
25 or if he commits a crime in his personal capacity, not in his of?cial capacity as
26 President the our Constitution has created serious anomalies.
27
28 First, it is quite clear that a President may be impeached for actions that do

 

6 (. ..continued)

Stanley, 483 US. 669, 706, 107 3054, 3076, 97 L.Ed.2d 550 (1987)Brennan, J., joined by
Marshall, ., concurring in part dissenting in part); Seminole Tribe of Florida 0. Florida,
517 US. 44, 103 n.2, 116 1114, 1146 n. 2, 134 L.Ed.2d 252 (1996)(Souter, J., joined by
Ginsburg Breyer, Clinton U. Jones, U.S. 117 1636, 1645,
137 L.Ed.2d 945 (1997). .

7 Nixon v. Sirica, 487 F.2d 700 at 711 (footnote omitted).

3 Nixon U. Sirica, 487 F.2d at 711 (per curiam) (en banc) (footnote
omitted)(emphasis added). 

NW: 16018 Docld: 70102162 Page 4

 

 

5

1 not violate any criminal statute.? Acts that constitute impeachable offenses and

2 are violations of a crime created by statute (our Constitution recognizes no

3 common law crimes) are two different categories of acts. Moreover, if the President

4 does commit a crime, that does not necessarily mean that he must be impeached,

5" because some crimes do not merit impeachment and removal from of?ce.

6

7 For example, if the President in a moment of passion slugs an irritating

8 heckler, he has committed a'criminal battery. But no one would suggest that the

9 President should be removed from of?ce simply because of that assault. Yet, the
10 President has no right to assault hecklers.10 If there is no recourse against the
11 President, if he cannot be prosecuted for violating the criminal laws, he will be above
12 the law. Clinton 0. Jones rejected such an immunity; instead, it emphatically agreed
1,3 with the Eight Circuit that: ?the President, like other of?cials, is subject to the same
14 laws that apply to all citizens.?11 The ?rationale for of?cial immunity ?is inapposite
15 where only personal, private conduct by a President is at issue.?12 The President has
16 no immunity in such a case. If the Constitution prevents the President ?om being
17 indicted for violations of one or more federal criminal statutes, even if those statutory
18 violations are not impeachable offences, then the Constitution authorizes the
19 President to be above the law. But the Constitution creates an Executive Branch
20 with the President under a sworn obligation to faithfully executive the law. The
21 Constitution does not create an absolute Monarch above the law.
22
23 In addition, as also discussed below, if the President must be impeached prior
24 to being prosecuted for serious violations of the criminal law, then Congress would
25 have the ?nal determination of when a criminal prosecution must begin. But it 7
26 violates the Doctrine of the Separation of Powers for the legislative branch of
27 government to control when (or if) a criminal prosecution may. occur. It would even
28 violate the Separation of Powers if Congress were to make the decision of the

 

9 See, JOSEPH STORY, ON THE 405,. at p. 288

(RONALD D. ROTUNDA JOHN E. NOWAK, eds, Carolina Academic Press, 1987, originally
published, 1833): "Congress have unhesitatingly adopted the conclusion that no previous
statute is necessary to authorize any impeachment of any of?cial misconduct . .

1? Cf. Gary Borg, Chretien is Charged Brie?y with Assault, CHI. TRIB., May 7, 1996,
at A10, available in 1996 2669290 (reporting that the Canadian Prime Minister 
the ?rst time this century that a sitting Canadian Prime Minister was faced with criminal
charges was charged with assault for grabbing a protester by the throat; the charge was
later quashed).

us. 117 1636, 1638. (1997).

'2 117 1636, 1641 (quoting Eight Circuit)(emphasis added).
NW: 16018 Docld: 70102162 Page 5

 

 




Ammuoxo

6

Attorney General to refuse to seek (or to seek) the appointment of an independent
counsel subject to judicial review.?

Moreover, as the case law discussed below indicates, if the Grand Jury cannot
indict the President, it cannot constitutionally investigate him. But, in Morrison v.
Olson? the Supreme Court upheld the constitutionality of the Independent Counsel
Act and the constitutionality of grand jury investigations under the direction of an
Independent Counsel appointed by the court. Morrison implicitly decided the issue
analyzed in this opinion letter.

The Constitution does grant limited immunity to federal legislators in certain
limited contexts, as discussed below, but those immunities do not exempt Senators
or Representatives from the application of the criminal laws. One looks in vain to
?nd any textual support in the Constitution for any Presidential immunity (either

 

?3 Morrison 0. Olson, 487 U.S. 654, 108 2597, 101 L.Ed.2d 569 (1988). The
Court made it quite clear that it was necessary, in order to save the constitutionality of the
Independent Counsel statute, for the Court to conclude that it gave neither Congress nor the
Special Division any power to force the Attorney General to appoint an Independent Counsel
nor any power to direct or supervise the Independent Counsel once the appointment took place.
For example. the Court in Morrison also said: "[T]he Special Division has no power to appoint
an independent counsel sua sponte; it may do so upon the speci?c request of the Attorney
General, and the courts are speci?cally prevented from reviewing the Attorney General's

decision not to seek appointment." 487 U.S. at 695, 108 at 2621. As to Congress, the -

Court said: "The Act does empower certain Members of Congress to request the Attorney
General to apply for the appointment of- an independent counsel, but the Attorney General has
no duty to comply with the request, although he must respond within a certain time limit." 487
U.S. at 694, 108 at 2621. The Attorney General?s decision not to appoint an Independent
Counsel is ?committed to his unreviewable discretion,? even though the Act purports to require
the Attorney General to appoint unless ?he ?nds ?no reasonable grounds to believe that further
investigation is warranted.? 487 U.S. at 696, 108 at 2622.

Morrison also made clear that Congress could not remove or prevent the removal of the
Independent Counsel, and the Special Division could not remove the Independent Counsel.
In order to save the statute?s constitutionality, the Court interpreted the statutory provision
relating to termination to mean virtually nothing: ?It is basically a device for removing from
the public payroll an independent counsel who has served her purpose, but is unwilling to
acknowledge the fact. S0 construed, the Special Division?s power to terminate does not pose
a suf?cient threat of judicial intrusion into matters that are more properly within the
Executive?s authority to require that the Act he invalidated as inconsistent with Article 
Morrison, 487 U.S. at 683, 108 at 2615. See, Ronald D. Rotunda, The Case Against
Special Prosecutors, WALL STREET JOURNAL, Jan. 15, 1990, at p. A8.

'4 487 U.S. 654, 108 2597, 101 L.Ed.2d 569 (1988).

NW: 16018 Docld: 70102162 Page 6

 

 

7

1 absolute or temporary) from the commands of the criminal laws. If the framers of our
2 Constitution wanted to create a special immunity for the President, they could have
3 written the relevant clause. They certainly knew how to write immunity clauses, for
4- they wrote two immunity clauses that apply to Congress."5 But they wrote nothing
5 to immunize the President. Instead, they wrote an Impeachment Clause treating the
6 President and all other civil of?cers the same way. Other civil of?cers, like judges,
7 have been criminally prosecuted without being impeached. Sitting Vice Presidents
8 have been indicted even though they were not impeached.
9
10 As Nixon v. Sirica16 carefully noted: ?Because impeachment is available against
11 all ?civil of?cers of the Untied Sates,? not merely against the President, it is dif?cult
12 to understand how any immunities peculiar to the President can emanate by
13 implication from the fact of impeachability.? Moreover, it would be anomalous and
14 aberrant to interpret the Impeachment Clause to immunize the President for alleged
15 criminal acts, some of which occurred prior to the time he assumed the Presidency
16 and all far removed from any of the President?s enumerated duties: witness
17 tampering, destruction of documents, subornation of perjury, perjury, illegal pay-offs.
18
19 BACKGROUND.
20
21 The Of?ce of Independent Counsel has investigated and continues to
22 investigate various matters that are loosely grouped under the name of ?Whitewater,?
23 which is a particular real estate deal that involves land developed in Arkansas. The
24 ?Whitewater? label is often used in the popular press. However, the investigative 
25 mandate to this Of?ce of Independent Counsel is broader than this title implies.
26 There are land deals other than Whitewater that are part of this investigation as well
27 as other matters, such as the scandal involving the White House Travel Of?ce and
28 the misuse of FBI ?les by political operatives working in the White House. More
29 recently, the Attorney General petitioned the Court to expand mandate and
30 jurisdiction to include Various allegations surrounding Ms. Monica Lewinsky and
31 involving obstruction of justice, witness tampering, perjury, and suborning of
32 perjury.l7

 

15

U.S. Const., art. I, 6, cl. 1 [limited privilege from arrest; speech or debate
privilege]. Both of these immunities are very limited in scope, as discussed below.

"5 487 F.2d at 700, 711 n.50 (DC. Cir. 1973) (en banc)(per curiam) (internal
citation omitted, citing the Impeachment Clause, Art. 11, 

?7 In that case, when the 010 came upon the initial information, the OIC referred.
the matter to the Attorney General and suggested various alternatives: the Department of



NW: 16018 Docld: 70102162 Page 7

 

8

Attorney General Janet Reno and the Department of Justice have rejected the
Claims of those who seek to narrow the jurisdiction of this OIC.18 In addition, the
Attorney General has, at various times, expanded the original jurisdiction of the OIC
to include matters beyond those originally within the OIC mandate.19 Indeed, the
Attorney General has even gone to court in order to submit these matters to you and
to expand the 010?s jurisdiction over your objection.20 While she has expanded the



 

?7 

Justice could take over the investigation, or the DOJ could investigate together with the OIC,
or the DOJ could turn over the entire matter to the OIC, or the DOJ could seek the
appointment of a new Independent Counsel. The Attorney General chose the third alternative
and asked the Special Division to expand the jurisdiction of the OIC.

The Special Division granted this special request of the Attorney General. The OIC did
investigate after it had reCeived oral authorization to do so. This oral authorization was
followed by written authorization.

?3 When others have claimed that the OIC is acting outside of its jurisdiction (a
claim, for example, that Governor Jim Guy Tucker advanced in court), the Attorney General -
has also supported the 010?s jurisdiction and the Eight Circuit agreed with this position.

?9 i The scandal and charges that have been collectively referred to as ?Travel-gate?
(involving the White House Travel Of?ce) or the Files? (referring to FBI ?les sent to the
White House and then used for partisan purposes) ?t in this category.

The Attorney General?s efforts to expand your jurisdiction are also signi?cant because
recent events show that she is often reluctant to seek the appointment of a Independent
Counsel. She has refused to appoint an Independent Counsel in various matters relating to
campaign ?nance, even when the Director of the FBI has supported the appointment of an
Independent Counsel. And, in matters involving other Independent Counsel, she has objected
to any expansion of jurisdiction, even when the courts have eventually ruled that her position
was legally in error. Terry Eastland, How Justice Tried to Stop Smaltz, Wall Street
Journal, Dec. 22, 1997, at A19, col. 3-6 (Midwest 

2? It is unusual for the subject of an investigation by an Independent Counsel to
attack the bona fides of the Independent Counsel. For example, neither Attorney General
Meese nor his personal attorney ever personally attacked the people investigating him, even
though the Independent COunsel was a member of the other political party. In fact, it has been
typical for the Independent Counsel to be a member of the opposing political party.

I am aware that some supporters of President Clinton (including his wife and
occasionally the President himself) have engaged in public attacks on the OIC and personal

attacks on the bona fides of its attorneys. They accuse the OIC of partisanship and abuse of
the prosecutorial powers. However, the fact that Attorney General Reno who serves at the


NW: 16018 Docld: 70102162 Page 8

 



Court Sealed
9

jurisdiction of the OIC, President Clinton has refused-6h several occasions to testify
before the Grand Jury, had pled executive privilege in block his aides from testifying,
and has urged the creation of a new type of priwleg?e to prevent Secret Service Agents

 

from testifying. 

 

 

 

 

1

Notwithstanding these roadblocks, the investigation is proceeding to the point
that there is signi?cant, credible, persuasive evidence that the President has been
involved in various illegal activities in a conspiracy with others (in particular his
wife), to tamper with witnesses, suborn perjury, commit perjury, hide or destroy
incriminating documents, and obstruct justice.

If the President were any other of?cial of the United States, for example, a
Cabinet O?icer or a Congressperson, I understand that the two Deputy Independent
Counsel (one, a former US. Attorney and the other, a former member of the Public
Integrity Section of the Department of Justice) have concluded that an indictment
would be proper and would issue given the evidence before the Grand Jury. The
Of?ce of Independent Counsel is, in general, required to follow the Department of
Justice regulations governing other federal prosecutors. To refuse to indict the
President when the crimes are serious enough and the evidence strong enough that

 

2? 

pleasure of President Clinton and is the highest law enforcement of?cial in the Department
of Justice has gone to court to expand your jurisdiction (even over your objection) is

inconsistent with these attacks. If she thought that the OIC or any of its attorneys were acting
improperly in investigating President Clinton, she would make no sense for her to be ?ghting
to expand the 010?s jurisdiction. Morrison 0. Olson, 487 US. 654, 108 2597, 101 L.Ed.2d
569 (1988), discussed below, made it quite clear that the Attorney General?s decision not to
seek the appointment of an Independent Counsel is not reviewable in any court.

Recently, a bipartisan group of former Attorneys General of the United States have

joined together to rebut the attacks on the integrity of the Independent Counsel. Their

statement of March, 1998, was extraordinary. It said, in part:

?As former attorneys general, we are concerned that the severity of the
attacks on Independent Counsel Kenneth Starr and his of?ce by high-
level government officials and attorneys representing their particular
interests, among others, appear to have the improper purpose of
in?uencing and impeding an ongoing criminal investigation and
intimidating possible jurors, witnesses and even investigators.?

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- (C)

 

 

 

10

1 a Senator or Cabinet Secretary would be indicted would bejinconsistent with the

2 010?s obligations to exercise its prosecutorial discretion the same way that the

3 Department of Justice attorneys exercise their discretion to indict.

5 Moreover, there is the apparent injustice that would? result if the Grand Jury

6 . would seek to indict the various members of this conspiracy Hillary Rodham

7 Clinton) while refusing to indict the center of the conspiracy.21

8

9 Ifthe Grand Jury simply issues a report of the facts that it has found, but does
10 not indict even though it concludes that there is substantial evidence that the
11 President has committed serious crimes, then the President has no judicial forum to
12 present his side of the story and seek vindication infthe judicial system. As then
13 Solicitor General Robert Bork said, in arguing that a sitting Vice President can be
14 indicted:
15 g,
16 ?An of?cer may have co-conspirators and even if the o?icer

 

 

21 I

 

 

 

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11

were immune [from indictment], his co-conspirators would not be.
The result would be that the grand and petit juries would receive
evidence about the illegal transactions and that evidence would
inevitably name the of?cer. The trial might end up in the
conviction of the co?conspirators for their dealings with the
of?cer, yet the of?cer would not be on trial, would not have the
opportunity to cross-examine and present testimony on his own
behalf. The man and his of?ce would be slandered and
demeaned without a trial in which he was heard. The individual
might prefer that to the risk of punishment, but the courts should
not adopt a rule that opens the of?ce to such a damaging
procedure.?22

Consequently, you have asked my legal opinion as to whether it is
constitutional to indict a sitting President for actions that occurred both before he
became President and while he was under investigation.

In order to answer the question, it is important to understand the
constitutional issue in context. The question is not, as an abstract matter, whether
any sitting President is immune from the criminal laws of the state or federal
governments as long as he is in of?ce. Rather, the question is whether given the
enactment of the Independent Counsel law under which the OIC operates, given the

historical background that led to that law, and given the constitutionality of that law

as determined by Morrison v. Olson23 it is constitutional for a grand jury to indict .
this President if the evidence demonstrates beyond a reasonable doubt that the
President is part of an extensive and continuing conspiracy, stretching over many
years, involving witness tampering, document destruction, perjury, subornation of
perjury, obstruction of justice, and illegal pay-offs all serious allegations that in
no way relate to the President Clinton?s official duties, even though some of the

 

22

In re Proceedings of the Grand Jury Impaneled December 5, 1.972, Application

of Spiro T. Agnew, Vice President of the United States, Case Number Civil 7 3-965,
Memorandum for the United States Concerning the Vice President's Claim of Constitutional
Immunity, Oct. 5, 1973, at p. 21 (emphasis added). Judge Bork concluded that a sitting Vice
President could be indicted prior to impeachment but he also said (in dictum) that the
President would be immune from indictment prior to impeachment. While Judge Bork argued
that the President should be immune from indictment, his reasoning at this point supports the
opposite conclusion. His point is well-taken: the Of?ce of Independent Counsel should not cast
a charge against the President without giving him a judicial forum within which to vindicate
himself.

23 487 US. 654, 108 2597, 101 L.Ed.2d' 569 (1988).

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12

1 alleged violations occurred after he became President.

2

3 Before turning to this particular question, it is useful to consider some

4 . background matters. 

5

6 CRIMINAL PROSECUTIONS 0F CHIEF EXECUTIVES OF OTHER COUNTRIES.

7

8 First, it is interesting that democracies in other countries do not recognize a

9 principle that an individual would be above the law and privileged to engage in
10 criminal activities simply because he or she is the President, Premier, Prime
11 Minister, Chief Executive, or Head of State. In fact, heads of state are not immune
12 from criminal prosecution even if we only look at countries with a tradition of living
13 under the rule of law that is much weaker than the tradition that exists in the United
14 States. I have been unable to ?nd any instances where a democracy even a
15 democracy that also recognizes a King or Queen has immunized its Chief
16 Executive Of?cer from criminal conduct simply because he or she is the Chief
17 Executive Of?cer.
18
19 On the other hand, it is quite easy to ?nd examples of foreign heads of state
20 subject to prosecution for allegedly criminal activities. Even if one con?nes a search
21- to the relatively short time period since 1980, it is not di?cult to ?nd various
22 examples of heads of state who have been subject to the possibility of criminal
23 . prosecution (what we call ?indictment? in this country) in a wide variety of
24 countries.?
25
26 Other countries are governed by their own Constitutions, and the fact that
27 their chief executives (like their other citizens) are subject to the criminal law does
28 not, of course, mean that the chief executive of?cer of the United States is subject to
29 its federal criminal laws. Each of these instances is, in a sense, unique and one can
30 therefore distinguish them from the present circumstance.
3 1
32 Consequently, I do not rely on the examples discussed below in reaching the
33 conclusions of the opinion letter. I simply present these examples as suggesting that
34 the claim that the chief executive of?cer of the United States is immune from
35 criminal prosecution and above the law as long as he holds the chief executive of?ce
36 is a claim that other countries (at least those who are not governed by a dictatorship)
37 would ?nd curious if not peculiar.
38
39 In VENEZUELA, in 1993, President Carlos Andres Perez was ordered to stand trial on

 

2? In this case, I used a computerized search of for the period since 1980.

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13

1 embezzlement charges. Perez has the dubious distinction of being the ?rst incumbent
2 Venezuelan president charged with a crime since the country shed a military dictatorship and
3 became a democracy in 1958. The provisional government of Octavio Lepage was sworn
4 in to replace Mr. Perez.?5

5 In PAKISTAN, in 1997, Prime Minister Nawaz Sharif was charged with contempt of court

6 after criticizing the judiciary, which is a crime in Pakistan. Sharif pleaded innocent. A

7 conviction could lead to his removal from of?ce.?5 The fact that he held the of?ce of Prime

8 Minister did not irnmunize him from the rule of law.

9 In ITALY, prosecutors requested the indictment of Prime Minister Romano Prodi on charges
10 of corrupt management of the country?s state industries. The charges arose from the transfer
11 of a food production company from state to private hands in 1993. Prodi was accused of
12 ?xing the sale of a large package of shares in the company by offering it to a politically
13 well-connected private concern at a cut-price rate. The fact that he was Prime Minister did
14- - not irnrnunize him ?om the rule of law. A preliminary magistrate was in charge of deciding
15 whether to order Prodi to stand trial."

16 In CANADA, Prime Minister Jean Chretien was charged with assault for manhandling a
17 protester. His of?ce of Prime Minister did not immunize him from the rule of law. Of
18 course, the fact that he could be charged does not mean that he would be convicted, and, in
19 fact, the charges were quashed. This was the ?rst time this century that a sitting Canadian
20 prime minister faced criminal assault charges. Kenneth Russell, brought the charge against
21 the prime minister for grabbing a demonstrator by the throat during a Flag Day ceremony.28
22 In FRANCE, traders said that ?one of the major reasons for the enactment of emergency
23 money market measures has been removed with Wednesday?s decision not to pursue
24 criminal charges against the Prime Minister for illegally acquiring cheap apartments for
25 himself and his son.? However, if the evidence warranted, Prime Minister Alain Juppe
26 would not be immunized frcim the rule of law and could have been prosecuted.29

27 In ISRAEL, in 1995, Shekem workers asked Attomey General Michael Ben-Yair to open a

 

2? Venezuela Ponders Next Move as President Ordered to Stand Trial, ATLANTA

JOURNAL CONSTITUTION, May 23, 1993, A 10, available in 1993 WESTLAW 3364034.

2? Sharif Warns Crisis Taking Pakistan Near Destruction, DOW JONES NEWS
SERV., Nov. 19, 1997. Raymond Bonner, Pakistan?s Army May Settle Political Feud, NY.
TIMES, Dec. 1, 1997, at A4.

27 Italian PM Faces Accusations, VANCOUVER SUN, Nov. 26, 1996, A7, available in
1996 WestLaw 5031681; Andrew Gumbel, Prosecutors Turn Sights on Italian PM, THE INDEP.
(London), Nov. 26, 1996, at 15, International Section.

28 Gary Borg, Chretien is Charged Brie?y with Assault, CHI. TRIB., May 7, 1996.
at A10, available in 1996 WESTLAW 2669290.

29

Capital Markets Report, Oct. 12, 1995; Reuters World Service, Oct. 11, 1995.
NW: 16018 DocId: 70102162 Page 13

 

 



14

criminal investigation against Prime Minister Yitzhak Rabin for allegedly violating sub
judice laws. Rabin charged that ?Shekem?s ?red workers are parasites.? Israel?s laws forbid
publishing information on an issue negotiated in court if it could in?uence the court?s
ruling.30 Rabin?s of?ce of Prime Minister did not serve to immunize him from the rule of
law.

In JAPAN, prosecutors ultimately refused to press charges against Prime Minister Noboru
Takeshita or any other major political leader being investigated for criminal activity in
connection with an in?uence-peddling scandal. Former prime minister Yasuhiro Nakasone
and at least three cabinet members in Takeshita?s governmentalso escaped indictment. The
scandal, however, forced Takeshita to announce on April 25, 1989, that he would resign.31
Once again, the Prime Minister was subject to the rule of law, and if the evidence had
warranted could have been criminally prosecuted.

In PAPUA NEW GUINEA, a judge recommended that Prime Minister Bill Skate face criminal
charges if evidence that he failed to stop a mutiny was con?rmed.32 The fact that he was
Prime Minister did not immunize him from the rule of law.

In SLOVAKIA, in 1996, President Michael Kovac ?led criminal slander charges against
Prime Minister Vladimir Meciar.? The fact that Meciar held the of?ce of Prime Minister

 

3? Galit Lipkis Beck, Shekem Workers: Investigate Rabin, JERUSALEM POST, Feb.

- 21, 1995, A8, available in 1995 7552690;'Galit Lipkis Beck, Shekem Workers Protest

Robin?s Insults, JERUSALEM POST, Feb. 24, 1995, at p. 15, in Economics Section.

In another instance, ISRAEL, the Prime Minister, Benjamin Netanyahu, faced a
parliamentary no con?dence vote after an inquiry found ?insuf?cient evidence to link him to
an alleged plot to subvert the investigation of a right-wing coalition ally on corruption charges
by appointing a loyal but unquali?ed attorney general, Mr. Roni Bar On." Julian Berger,
Confidence Vote Can Only Be Bad News for Netanyahu, IRISH TIMES, Jun. 24, 1997, A10,
available in 1997 12011461; Anton La Guardia, Netanyahu Vows to Battle on After
Escaping Charges, DAILY TELEGRAPH, Apr. 21, 1997, at 13, International Section. If the
inquiry had found suf?cient evidence, he would have been subject to indictment. His of?ce of
Prime Minister did not immunize him from the rule of law

3? Probe Ends, Japan?s PM Not Charged in Scandal, MONTREAL GAZETTE, May 30,
1989, B6, available in 1989 WESTLAW 5664899; Steven R. Weisman, Japanese Prosecutors End
Scandal Inquiry Without Indicting Major Figures, NY. TIMES, May 30, 1989, at A3.

32 Papua New Guinea?s PM Could Face Criminal Charges in Mutiny, DOW JONES
NEWS SERV., Dec. 15, 1997. Around the World, SEATTLE TIMES, Dec. 15, 1997.

33

SERV., May30, 1996

NW: 16018 Docld: 70102162 Page 14

Slovakia President Files Charges Against Prime Minister, DOW JONES NEWS 

 

15

1 did not serve to immunize him from the rule of law.?
2
3 These examples should not be surprising. As Chief Justice Marshall stated
4 nearly two centuries ago, in Marbury 0. Madison,35 the case that has become the
5 fountainhead of American constitutional law: ?The government of the United States
6 has emphatically termed a government of laws, and not of men.?36 And, he added, ?In
7 Great Britain the king himself is sued in the respectful form of a petition, and he
8 never fails to Comply with the judgment of his court."37
9

10 Let us now turn speci?cally to American law The ?rst item to consider is the

11 language and structure of our Constitution.

12

13 THE STRUCTURE AND LANGUAGE OF THE UNITED STATES CONSTITUTION.

14 

15 Chief Justice Marshall explained that the Constitution ?assigns to different

 

3? Cf. THAILAND, in 1992, where Prime Minister Suchinda Kraprayoon resigned
after ?accepting responsibility for the deaths of at least 40 people and the wounding of more
than 600 when army troops opened ?re on unarmed pro-democracy demonstrators.?
Demonstrators demanded that trials be held for Suchinda and top military of?cers who were
responsible for ordering troops to ?re on unarmed demonstrators. A decree granted the Prime
Minister amnesty from criminal charges arising from the repression of the protests. If there
were no decree, the Prime Minister would be subject to the rule of law, and the fact that he
was Prime Minister would not serve to immunize him. Even after the pardon, an effort was
under way to have the amnesty decree declared illegal by a constitutional tribunal. Charles
P. Wallace, Long-Awaited Constitutional Reforms Made in Thailand, COURIER-JOURNAL
(Lomsville, Ky), May 26, 1992, A3, available in 1992 7837659; William Branigin,
Amnesty Opposition Building in Thailand, HOUSTON CHRONICLE, May 25, 1992, A24.

Also in THAILAND, in 1996, criminal fraud charges were leveled against Prime Minister
Banharn Silpa-archa. His of?ce of Prime Minister did not immunize him from the rule of law.
The Bangkok Post said that ?the charges involved allegations about the sale of land by Mr.
Banharn's daughter, Ms. Kanchana, to the state and the diversion of a seven-billion-baht
($393-million) fund from the environment to the Interior Ministry, which Mr. Banharn heads
as minister.? Banharn Faces Criminal Charges: Opposition, STRAITS TIMES (Sing), Sept. 4,
1996, available in 1996 WESTLAW 11723429; PM Faces Criminal Charges: Move to Show
Banharn?s Zero Credibility, THE BANGKOK POST, June 3, 1997Cranch) 137, 2 60 (1803).
36 5 US. (1 Cranch) at 163.
37 5 US. (1 Cranch) at 163. Cf. Ronald D. Rotunda, Presidents and Eat-Presidents 

as Witnesses: A Brief Historical Footnote, 1975 U. OF ILL. L. FORUM 1 (1975), cited, e.g. in
Clinton 0. Jones, U.S. 117 1636, 137 L'.Ed.2d 945 (1997).

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16

1 departments their respective powers.?38 So that 

2

3 ?those limits may not be mistaken or forgotten, the constitution is

4 written. To what purpose are powers limited, and to what purpose is

5 that limitation committed to writing; if these limits may, at any time, be

6 passed by those intended to be restrained? The distinction between a

7 government with limited and unlimited powers is abolished, if those

8 limits do not con?ne the persons on whom they are imposed, and if acts

9 prohibited and acts allowed are of equal obligation.?39
10
11 Because we live under a written constitution, and the Constitution was written
12 so that we would be governed by the written words, it is useful to look at what that
13 writing says about immunities from prosecution Let us look at the language of the
14 Constitution.
15
16 Our written Constitution has two speci?c sections that refer to what may be
17 categorized as some type of ?immunity? from the ordinary reach of the laws.
18
19 THE PRIVILEGE FROM ARREST.
20
21 First, Senators and Representatives are ?privileged from Arrest during their
22 Attendance at the Session of their respective Houses, and in going to and returning
23 from the same . . except in cases of ?Treason, Felony and Breach of the Peace . . 
24
25 This section illustrates several important factors. First, the Framers of our .
26 Constitution thought about immunity, and when they did, they gave a limited immunity to
27 the Senators and Representatives. No similar clause applies to any member of the Executive
28 Branch nor any member of the Judicial Branch. Second, the immunity-granted is really quite
29 narrow. It only applies during a legislative session. Moreover, it is limited to arrest in civil
30 cases, an obsolete form of arrest that no longer exists.41
3 1
32 The Privilege from Arrest Clause does not apply at all to criminal cases. It
33 does not protect the Senator or Representative from service of process in a criminal

 

33 5 US. (1 Cranch) at 176.
3? 5 US. (1 Cranch) at 176-77.

U.S. CONST., ART. 1, 6, cl. 1.

See discussion in, 1 RONALD D. ROTUNDA JOHN E. NOWAK, TREATISE ON
CONSTITUTIONAL LAW 8.9, ?Privilege from Arrest" (West Pub. Co., 2d ed. 1992). See also, 

Williamson U. United States, 207 US. 425, 435-46, 28 163, 166, 52 278 (1908).
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NW:

17

case.42 It does not even protect the Senator or Representative from service of process
in a civil case.??3 In other words, this clause immunizes a Senator or Representative
against a procedure that no longer exists arrest in a civil case.

As Justice Brandeis, speaking for the Supreme Court, has warned us, this
narrow privilege should be narrowly construed:

?Clause 1 [the privilege from arrest clause] de?nes the extent of the
immunity. Its language is exact and leaves no room for a construction
which would extend the privilege beyond the terms of the grant??

THE SPEECH OR DEBATE CLAUSE.

The same clause of the Constitution contains the only other reference to a
privilege or immunity from the criminal law. It provides that, ?for any Speech or
Debate in either House, they shall not be questioned in any other Place.?45

The Supreme Court has interpreted this ?Speech or Debate" Clause, like the
Privilege from Arrest Clause, quite narrowly. For example, if the Executive Branch
seeks to prosecute a Member of Congress for taking a bribe to vote a certain way, the
prosecution cannot introduce into the trial the vote of the Representative, but the
prosecution can introduce into evidence the ?[p]romises by a Member to perform an
act in the future," because ?a promise to introduce a bill is not a legislative act.?46 In
other words, Members of Congress can be criminally prosecuted for taking a bribe to
introduce legislation into Congress, notwithstanding the supposed protections of the
Speech or Debate Clause.

In addition, the Speech or Debate Privilege, like the Arrest Privilege, only
applies to the legislative branch, not the executive branch. The Constitutional
language makes that quite clear. The existence of these two privileges and the
absence of any similarly clear language creating any sort of Presidential privilege is

 

?2 United States 0. Cooper, 25 Fed. Cases 626, (4 Dell.) 341, 1 859 
1800).

?3 Long 12. Ansell, 293 U.208 (1934).
?4 Long 0. Ansell, 293 U.208 (1934).
?5 U.S. CONST. ART. 1, 6, cl. 1.

?6 United States U. Helstoski, 442 U.S. 477, 489-90, 99 2432, 2439-40, 61 
L.Ed.2d 12 (1979)(emphasis in original).

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signi?cant. If the Framers of our Constitution had wanted to create some
constitutional privilege to shield the President or any other member of the Executive
Branch from criminal indictment (or to prevent certain of?cials from being indicted
before they were impeached), they could have drafted such a privilege. They
certainly know how to draft immunity language, for they drafted a very limited
immunity for the federal legislature.

Yet, even in the case of federal legislators, the Constitution gives no immunity
from indictment. As then Solicitor General Robert Bork concluded, in rejecting the
argument that the United States could not indict a sitting Vice President:

?The Constitution provides no explicit immunity from
criminal sanctions for any civil of?cer. The only express
immunity in the entire document is found in Article I, Section 6,
which provides [here he quotes the ?arrest clause?].

?Since the Framers knew how to, and did, spell out an
immunity, the natural inference is that no immunity exists where
. none is mentioned. Indeed, any other reading would turn the
constitutional text on its head: the construction advanced by
counsel for the Vice President requires that the explicit grant of
immunity to leg?slators be read as in fact a partial withdrawal of
a complete immunity legislators would otherwise have possessed
in common with other government of?cers. The intent of the
Framers was to the contrary.?47

THE IMPEACHMENT CLAUSE.

The Language. There is only one impeachment clause in the Constitution.
It does not purport to distinguish the impeachment of a federal judge from the Vice
President, nor does it distinguish the impeachment of the Vice President from the
President. The clause provides:

?Judgment in Cases of Impeachment shall not extend further
than to removal from Of?ce, and disquali?cation to. hold and
enjoy any Of?ce of honor, Trust, or Pro?t under the United
States: but the Party convicted shall nevertheless be liable and

 

47

In re Proceedings of the Grand Jury Impaneled December 5, 1972, Application
of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965,
Memorandum for the United States Concerning the Vice President?s Claim of Constitutional 
Immunity, Oct. 5, 1973, at p. 5.

16018 Docld: 70102162 Page 18

 

 

19

1 subject to Indictment, Trial, Judgment, and Punishment,

2 according to Law.?48

3 .

4 This clause indicates that Congress should not be entrusted with the power to

5 impose any penalty on an impeached o?cial other than (or no greater than) removal

6 from o?ice and disquali?cation from further of?ce. Criminal penalties would be left

7 to the judiciary. In addition, the clause makes clear that double jeopardy would not

8 bar a criminal prosecution. The clause does not state that criminal prosecution must

9 come after an impeachment, nor does it state that the refusal of the House to impeach
10 (or the Senate to remove from of?ce) would bar a subsequent criminal prosecution.
11
12 The Commentators and the Case Law. The available historical evidence
13 as .to the meaning of this clause is sparse. One can ?nd various historical references
14 that assume that impeachment would precede indictment, but these references, as
15 Professor John Hart Ely concluded, ?did not argue that the Constitution required that
16 order.?49 Professor Ely, at the time, was a consultant to Archibald Cox, then the
17 Watergate Special Prosecutor, when he made these comments and concluded that the
18 Constitution does not require that impeachment and removal precede a criminal
l9 indictment, even of the President. In 1996, in the midst of the Whitewater
20 investigation, he reaf?rmed his analysis.?50
21- 
22 Judge Robert Bork agrees with Professor Ely, his former colleague at the Yale
23 Law School. While Solicitor General, Judge Bork concluded, when ?the Constitution
24 provides that the ?Party convicted? is nonetheless subject to criminal punishment,? .
25 that language does ?not establish the sequence of the two processes, but [exists] solely
26 to establish that conviction upon impeachment does not raise a double jeopardy
27 defense in a criminal trial.?51

 

48

US. Const., art. I. 3, cl. 7. Clause 6 provides that if the President is subject
to impeachment, the Chief Justice of the United States shall preside. The framers evidently
thought that the person who normally presides over the Senate the Vice President of the
United States] should not preside in the case of a Presidential impeachment because he would
be in a con?ict of interest.

?9 JOHN HART ELY, ON GROUND 138 (Princeton University Press
1996) (emphasis added). 

50

Press 1996).

JOHN HART ELY, ON CONSTITUTIONAL GROUND 138-39 (Princeton University

61

In re Proceedings of the Grand Jury I mpaneled December 5, 1972, Application 
of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965,


NW: 16018 701021162 Page 19

 

 

20

1 Of course, impeachment by the House and conviction by the Senate is the only
2 constitutional way to remove the President or Vice President or federal judges from 
3 of?ce. A criminal conviction in an Article 111 federal court of a federal of?cial does not
4 remove this o?icial from of?ce, even if the criminal act would also constitute ?high
5 crimes or misdemeanors.?
6
7 The debates surrounding the drafting of the Constitution are ?rife with
8 assertions that the president is not a monarch above the law. and so the argument
9 must proceed along the line that the president must be impeached before he can be
10 criminally prosecuted.?52 Let us consider some of these historical sources.
1 1
12 For example, in one of the FEDERALIST PAPERS, Alexander Hamilton says, ?The
13 punishment which may be the consequence of conviction upon impeachment, is not
14 to terminate the chastisement of the offender."53 Another FEDERALIST PAPER (also
15 penned by Hamilton) states the President can be impeached for ?treason, bribery, or
16 other high crimes or misdemeanors, removed from of?ce; and would afterwards be
17 liable to prosecution and punishment in the ordinary course of law.?54 Perhaps this
18 language only means that if the President is being charged with actions that are
19 peculiarly and uniquely contrary to Presidential responsibility (like treason
20 committed awhile President, or acceptance of bribes while President), then
21. impeachment must precede indictment. But that interpretation would mean that
22 other crimes (assault and battery, witness tampering, obstruction of justice, perjury,
23 suborning-perjury in a civil case, etc.) can be prosecuted prior to impeachment and
24 removal from of?ce.
25
26 Against this sparse language (which nowhere asserts that impeachment and

 

5? (.. .continued)

Memorandum for the United States Concerning the Vice President?s Claim of Constitutional
Immunity, Oct. 5, 1973, at p. 10 (emphasis added). Solicitor General Bork, in this
Memorandum ,by way of dictum, also concluded, based on the case law that existed at the
time, that the President was immune from criminal prosecution prior to indictment.

?2 JOHN HART ELY, ON CONSTITUTIONAL GROUND 138 (Princeton University Press
1996).

53 THE FEDERALIST PAPERS, No. 65, 8th paragraph (Alexander Hamilton). In No.
69.

5" THE PAPERS, No. 69, 4th paragraph (Alexander Hamilton).

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21

1 removal must precede criminal indictment in all cases)55 is other speci?c historical
2 language that goes the other way and indicates that the Framers of our Constitution
3 concluded that, unlike federal legislators, no special constitutional immunity should
4 attach to the President.?5
5
6 Consider, for example, the remarks of James Wilson, in the course of the
7 debates on the Constitution- He said: ?far from being above the laws,
8 he [the President] is amenable to them in his private character as a citizen, and in
9 his public character by impeachment.?57 That quotation implies that the President
10 can be criminally prosecuted like any other citizen, without regard to impeachment.
11 Similarly, Iredell, in the course of the North Carolina debates on the Constitution,
12 said: ?If he [the President] commits any misdemeanor in of?ce, he is impeachable .
13 . If he commits any crime, he is punishable by the laws of his country, and in
14 capital cases may be deprived of his life.?8
15
16 Wilson was hardly a solitary voice. Charles Pinckney, a contemporary
17 observer, also stated:
18
19 ?Let us inquire, why the Constitution should have been so
20 attentive to each branch of Congress, so jealous of their 
21 Congressional] privileges [Pinckney had just referred to the
22 Congressional privilege from arrest, discussed above], and have
23 shewn so little to the President of the United States in this
24 respect. . . . No privilege of this kind was intended for your

 

55

Professor John Hart Ely, who examined the historical references for Watergate
Special Prosecutor Archibald Cox, also concluded that the historical references do not require
that impeachment and removal precede a criminal indictment, even of the President. JOHN
HART ELY, ON CONSTITUTIONAL GROUND 139 (Princeton University Press 1996).

5? See, MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787,
at p. 1066 (191 l)(comments of Charles Pinckney); 10 ANNALS OF CONGRESS 71 (l800)(Senator
Pinckney, stating that ?our Constitution supposes infallible, but considers
them all as mere men, and subject to all the passions, and frailties, and crimes, that men
generally are, and accordingly provides for the trial of such as ought to be tried . . Eric M.
Freedman, Achieving Political Adulthood, 2 NEXUS 67, 68 (Spring, 1997), also discussing
account of Charles Pinckney, a delegate to the Constitutional Convention.

57 2 DEBATES 480, quoted in WATERCATE SPECIAL PROSECUTION FORCE,
Memorandum of Dec. 26, 1973, from Richard Weinberg to Philip Lacovara, at 7-8.

?3 4 DEBATES 109, quoted in WATERGATE SPECIAL PROSECUTION FORCE, 
Memorandum of Dec. 26, 1973, from Richard Weinberg to Philip Lacovara, at 8 H7

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22

Executive, nor any except that which I have mentioned for your
Legislature. The Convention which formed the Constitution well
knew that this was an important point, and no subject had been
more abused than privilege. They therefore determined so set the
example, in merely limiting privilege to what was necessary, and

no more.??59

Tench Coxe, in his Essays on the Constitution, published in the Independent
Gazetteer in September, 17 87, agreed. He concluded, in discussing the President:

?His person is not so much protected as that of a member of
the House of Representatives; for he may be proceeded against like
any other man in the ordinary course of law.? (emphasis in
original . 6? 

When those who argue that the President is immune from the criminal law
until after he has been impeached look to the historical sources, the very most that
they could draw from the historical debates in support of their view is that there
certainly was no agreement to create any Presidential immunity from criminal
indictment (either absolute or temporary), for the easiest way to create it (temporary
or otherwise) would have been to add a clause to the Constitution de?ning its
existence and extent. In fact, the contemporary sources suggest that the Constitution
provides no criminal immunity for any President who commits crimes in his personal
capacity.

This analysis should not be surprising; it is the same conclusion reached in
Nixon v. Sirica,?l where the Court after examining the Constitutional debates and
the views of the Framers of our Constitution said:

 

?9 10 ANNUALS OF CONGRESS 74 (1800). Also quoted in, 3 MAX FARRAND, THE
RECORDS OF THE FEDERAL CONVENTION OF 1787, at 385, also cited in JOHN HART ELY, ON
CONSTITUTIONAL GROUND 415 (Princeton University Press 1996).

5? Quoted in, 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION 141 (1976), quoted with approval in Nixon v. Sirica, 487 F.2d 700, (DC. Cir.

1973)(per curiam)(en banc).

6? Nixon u. Sirica, 487 F.2d 700 (DC. Cir. 1973)(per curiam)(en bane). President
Nixon chose not to appeal this ruling.

Samuel Dash (also a Special consultant to the Of?ce of Independent Counsel) and I were .
two of the attorneys who ?led a brief in this case on behalf Of the Senate Watergate
Committee.

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23

1 ?The Constitution makes no mention of special presidential

2 immunities. Indeed, the Executive Branch generally is afforded

3 none. This silence cannot be ascribed to oversight.?62

4

5. Later, this same Court said:

6

7 ?Lacking textual support, counsel for the President nonetheless

8 would have us infer immunity from the President?s political

9 mandate, or from his vulnerability to impeachment, or from his
10 broad discretionary powers. These are invitations to refashion the
11 Constitution and we reject them.?63
12
13 Professor John Hart Ely a distinguished Constitutional scholar, a former
14 chaired Professor of Constitutional Law as Harvard Law School, a former chaired
15 Professor and the Dean of Stanford Law School, a special consultant to Watergate
16 Prosecutor Archibald Cox, and now a chaired Professor at the University of Miami
17 School of Law concluded, after analyzing the debates at the Constitutional
18 Convention, that it would be ?misleading? to argue that there was a special
19 Presidential immunity from criminal indictment or prosecution until the President
20 was ?rst impeached. He concluded that ?there was no immunity contemplated by the
21 .. framers or if they contemplated it they didn?t say so . . As Professor Ely went
22 on to explain:
23

 

?2 Nixon v. Sirica, 487 F.2d 700, 710-11 (DC. Cir. 1973)(per curiam)(en banc):

?Thus, to ?nd the President immune from judicial process, we
must read out of [United States Burr, [25 Fed. Cases p. 30 (Case No.
14,6962d) (1807)] and Youngstown [Sheet Tube 0. Sawyer, 343 US.
579, 72 863 (1952)], the underlying principles that the eminent
jurists in each case thought they were establishing. The Constitution
makes no mention of special presidential immunities. Indeed, the
Executive Branch generally is afforded none. This silence cannot be
ascribed to oversight. James Madison raised the question of Executive
privilege during the Constitutional Convention, and Senators and
Representatives enjoy an express, if limited, immunity from arrest, and
an express privilege from inquiry concerning ?Speech and Debate? on the
?oors of Congress.?

[footnotes omitted; emphasis added]

63 487 F.2d at 711 [emphasis added].

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24

1 ?To the extent that they [the Constitutional debates] suggest
2 anything on the subject, the debates suggest that the immunities
3 the Constitution explicitly granted members of Congress (which
4 do not, incidentally, include this sort of immunity [from criminal
prosecutionD were not intended for anyone else. The argument
6 for presidential immunity from indictment is one that must be
7 based on necessity and perhaps, but only perhaps, the
8 presidency and vice presidency are distinguished on that score 
9 but not on- anything the framers said either in the Constitution
10 itself or during the debates??
1 1
12 Consider also some remarks that Joseph Story made in his COMMENTARIES ON
13 THE CONSTITUTION:
14
15 ?There are other incidental powers, belonging to the
16 executive department, which are necessarily implied from the
17 nature of the functions, which are con?ded to it. Among these
18 must necessarily be included the power to perform them, without
19 any obstruction or impediment whatsoever. The president
20 cannot, therefore, be liable to arrest, imprisonment, or detention,
21 while he is in the discharge of the duties of his of?ce; and for this
22 purpose his person must be deemed, in civil cases at least, to
23 possess an of?cial inviolability. In the exercise of his political
24 powers he is to use his own discretion .. .. But he has no
25 authority to control other of?cers of the government, in relation
26 to the duties imposed on them by law, in cases not touching his
27 political powers.?65
28
29 Some people focus on the phrase: ?The president cannot, therefore, be liable to arrest,
30 imprisonment, or detention . . However, they forget to read the rest of the
31 sentence, which gives him this immunity only when pursuing his of?cial duties:
32 ?while he is in the discharge of the duties of his of?ce . . Obstruction of justice,
33 witness tampering, destruction of documents, accepting pay-offs none of this is
34 part of the President?s of?cial duties. In fact, as Justice Story states, the President:
35 ?has no authority to control other officers of the government, in relation to the duties

 

5? JOHN HART ELY, ON CONSTITUTIONAL GROUND 141 (Princeton University Press

1996) (emphasis added).

?5 JOSEPH STORY, COWIENTARIES ON THE CONSTITUTION, 814, at p. 579 (RONALD

D. ROTUNDA JOHN E. NOWAK, eds., Carolina Academic Press, 1987, originally published,
1833); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION, 1563, at 418-19 (1833 

NW: 16018 Docld: 70102162 Page 24

 

 

 

25

imposed on them by law, in cases not touching his political powers.?

2

3 Justice Story explained that these ?other of?cers of the government? judges,

4 federal prOsecutors, the Independent Counsel are supposed to do their jobs, to

perform the duties imposed on them by law. The duties imposed on the Independent

6 Counsel are duties imposed by the Independent Counsel statute and by the decision

7 of Attorney General Janet Reno to petition the court to appoint an Independent

8 Counsel. The statute provides that Independent Counsel must, in general, comply

9 with the regulations of the Department of Justice?? If President Clinton?s alleged
10 criminal acts would be criminally prosecuted by the Department of Justice if a
11 Cabinet Of?cer or Senator or Representative committed those crimes, and if the
12 alleged crimes are serious enough and the evidence of criminality is substantial so
13 that a federal prosecutor believes that he or she would secure a conviction beyond a
14 reasOnable doubt by a fair-minded jury, then the Independent Counsel, following his
15 statutory duty, should allow the Grand Jury to indict.
16
17 The prosecution in this case does to relate to any political dispute between
18 Congress and the President. It does not relate to claims that the President-should,
19 or should not have, exercised political discretion in a particular way. There is no
20 issue as to whether the President should have deployed a new Air Force bomber, or
21. whether the President should not have sent troops to Bosnia. The issues in this case
22 do not relate to the President?s of?cial duties. In fact, some of the issues occurred
23 before he became President, and all of the issues (obstruction, conspiracy, witness
24 tampering, etc.) have nothing to do with the President?s of?cial duties to take care
25 that the law be faithfully executed.?
26
27 The language that I have quoted from Justice Story is often quoted in the
28 relevant case law. The courts have placed the same interpretation on that language
29 that I have. In Nixon v. Fitzgerald,68 for example, the Court quoted this language
30 from Justice Story69 and held that the President had no immunity from civil damages
31 for matters that were outside the outer perimeter of his of?cial duties. In fact, in that

 

?5 CITE

?7 The facts here are not like the situation in Morrison 0. Olson, where a criminal

prosecution of a high-level political appointee of the President arouse out of ?a bitter power
dispute between the President and the Legislative Branch . . 487 US. 654, 703, 1087 
2597, 2625, 101 L.Ed.2d 569 (1988)(Scalia, J., dissenting).

?8 457 US. 731, 102 2690, 73 L.Ed.2d 349 (1982).

6? 457 US. at 749, 102 at 2701.
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OOxlmm-?hU-lNH

26

case, Justices White, Brennan, Marshall, and Blackmun said explicitly that ?there
is no contention that the President is immune from criminal prosecution in the courts
under the criminal laws . . . [n]or would such a claim be credible. . . . Similarly. our
cases indicate that immunity from civil damage actions carries no protection from
criminal prosecution.?70 By the way, Vice President Gore, while a U.S.
Representative, agreed with the dissent in this case and argued that the President
should not even be immune from civil damage suits for acts does in his of?cial


The majority opinion in Fitzgerald did not dispute this conclusion that the
President is subject to criminal indictment. On the contrary, the majority appeared
to agree with the dissent on this point. Justice Powell, joined by Justices Rehnquist,
Stevens, O?Connor Chief Justice Burger, responded that absolute immunity from
civil damages ??does not leave the public powerless to deter misconduct or to punish
that which occurs.?72 This is so because the judge or prosecutor who, like the
President is absolutely immune from a civil damage lawsuit brought by a private
litigant in certain cases can still be criminally prosecuted.?

Clinton v. Jones? also quotes this same passage from Justice Story. Justice
Stevens, for the Court, italicizes part of this quotation. The President 

?cannot, therefore be liable to arrest, imprisonment, or detention,
while he is in the discharge of the duties of his of?ce; and for this
purpose his person must be deemed, in civil cases at least, to
possess an of?cial inviolability.? (emphasis in original).75

The Court went on to say: ?Story said only that ?an of?cial inviolability,?

 

7? 457 U.S. at 780, 102 at 2717 (dissenting opinion).

7? See discussion in, Ronald D. Rotunda, Paula Jones Day in Court, 17 LEGAL

TIMES (OF WASHINGTON, DC.) 24, 27 (May 30, 1994), reprinted, 10 TEXAS LAWYER 24, 27
(June 13, 1994), referring to Amicus Brief that Representative Gore joined.

7" 457 U.S. at 757 n.38, 102 at 2705 n. 38, quoting Imbler u. Pachtman, 424
U.S. at 428?29, 96 at 994.

73 457 U.S. at 757 n.38, 102 at 2705 n. 38, quoting Imbler v. Pachtman, 424
U.S. at 428-29, 96 at 994.

74 U.S. 117 1636, 137 L.Ed.2d 945 (1997).

75 U.S. at n. 23; 117 at 1645 n. 23 (emphasis in original).

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mummawNH

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2'7

[emphasis by the Court] was necessary to preserve the President?s ability to perform

the functions of his of?ce; he did not specify the dimensions of the necessary

immunity.?76 Once again the Court made clear that there is no need to give the
President absolute immunity from criminal prosecution when he is charged with
offenses that do not relate to the discharge of the duties of his of?ce because criminal
activities are not in the discharge of the President?s of?cial duties.

As the Court explicitly stated: ?With respect to acts taken in his ?public
character? that is of?cial acts the President may be disciplined principally by
impeachment, not by private lawsuits for damages. But he is otherwise subject to the
laws for his purely private acts.? For private acts, acts taken in his private capacity,
the President is ?otherwise subject to the laws.? That has to mean ?all? of the laws,
including the criminal laws. If a President suborns perjury, tampers with witnesses,
destroys documents, he is not acting in his of?cial capacity as President. The fact
that some of these acts occurred prior to the time he became President does not
bolster his claim of immunity from the criminal laws.

Ifthe President is indicted for acts that occurred prior to the time he became
President and for acts that were not taken as part of his o?icial constitutional duties,
then, as Clinton v. Jones states: ?the fact that a federal court?s exercise of its tradition 
Article jurisdiction may signi?cantly burden the time and attention of the Chief
Executive is not suf?cient to establish a violation of the Constitution?" The Court
added:

?it must follow that the federal courts have power to determine
the legality of his [the President?s] unof?cial conduct?"

If a President were indicted for acts not taken in his of?cial capacity as
President, a federal court would only be exercising its traditional Article 
jurisdiction. Article courts have the power to determine the legality of the
President?s unof?cial conduct, even though the exercise of that traditional jurisdiction
may signi?cantly burden the time and attention of the Chief Executive.

If public policy and the Constitution allow a private litigant to sue a sitting

 

7? Id.

77 US. .at 117 1645 (emphasis added).
78 US. at 117 at 1648-49.

79 US. at 117 at 1650.

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o?Ir?Ii?In?In?tr?A'p?A


28

President for alleged acts that are not part of the President?s of?cial duties (and are
outside the outer perimeter of those duties) and that is what Clinton v. Jones
squarely held then one would think that an indictment is constitutional because
the public interest in criminal cases is greater than the public interest in civil cases.30

IMPLIED 

Although the Constitution, by its own terms, does not create a privilege, that
does not end the discussion, because the Supreme Court may create a common law
privilege or derive such a privilege from its earlier precedent. Let us now consider
this issue.

EXECUTIVE PRIVILEGE. First, one should look at the role that Executive
Privilege has played in the case law. The President, over the course of two centuries,
has sometimes raised a claim of Executive Privilege when Congress demands certain
information. But that was not the fact pattern involved in United States v. Nixon?l

 

80

Nixon v. Fitzgerald, the Supreme Court held that the President was absolutely
immune for civil damages involving actions taken within his of?cial duties, but also
emphasized that this was ?merely a private suit for damages? and that there is ?a lesser public
interest in actions for civil damages than, for example, in criminal prosecutions.? 457 US. 731,
754 n.37, 102 2690, 2703 n.37.

3? 418 US. 683, 94 3090, 41 L.Ed.2d 1039 (1974)."

For a discussion of prior incidences where Presidents provided personal testimony,
under oath, pursuant to subpoena, see, Ronald D. Rotunda, Presidents and Ens?Presidents as
Witnesses: A Brief Historical Footnote, 1975 U. OF ILLINOIS LAW FORUM 1 (1975).

The earlier cases where the President complied with a subpoena in a criminal case
did not reach the US. Supreme Court. See also, 1 RONALD D. ROTUNDA JOHN E. NOWAK,
ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE 7- (West Pub. Co.,
2d ed. 1992)(and corresponding pages in 1998 pocket part).

However, the Supreme Court, prior to United States v. Nixon, did explicitly approve of
United States v. Burr, 25 Federal Cases 30, 34 (No. 1807), the decision that
required President Jefferson to comply with a subpoena issued by an Article court. After
stating that ?the public has a right to every man's evidence? the Court, in Branzberg v. Hayes,
408 US. 665, 92 2646 (1972), added this footnote:

?In United States v. Burr Chief Justice Marshall, sitting on Circuit, opined that
in proper circumstances a subpoena could be issued to the President of the
United States.?



NW: 16018 Docld: 70102162 Page 28

 

29

1 Instead, the question was quite different: whether the President could refuse to
2 disclose information relevant to a federal criminal prosecution brought in an Article
3 court. President Nixon was the ?rst President in history to litigate the use of
4 Executive Privilege in the court system and the US. Supreme Court and to refuse to
5 turn over evidence based on this theory. President Clinton is only the second
6 President in history to raise and'litigate Executive Privilege in an effort to block
7 evidence relevant to a criminal investigation.?
8
9 The main case on this question, United States v. Nixon, recognized a very
10 limited form of an evidentiary privilege in the case where the President pleads
11 Executive Privilege to a subpoena issued under the authority of an Article HI court
12 in connection with a criminal case.?
13
14 While the Supreme Court recognized Executive Privilege in United States v.
15 Nixon it did not apply it to shield the President; it did not allow President Nixon to I
16 assert it in order to prevent disclosure of Presidential tapes regarding con?dential
17 conversations. As Judge Robert Bork recentlyexplained: ?Nixon?s claim, being based
18 only on a generalized interest in con?dentiality was overcome by the need of the

 

3? 

Branzberg v. Hayes. 408 US. at 688 n.26, 92 at 2660 n.26.

3? Thus far, President Clinton has lost on this issue. He raised, and then
abandoned, the Executive Privilege claim in his unsuccessful effort to prevent the Independent
Counsel from subpoenaing notes taken by Government lawyers (various White House counsel)
of conversations with Hillary Clinton. See discussion in, Ronald D. Rotunda, Lips Unlocked:
Attorney Client Privilege and Government Lawyers, LEGAL TIMES (OF WASHINGTON, DC.) 21-
22, 28 (June 30, 1997).

President Clinton also unsuccessfully raised Executive Privilege in an effort to prevent
Bruce Lindsey and Sidney Blumenthal from testifying before the Grand Jury. In re Grand
Jury Proceedings, Misc. Action 98-095, 98-096 98-097 (NHJ), filed under seal, May 4, 1998
(Judge Norma Holloway Johnson).

83 418 US. at 712, n.19, 94 at 3109 n.19:

?We are not here concerned with the balance between the
President?s generalized interest in con?dentiality and the need for
relevant evidence in civil litigation, nor with that between the
con?dentiality interest and the congressional demands for information,
nor with the President?s interest in preserving state secrets. We address
only the con?ict between the President?s assertion of a generalized
privilege of con?dentiality and the constitutional need for relevant
evidence in criminal trials."

NW: 16018 Docld: 70102162 Page 29

 

30

1 courts and parties in a criminal case for relevant evidence.?84 The Court, in short,
2 recognized Executive Privilege and then ordered the President to turn over the
3 evidence. The Court rejected any claim of a general Executive Privilege in criminal
4 proceedings. "If the matter involved military secrets where the missile silos are
5 buried in Montana or diplomatic secrets the contents of a secret cable from the
6 Ambassador to China the courts are likely to recognize a privilege in the
7 appropriate case. But the issues that surrounded President Nixon, and the issues
8 now surrounding President Clinton, do not fall in these categories.
9
10 In addition, the Supreme Court, in its reasoning in United States v. Nixon,
11 relied on the ?necessary and proper? clause of Article I.85 That clause gives Congress
12 the power to expand on other powers to ?make all Laws which shall be necessary
13 and proper for carrying into Execution the foregoing Powers.?86 This power is
14 granted to Congress, not to the President. United States v. Nixon suggests that
15 Congress may well have the power, under the necessary and proper clause, to create,
16 explicitly, some sort of immunity from criminal prosecution for the President 
17 assuming that this immunity (whether temporary or absolute) is not so broad that it
18 violates other provisions of the Constitution.87 But Congress has not done so. It has
19 enacted no statute giving any sort of immunity from the criminal laws to the
20 President.
21

 

8" Robert H. Bork, Indict Clinton?-? How I Wish It Were Possible, WALL STREET 
JOURNAL, March 18, 1998, at A22, col. 3 (Midwest 

8? 418 U.S. zit-706 n.16. 94 at 3106 n.16, citing McCuttoch 0. Maryland, 17
U.S. (4 Wheat.) 316, 4 579 (1819).

?5 U.S. CONST. ART. 1, 8, cl. 18.
87 Congress could, if it wished, provide for what is known as ?protective
jurisdiction? so that criminal actions that states bring against federal of?cials must be tried
in federal court rather than state court.

However, it is an open question whether it would be constitutional for Congress to enact

a statute that. either explicitly or in effect, immunizes the President from the application of

federal criminal laws. All of the acts of Congress must comply with the limitations of the Bill

. of Rights. Fer example, could Congress provide that the President is immune from criminal

law if he kills someone, or takes that person?s property by theft or deception, or imprisons that

person? The due process clause of the Fifth Amendment provides that no person shall be

?deprived of life, liberty, or property, without due process of law." If the President (like an

absolute Monarch) has immunity from the criminal law, will we really be a nation of laws and
not of men? Did our predecessors revolt from one king only to install another?

NW: 16018 Docld: 70102162 Page 30

 

 

31'

RELEVANT FEDERAL STATUTE REJECTS CRIMINAL IMMUNITY. N0 federal
2 statutes recognize, or purport to recognize, any Presidential immunity from criminal
3 indictment- Indeed, Congress has done quite the opposite: it has created an
4 Independent Counsel statute for the express purpose of investigating alleged criminal
5 activities of the President. In fact, it enacted this statute with a speci?c background
6 of criminal allegations surrounding this particular President. And this particular
7 President not only signed the law, he and his Attorney General lobbied for the law
8 so that the Special Division of the District of Columbia Circuit could appoint an
9 Independent Counsel to investigate alleged criminal activities of this President.38

10 Attorney General Janet Reno testi?ed that ?President Clinton and the Department

11 of Justice strongly supported reauthorization? of the Independent Counsel Act.89

12

13 The legislative history of the Independent Counsel law nowhere states that the

14 President cannot be indicted, or is above the law or is immune from the criminal law

15 as long as he is a sitting President. The of?cial Legislative History of the Ethics in

16 Government Act of 1978, creating the ?rst independent law, does not suggest that the

17 President is immune from indictment. In fact, it takes pains to reject any such

18 suggestion. The relevant legislative history provides the following:

19

20 ?Subsection simply gives the special prosecutor, who has

21 information which he wants to turn over to the House of

22 Representatives because it involves potentially impeachable offenses

23 against the individuals names in this subsection, the authority to so

24 turn over that information.

25

26 ?This section should in no way be interpreted as identi?ling

27 individuals who are not subject to criminal prosecution prior to being

28 impeached and removed from office. In fact, a number of persons

29 holding the positions identi?ed in this subsection have been subject to

30 criminal prosecution while still holding such an of?ce.?90

3 1 - .

32 THE BORK MEMORANDUM. The distinguished constitutional scholar and then

 

38 See generally, Independent Counsel Reauthorization Act of 1994, Pub. L. 103-
270, 4 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS 809-]. (1994).

89 4 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS, at 753
(1994)(emphasis added).

9? Legislative History of Ethics in Government Act of 1978, PL. 95-521, 92 Stat.
at Large 1824, US. CODE CONGRESSIONAL AND LEGISLATIVE NEWS 41216, 4287-88 (emphasis
added)..

NW: 16018 Docld: 70102162 Page 31

 

 

OOQONUI-P-WNH

NNHI?IHI??h?OF-lv?ll?it?lv?l


32

Solicitor General, Robert Bork, concluded in a Memorandum he ?led in the criminal
prosecution of Vice President Agnew, that the Vice President could be indicted and
tried prior to impeachment but the President, in contrast, would be immune from
criminal prosecution prior to impeachment. Judge Bork relied on several arguments.
One of the most signi?cant was that 

?The Framers could not have contemplated prosecution of an
incumbent President because they vested him complete power
over the execution of the laws, which includes, of course, the
power to control prosecutions.?91

If President Clinton had the complete ?power to control prosecutions? today,
Judge Bork?s analysis would be applicable. But President Clinton made sure that he
does not have the ?complete power? to ?control prosecution.? President Clinton and
Attorney General Reno lobbied for the Independent Counsel Act, and President
Clinton signed it.92 This law places important limitations on the Attorney General?s
power to remove the Independent Counsel. The Independent Counsel can, in brief,
only be removed for cause. President Clinton signed the law and decided to give up
his ?complete power? to ?control prosecution.? Under the statute, the Independent
Counsel can only be removed ?for cause.? The Supreme Court upheld the
constitutionality of limiting the removal power in Morrison 0. Olson.93

Judge Bork?s reasoning implies that the President is subject to indictment if

 

?1 In re Proceedings of the Grand Jury Impaneled December 5, 1972, Application

of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965,
Memorandum for the United States Concerning the Vice President?s Claim of Constitutional
Immunity, Oct. 5, 1973, at p. 20.

?2 The fact that the President has signed this law is relevant in determining
whether this law and its implicit authorization of a grand jury to investigate alleged
criminal acts by President Clinton ?disrupts the proper balance between the coordinate
branches? and ?prevents the Executive Branch from accomplishing its constitutionally assigned
functions.? Nixon 0. Administrator of General Services, 433 US. 425, 97 2777, 53
L.Ed.2d 867 (1977), quoting United States v. Nixon, 418 US. 683, 94 3090, 41 L.Ed.2d
1039 (1974). In deciding that the law was constitutional, Nixon 0. Administrator emphasized:
?The Executive Branch became a party to the Act?s regulation when President Ford signed the
Act into law . . In that casejthe Act was applied against a former President. In this case,
the Executive Branch became a party to the Independent Counsel Act when the present
President President Clinton signed a law that was written to create an Independent
Counsel to investigate that same President President Clinton.

?3 487 US. 654, 108 2597, 101 L.Ed.2d 569 (1988).

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33

he gives up the power to control prosecutions. And that 1s exactly what President
Clinton did.

Judge Bork, in his Memorandum concluding that the Vice President but not
the President can be indicted prior to impeachment, also relied on the TWENTY -
FIFTH AMENDMENT in support of his conclusion.?4 Judge Bork argued that ?the
President is the only of?cer from whose temporary disability the Constitution
provides procedures to qualify a replacement.? From that he concludes: ?This is
recognition that the President is the only of?cer whose temporary disability while in
?of?ce incapacitates an entire branch of government.?

However, the Twenty-Fifth Amendment suggests the opposite conclusion,
eSpecially after the decision 1n Jones v. Clinton. Because of this Amendment, the
temporary disability of the President does not incapacitate an entire branch of
government because the Constitution itself recognizes the problems and deals with
it in a structural way, not by creating an immunity but by providing for a temporary
replacement. In addition, the indictment of the President does not incapacitate either
the President or entire Executive Branch. Aaron Burr was quite able to function as
a Vice President although indicted. Indictment does not incapacitate the indicted
individual.

In the unlikely event that the defense of a civil case Jones v. Clinton) or
the defense of a criminal case would prevent the President from performing his
duties, the Executive Branch does not simply shut down. The Twenty Fifth
Amendment, 3, provides a procedure for the Executive Branch to continue to

function ?[w]henever the President transmits . . . his written declaration that is
unable to discharge the powers and duties of his of?ce . . This procedure is clearly
not limited to cases of illness. 

One should also note that it is easy to make a claim that the Executive Branch
will simply ?shut down,? .but that claim is difficult to accept. President Clinton,
during the pendencyof the Jones case, said repeatedly that the looming civil case was
not affecting his duties as President. Nonetheless, while he was making those
statements, the defense attorneys claimed that a delay was necessary because of the
burdens on the President. The trial judge in Jones 1). Clinton refused to change the
date of the civil trial. When attorneys cry ?wolf? too often, they lose their credibility.
(Subsequently, the trial judge granted summary judgment to the defendant.)

 

9? In re Proceedings of the Grand Jury Impaneled December 5, 1972, Application

of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73- 965,
Memorandum for the United States Concerning the Vice President' 3 Claim of Constitutional
Immunity, Oct. 5, 1973, atp. 18.

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34

1 TEMPORARY IMMUNITY CREATED BY STATUTE. Perhaps Congress could enact
2 a statute creating some sort of temporary immunity, that is, providing that there
3 shall be no trial of a sitting President until after he has ?nished his term of of?ce as
4 President. However, enactment of such a law would raise important constitutional
5 and policy issues.
6 .
7 First, in terms of the Constitution, the Sixth Amendment grants the accused
8 a right to a ?speedy and public trial.? If Congress were to enact a statute that
9 immunizes a sitting President from any criminal indictment as long as he holds
10 of?ce, then the delay in the indictment (and resulting delay in any trial) will run
11 afoul of the speedy trial guarantee. Presumably the President could waive this right,
12 in any particular case. However, if the President could waive this right, then he
13 should be able to waive his other rights. If one of his rights is the right to temporary-
14 immunity, then he should be able to waive that right as well.
15
16 And, if the President has a right to temporary immunity, he appears that he
17 may have waived this right by signing the Independent Counsel Act which was
18 enacted only after this President and his Attorney General? advocated its passage.
19 Janet Reno stated that President Clinton ?strongly supported reauthorization? of this
20 Independent Counsel Act.95 President Clinton lobbied for, and signed,?5 the present
21 Independent Counsel Act, with full knowledge that the Act?s ?rst court-appointed
22 counsel would be speci?cally charged with investigating criminal allegations against
23 President Clinton.
24
25. As President Clinton stated when he signed the law:
26
27 [This law] ensures that no matter what party controls the
28 Congress or the executive branch, an independent, nonpartisan
29 process will be in place to guarantee the integrity of public
30 of?cials and ensure that no one is above the law.?97

 

95 4 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS, at 753
(l994)(emphasis added).

96 In Nixon 0. Administrator of General Services, 433 U.S. 425, 97 2777, 53
L.Ed.2d 867 (1977) the Court found it signi?cant in deciding the case involving the
Presidential Recordings and Materials Preservation Act against former President Nixon 
that the ?Executive Branch became a party to the Act?s regulation when President Ford signed
the Act into law . . 433 U.S. at 426, 97 at 2781. In this case, President Clinton
himself, not a subsequent President, signed the Act into law.

97 Statement by President William J. Clinton upon Signing 8.24, June 30, 1994,


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President Clinton was correct. As Lloyd Cutler, the former Counsel to President
Clinton, said in supporting the concept of an Independent Counsel, President Nixon
was ?certainly not a ?uke. The qualities that betrayed him and us are far from
unique, and we will see them in future administrations again??

Second, in terms of policy, if Congress were to enact temporal immunity from
criminal liability for the President, it would ?rst have to consider the costs. The old
proverb, ?justice delayed is justice denied,? applies with special vigor in the context
of a criminal prosecution. The statute of limitations may prevent presecution. As
veteran prosecutors know, if a trial is delayed, then the memories of witnesses will
fade, documents may be destroyed. It is an axiom that delaying a criminal trial 
especially delaying for years may result in, or be tantamount to creating, a de facto
immunity.

In any event, even if Congress could enact a statute immunizing the President
from the federal criminal laws, it has not done so. Instead, it has enacted a statute
that authorized an Independent Counsel to use the federal grand jury system to
investigate alleged criminal activities of this President.

LEGAL PRECEDENT

THE CASE LAW AND LEGAL OPINIONS. No legal precedent has ever concluded
that the President is immune from the federal criminal laws. In fact, the cases have
suggested the contrary.

For example, in 1972, Gravel v. United States99 notett ?The so-called executive
privilege has never been applied to shield executive of?cials from prosecution for
crime . 

In 1982, in Nixon v. the Supreme Court held that the President
was absolutely'immune for civil damages involving actions taken within his of?cial
duties, but also emphasized that this was ?merely a private suit for damages? and

 

?7 (. ..continue d)

.in, 30 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 1383, July 4, 1994.

98 Lloyd Cutler, A Permanent ?Special Prosecutor,? WASHINGTON POST, Dec. 2,

1974, at A24, col. 4.
99 408 US. 606, 627, 92 2614, 2628, 33 L.Ed.2d 583 (1972).

10? 457 US. 731, 102 2690, 73 L.Ed.2d 349 (1982).

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that there is ?a lesser public interest in actions for civil damages than, for example,
in criminal prosecutions.?1?1 This Court also made clear that there would be no
immunity from civil damage claims, for actions that were not ?within the outer
perimeter of his [the President?s] authority.?102 There is only ?absolute Presidential
immunity frOm damages liability for acts within the ?outer perimeter? of his of?cial
responsibility??3

In 1994, Lloyd Cutler, the White House Counsel to President Clinton, issued
his of?cial legal opinion that it was against the Clinton Administration policy to
invoke Executive Privilege for cases involving ?personal wrongdoing? by any
government of?cial.104

Later, in Clinton v. Jones,105 the Court rejected any notion of Presidential
immunity (even a temporary immunity) for the President who is sued by a private
civil litigant for damages involving acts not within his Presidential duties. In that
case, President Clinton?s ?strongest argument? supporting his claim for immunity on
a temporary basis, the Court said, was the claim that the President occupies a
?unique of?ce? and burdening him with litigation would violate the constitutional
separation of powers and unduly interfere with the President?s performance of his
of?cial duties.106

In language of remarkable breadth, the Jones Court repeatedly stated that no
amount of this kind of burden would violate the Constitution. The President, the
Court held: ?errs by presuming that interactions between the Judicial Branch and the
Executive, even quite burdensome interactions, necessarily rise to the level of
constitutionally forbidden impairment of the Executive?s ability to perform its
constitutionally mandated functions.?107 The opinion, which had no dissents, quoted
with approval James Madison?s view that separation cf powers ?does not mean that

 

101 457 U.S. 731, 754 11.37, 102 2690, 2703 n.37 (emphasis added).
102 457 US. at 757, 102 at 2705.
103 457 US. at 756, 102 at 2704.

10? Lloyd Cutler Legal Opinion of Sept. 28, 1994, discussed in, T.R.Goldman, Cutler
Opined Against Broad Use of Privilege, LEGAL TIMES (OF WASHINGTON, DC.) 14 (Feb. 9, 1998).

ms us. 117 1636, 137 L.Ed.2d 945 (1997).
106 US. at 117 8.01;. at 1645-46.
107 us. at 117 at 1648.

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37

- 1 the branches ?ought to have no partial agency in, or no controul over the acts of each
2 other??8
3
4 And, if that were not clear enough, Justice Stevens? opinion added this
5 clincher:
6 ?The fact that a federal court?s exercise of its traditional Article 
7 jurisdiction may signi?cantly burden the time and attention of
8 the Chief Executive is not su??icient to establish a violation of the
9 Constitution. 
10
11 The Court explained that it ?has the authority to determine whether he has acted
12 within the law.?110 And, "it is also settled that the President is subject to judicial
13 process in appropriate circumstances.?In
14
15 In the Watergate Tapes case (United States v. Nixon?), President Nixon
16 argued that a President could not be subject to the criminal process because, ?if the
17 President were indictable while in of?ce, any prosecutor and grand jury would have
18 within their power the ability to cripple an entire branch of the national government
19 and hence the whole system.?113 The Court did not reach that question, but Clinton

 

US. at 117 at 1648 (emphasis in original), quoting THE FEDERALIST

PAPERS, Federalist No. 47, pp. 325-36 (J. Cooke ed. 1961), which also has emphasis in the
original.

US. at 117 at 1648-49 (emphasis added). I tentatively explored the
implications of the strong language of the Jones case is, Ronald D. Rotunda, The True
Significance of Clinton us. Jones, CHICAGO TRIBUNE, July 8, 1997, at 12, col. 1-6; Rotunda,
Can a President Be Imprisoned?, 20 LEGAL TIMES (OF WASHINGTON, DC.) 22-23 (July 21,
1997). However, my earlier writing mainly quoted from that case. Now I have investigated
this issue fully. Based on my evaluation of the Constitutional history, the Constitutional
language, legal precedent, the relevant statutes and case law, and the view of commentators,
and I am reaching the conclusion of this legal opinion.

?0 at 117 at 1649.

111

US. at 117 at 1649-50, citing andrelying on, Rotunda, Presidents

and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. OF ILL. L. FORUM 1 (1975);
1 RONALD D. ROTUNDA JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE 
PROCEDURE 7.1 (West. Pub. 00., 2d ed. 1992) 1997 Pocket Part.

"2 418 US. 683, 94 3090, 41 L.Ed.2d 1039 (1974).

113

Brief for the Respondent, Richard M. Nixon, President of the United States, in
. - 

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38

1 v. Jones later rejected the argument that the uniqueness of the Presidential Of?ce
2 requires that the Court recognize some sort of immunity from the law- Clinton v.
3 Jones held that, even if the burden of litigation is heavy, the Constitution gives the
4 President no special redress from that burden.

5
6 If even a private party instituting civil litigation may impose special litigation
7 burdens on a Sitting President, then the President?s argument for a relief from the
8 burdens of litigation is much less when the Federal Government initiates a criminal
9 case, where the public interest of justice is much greaterl? because the party is the
10 United States,115 and the action is criminal, not civil.
1 .

12 ARGUMENTS OF PRESIDENT NIXON AND OTHERS THAT THE PRESIDENT IS
13 IMMUNE FROM THE CRIMINAL LAW. President Nixon?s argument that ?any
14 prosecutor and grand jury would have within their power the ability to cripple an
15 entire branch of the national government? is inapplicable here. Neither ?any?
16 prosecutor nor ?any? grand jury cannot institute criminal charges against a sitting
17 President. The Independent Counsel Act does not authorize anyone to institute
18 charges; it only gives its authority to the Independent Counsel, who can only be
19 appointed if the Attorney General (who serves at the discretion of the President) asks
20 the Special Division for an appointmentargued that an indictment would close down the entire Executive

23 Branch of the Federal Government. The President can continue his duties, and ?a

24 federal court?s exercise of its traditional Article jurisdiction may signi?cantly

25 burden the time and attention of the Chief Executive is not sufficient to establish a

26 violation of the Constitution. Ifthe President is indicted, the government will not

27 shut down, any more than it shut down when the Court ruled that the President must

28 answer a civil suit brought by Paula Jones.

29 

 

"3 (. . .continue d)

United States v. Nixon, Nos. 73-1766 73-1834 (October term, 1973), at p. 97.

1? Recall, in Nixon v. Fitzgerald, 457 US. 731, 102 2690, 73 L.Ed.2d 349
(1982), the Court speci?cally noted that, when there is "merely a private suit for damages,?
then there is ?a lesser public interest in actions for civil damages than, for example, in criminal
prosecutions.? 457 US. 731, 754 n.37, 102 2690, 2703 n.37.

"5 The Independent Counsel institutes its criminal litigation in the name of the

United States. United States v. Webster Hubbell, et al., Crim. No. 98-0151 (JRJ).

?6 US. at 117 at 1648-49 (emphasis added).
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39

- 1 President Clinton may well argue that a criminal indictment of the President
2 would inevitably place the nation in turmoil and bring the entire government to a
3 halt. Oddly enough, those same people argue that the solution is to impeach the
4 President. Would not an impeachment place the nation in even more turmoil?

5
6 Moreover, this argument was rejected in Nixon v. Sirica,? which stated, over
7 a quarter of a century ago, that the President ?does not embody the nation?s
8 sovereignty. He is not above the law?s commands . . A criminal proceeding
9 would take no more time than a civil case against the President (and we know that
10 is Constitutional). Moreover, any sanction if there is a conviction can be postponed
11 until after the President is no longer a sitting President.
12
13 In short, to the extent that case law discusses this issue, the cases do not
14 conclude that the President should have any immunity, either absolute or temporary,
15 from the law. On the contrary, they point to the conclusion that, since the birth of the
16 Republic, our constitutional system rejected the ?ction that the King can do no
17 wrong. In fact, in the Clinton v. Jones case, President Clinton himself speci?cally did
18 not place any reliance on the claim. that the President enjoyed the prerogatives of a
19 monarch.119 He has not stated that he would now embrace such a claim, and, if he
20 did, there is no reason to believe that a court would accept that claim any more than
21 the courts. accepted President Nixon?s claims of immunity.
22
23 IMPEACHMENT, INDICTMENT, AND THE COMMENTATORS
24

 

?7 487 F.2d 700, 711 (DC. Cir. 1973)(per curiam)(en bane).

?8 487 F.2d?at 711:

?Though the President is elected by nationwide ballot, and is often said
to represent all the people, he does not embody the nation's sovereignty.
He is not above the law's commands: 'With all its defects, delays and
inconveniences, men have discovered no technique for long preserving
free government except that the Executive be under the law . .
Sovereignty remains at all times with the people, and they do not forfeit
through elections the right to have the law construed against and
applied to every citizen.? (footnotes omitted).

In light of this case, it should be clear that the President is subject to a grand jury subpoena
to give evidence. The President can, of course, plead the Fifth Amendment and refuse to
testify, as could any other witness.

?9 US. at n24, 117 at 1646 n.24.-

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40

A few commentators have questioned whether the impeachment process must
2 be completed before an indictment can issue. No case has ever ruled that any of?cer
3 subject to the criminal law must be impeached before he or she is prosecuted
4 criminally. In fact, whenever the issue has been litigated, the cases have held that
5 impeachment need not precede criminal indictment.120 As early as 1796, when the
6 Constitution and the nation were less than a decade old, Attorney General Lee
7 advised Congress that a territorial court judge could be indicted for criminal offenses
8 while in of?ce although he had not been impeached. Lee, by the way, gave no
9 suggestion that the President should be treated differently.121
10
11 There certainly is no suggestion in the language of the Constitution that the
12 President is otherwise to be treated any differently than other civil of?cers. If the
"-13 Framers wanted to treat the President differently for example, if they wanted to
14 make sure that the President is immune from indictment until after he has been
15 impeached then they could have written such language. They certainly knew how
16 to write such language. Our Constitution refers to ?impeachment? several times, and
17 creates no special rules for the President except it provides a different procedural rule
18 in one speci?c instance: when the President is tried in the Senate, the Constitution
19 provides that the Chief Justice of the United States (rather than the Vice President)

 

12? As the Seventh Circuit noted in upholding the criminal conviction of Federal

Judge Otto Kerner:

?The Constitution does not forbid the trial of a federal judge for criminal
offenses committed either before or a?ser the assumption of judicial of?ce.
The provision of Art. I, 3, cl. 7, that an impeached judge is ?subject to
Indictment, Trial, udgment and Punishment, according to Law? does not
mean that a judge may not be indicted and tried without impeachment
?rst. The purpose of the phrase may be to assure that after impeachment
a trial on criminal charges is not foreclosed by the principle of double
jeopardy, or it may be to differentiate the provisions of the Constitution
from the English practice of impeachment.?

United States v. Issacs, 493 F.2d 1124, 1142 (7th Cir. 1974). Cf. Ronald D. Rotunda,
I mpeaching Federal Judges: Where Are We and Where Are We Going .9, 72 UDICATURE: THE
JOURNAL OF THE AMERICAN JUDICATURE SOCIETY 359 (1989); Ronald D. Rotunda, An Essay on
the Constitutional Parameters of Federal Impeachment, 76 KENTUCKY LAW REVIEW 707 (1988).

121

1907).
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3 HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES 982-83 (Washington,

 

41

1 presides over an impeachment trial.122 The Framers made the decision to treat the
2 President differently on one issue only: they explicitly provided that the Chief Justice
3 shall preside only in the case of a Presidential impeachmentma The Framers did not
4 want the Vice President from presiding over the impeachment of the President
5 because he would be in a con?ict of interest: if the President were to be impeached,
6 the Vice President would become President. 
7
8 It is generally recognized, as Justice Joseph Story noted, that an impeachable
9 offense is not limited to a criminal or statutory offense.125 Moreover, not all crimes

10 are impeachable. To determine what are ?high crimes and misdemeanors? Justice

11 Story advised that one must look to the common law, but it is not necessary to look

12 to the list of statutory crimes. He added:

13

14 ?Congress have unhesitatingly adopted the conclusion,

15 that no previous [violation of] statute is necessary to authorize an

16 impeachment for any of?cial misconduct; and the rules of

17 proceeding, and the rules of evidence, as well as the principles of

18 decision, have been uniformly regulated by the known doctrines

19 of the common law and parliamentary usage. In the few cases of

 

122

US. CONST. ART. 1, 2, cl. 5 (House has "sole Power of Impeachment"); ART. I,
3, c. 6 (Senate has ?sole Power to try all Impeachments? and, in an impeachment trial of the
President, the Chief Justice shall preside); ART. I, 3, cl. 7 (impeachment sanctions cannot
impose criminal penalties, but criminal sanctions may be imposed by separate criminal trials);
ART. 11, 4 (?all civil Of?cers of the United States? are subject to impeachment).

123 One can look at quotations by various of the Framers of the Constitution, but,
n?dealing with these historical materials a serious danger exists of reading into statements
made two hundred years ago a meaning not intended by the speaker-" WATERGATE SPECIAL
PROSECUTION FORCE, Memorandum of Dec. 26, 1973, from Richard Weinberg to Philip
Lacovara, at 4. See also various memoranda attached to this Memorandum and marked as
?con?dential."

This WATERGATE SPECIAL PROSECUTION FORCE, Memorandum after examining the
historical record concludes that the historical sources of two centuries ago ?are equivocal
lending little ?rm support for or against the proposition that the Framers intended to

_7 immunize a sitting President from criminal liability.? Id. at 9.
12? See discussion in, Ronald D. Rotunda, An Essay on the Constitutional Parameters
of Federal Impeachment, 76 KENTUCKY LAW REVIEW 707 (1988).
See JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION 403- 07, at pp. 287-

90 (RONALD D. ROTUNDA JOHN E. NOWAK, eds? Carolina Academic Press. 1987, originally
published, 1833)

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42

1 impeachment, which have hitherto been tried, no one of the

2 charges has rested upon any statutable misdemeanour. It seems,

3 then, to be the settled-doctrine of the high court of impeachment,

4 that though the common law cannot be a foundation of a

5 jurisdiction not given by the constitutidn, or laws, that

6 jurisdiction, when given, attaches, and is to be exercised

7 according to the rules of the common law; and that, what are, and

8 what are not high crimes and misdemeanours, is to be ascertained

9 by a recurrence to that great basis of American jurisprudence.??2?
10
11 Story?s judgement has stood the test of time. Impeachment charges have not
12 been limited to violations of federal criminal statutes. Federal judges have been
13 indicted before they are impeached.127 Indeed, to emphasize the distinction and
14 separation of impeachment and criminal indictment, one judge was impeached after
15 he had been acquitted in a criminal trial.128
16

 

?6 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION, 405, at p. 288 (RONALD

D. ROTUNDA JOHN E. NOWAK, eds., Carolina Academic Press, 1987, originally published,
1833)(emphasis added).

This has long been the rule. In 1796, Attorney General Lee informed Congress
that a judge of a territOrial court, a civil officer of the United States subject to impeachment,
was indictable for criminal offenses while in of?ce. 3 HINDS, PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES 982-83 (Washington, 1907). The ?Framers did not intend civil of?cers
generally to be immune from criminal process.? In re Proceedings of the Grand Jury
Impaneled Dec. 9, 1972, Memorandum for the Unites States Concerning the Vice President?s
Claim of Constitutional Immunity, at p. 99, quoting 3 PRECEDENTS, supra.

For example, Judge Otto Kerner was indicted and convicted before there was any
impeachment. His resignation ended the need for a subsequent impeachment. See United
States v. Isaccs, 493 F.2d 1124, 1142 (7th Cir. 1974), citing the 1796 Attorney General Opinion
upholding the conviction of Judge Kerner even though he had not been impeached and
removed by Congress. Kerner then resigned from the bench and was not impeached.

Judge Walter Nixon (who did not resign from the bench) was impeached after he was
convicted. See, Nixon v. United States, 506 US. 224, 113 732, 122 L.Ed.2d 1 (1993).

?8 Judge Alcee Hastings falls in this category. See, Hastings 0. Judicial Conference
of the United States, 829 F.2d 91 (DC. Cir. 1987). See generally, WILLIAM H. REHNQUIST,
GRAND INQUESTS (1992). The House impeached Judge Hastings by a lopsided vote of 413 to
3; the Senate removed him in 1989. Hastings was subsequently elected to the US. House of
Representatives. Joe Davidson, Ens-Judge Is Likely To Join the Congress That Impeached
Him, Wall Street Journal, Nov. 2, 1992, at A1, 1992 WESTLAW-WSJ 629646.

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43

INDICTABILITY OF THE VICE PRESIDENT. Similarly, history demonstrates that
the Vice President can be indicted and criminally prosecuted before being impeached
(and whether or not he has been impeached). New Jersey, for example, indicted Vice
President Aaron Burr for the death of Alexander Hamilton in a duel.129 Burr did not
act as if he were immunized from indictment. Instead, he ?ed the jurisdiction to
avoid arrest. 13? Burr continued functioning as Vice President while under indictment;
in fact, Burr (as President of the Senate) even presided over the impeachment trial
of Justice Chase.131 Vice President Spiro Agnew also argued, unsuccessfully, that he
was immune from indictment prior to impeachment, but he ended up being indicted
on corruption charges, pleading guilty, and resigning from o?z?ice.132

President Clinton, like President Nixon, may wish to argue that the Presidency
is ?unique,? and that the President alone represents ?the Executive Branc 
Consequently, it is argued, the President alone is immune from the criminal laws
while he is sitting as President.

The Court, in Nixon v. Sirica,133 explicitly rejected that argument. ?Because
impeachment is available against all ?civil Of?cers of the United States,? not merely
against the President, US. Const. art. II, 4, it is dif?cult to understand how any
immunities peculiar to the President can emanate by implication from the fact of
impeachability.?134 A criminal indictment and even a trial do not ?compete with the
impeachment device by working a constructive removal of the President from
of?ce.?135 Ifthe-President is acquitted, there is no ?constructive removal? from of?ce. -

 

?9 1 MILTON LOMASK, AARON BURR 329, 349-55 (1979).
13? Id.

See, WATERGATE SPECLAL PROSECUTION FORCE, Memorandum of Dec. 26, 1973,
from Richard Weinberg to Philip Lacovara, at 29-30.

132

RICHARD D. COHEN ULES WITCOVER, A HEARTBEAT AWAY (1974).
?33 487 F.2d at 700 (DC. Cir. 1973)(per curiam)(en banc).
?34 487 F.2d at 71111.50.

487 F.2d at 711:

"Nor does the Impeachment Clause imply immunity from routine court

process. While the President argues that the Clause means ?that

impeachability precludes criminal prosecution of an incumbent, we see

no need to explore this question except to note its irrelevance to the case


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44

1 Ifthe President is convicted, the punishment may not include imprisonment, and 
2 if it does any imprisonment can he stayed until he no longer is a sitting President.
3
4 The test that Nixon v. Sirica adopted is directly applicable here. A criminal
5 indictment and even a trial do not ?compete with the impeachment device by working
6 a constructive removal of the President from of?ce.? However, imprisonment may be
7 a ?constructive removal of the President from of?ce,? and, if it is, that sanction cannot
8 be imposed on a sitting President. But indictment and trial are not the same as
9 imprisonment. Ifthere is a trial, the President may be acquitted. Ifhe is convicted,
10 the sanction may not include imprisonment, and if it does, that sanction can be
11 stayed until after the Presidential term has ended.
12
13 CONGRESSIONAL POWER TO CONTROL THE DECISION T0 INDICT. If an of?cial
14 subject to impeachment (such as the President, Vice President, or a federal judge)
15 could not be indicted until after he or she had been impeached, then Congress would
16 control the decision whether to prosecute. But such a power would be inconsistent
17 with the doctrine of separation of powers, which does not give Congress a role in the
18 execution of the laws.136
19
20 The deCision to prosecute or not prosecute is a decision that cannot lie with the
21 legislature. In the instant case, it lies with the Independent Counsel, who, under the
22 statute, stands in the shoes of the Attorney General. The decision to appoint the
23 Independent Counsel rests in the unreviewable discretion of the Attorney General.
24 The U.S. Supreme Court has made clear that neither the courts nor Congress can .
25 require the appointment of an Independent Counsel.137
26
27 The decision to indict a sitting President lies with the Grand Jury, not with the
28 House of Representatives or Senate. As Nixon v. Sirica eloquently stated: ?The
29 federal grand jury is a constitutional ?xture in its own right, legally independent of

 

?35 (. . .continued)

before us. The order entered below, and approved here in modi?ed form,
is not a form of criminal process. Nor does it compete with the
impeachment device by working a constructive removal of the President
from. Office. 

487 F.2d 700 at 711(emphasis added).
?36 See Bowsher v. Synar, 478 US. 714, 106 3181, 92 L.Ed.2d 583 (1986).

Morrison v. Olson, 487 US. 654, 694-95, 108 2597, 2621, 101 L.Ed.2d 569
(1988). This point is discussed in detail in note 10, supra.

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45

1 the Executive. . . . If a grand jury were a legal appendage of the Executive, it could
2 hardly serve its historic functions as a shield for the innocent and a sword against
3 corruption in high places.?138 The Court went on to state that, as ?a practical, as
4 opposed to legal matter, the Executive may, of course cripple a grand jury
5 investigation,? but even though the President may have the practical power to
6 handicap the grand jury in various ways, ?it is he who must exercise them. the court
7 will not assume that burden by eviscerating the grand jury?s independent legal
8 authority.?l39
9
10 THEWATERGATE EXPERIENCE. The Watergate Special Prosecution Force did
11 not indict President Nixon but named him an unindicted coconSpirator. President
12 Nixon resigned from of?ce, was pardoned by his successor, President Ford, and the
13 issue was never tested in court. Some modern day commentators assume that the
14 Watergate Special Prosecutor concluded that a sitting President is immune from
15 indictment. That assumption is simply wrong.
16
17 The Watergate Special Prosecutor only argued that, in the narrow
18 circumstances of that case where the House of Representatives had already made
19 the independent judgment to begin impeachment proceedings, when the House of
20 Representatives, prior to any turnover of Grand Jury evidence, had independently
21 decided to.consider the very matters that were before the Grand Jury the President
22 should not be indicted until after the impeachment process had concluded.?0

 

487 F.2d at 712 11.54 (emphasis added)(internal citations omitted).
?9 487 F.2d at 713 n.54 (emphasis in original).

See LEON JAWORSKI, THE RIGHT AND THE POWER 100 (1976). aworski argued
that his Watergate Special Prosecution Force could seek an indictment against the President
for some crimes (like murder), but, aworski said, he questioned whether it was appropriate
to indict the President for other crimes, like obstruction of justice, ?especially when the House
Judiciary Committee was then engaged in an inquiry into whether the President should be
impeached on that very ground.?

Of course, aworski?s comments must be read in context. First, no case law reaches the 
conclusion that Jaworski and other lawyers working for him reached at the time. His
ambivalent opinions are not legal precedent.

More importantly, aworski?s decision was quite nuanced. The distinctions he drew
argue that an indictment would be appropriate in the present case because no impeachment
is under way. In addition, aworski conclusion that the President should not be indicted was
tentative (?grave doubts," not ?rm conclusions), and those conclusions, he emphasized, were

- 

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46

 

?0 

made in the speci?c factual and historical context within which the Watergate Special I
Prosecution Force operated. That factual and historical context is different today.

That factual and historical context is important. It is signi?cant that the Watergate
Special Prosecution Force was a very different animal than the present Of?ce of Independent
Counsel. Unlike the present Of?ce of Independent Counsel, the Watergate Special Prosecution
Force was not a creature of statute. It was merely a creation of executive regulation. Until
the US. Supreme Court ruled on the issue, it was unclear if the courts could even rule on an
evidentiary dispute between the Special Prosecutor and a ?superior of?cer of the Executive
Branch.? United States v. Nixon, 94 US. 683, 692-93, 94 3090, 3100, 41 L.Ed.2d 1039
(1974). The decision of the Watergate Special Prosecutor not to seek to indict President Nixon
was made in the context where even the powers of the Special Prosecutor to subpoena evidence
from the President were unclear. I have examined the series of memoranda dealing with the
issue of the amenability of President Nixon to indictment. The various memoranda are not of
one opinion (some favored indictment), and they speci?cally raised concerned about the
permissibility of an indictment brought by a Special Prosecutor who was appointed by, and
could be ?red by, the Attorney General, when the Special Prosecutor was protected only by a
regulation signed by the Attorney General, and the validity of this entire arrangement had not
been tested in court. See, WATERGATE SPECIAL PROSECUTION FORCE, Memorandum of Dec. 26,
1973, from Richard Weinberg to Philip Lacovara, at 33-34.

Signi?cantly, the regulations that created the Watergate Special Prosecutor provided
that the ?Prosecutor will not be removed from his duties . . . without the President?s ?rst .
consulting the -Majority and .Minority Leaders and the Chairmen and ranking Minority
Members of the Judiciary Committees of the Senate and House of Representatives and
ascertaining that their consensus is in accord with his proposed action.? 38 FED. REG. 30739,
quoted in, United States v. Nixon, 418 US. 683, 695 n.8, 94 3090, 3101 n.8. The Nixon
Court did not speci?cally rule on this provision. We know now that a law that gives Congress
(or certain members of Congress) a role in limiting the removal of executive branch of?cials is
unconstitutional. As Bowsher v. Synar, 478 US. 714, 722-23, 106 3181, 3186, 92 L.Ed.2d
583 (1986) held: 

?The Constitution does not contemplate an active role for Congress in the
supervision of of?cers charged with execution of the laws its enacts. . . . Once the
appointment has been made and con?rmed, however, the Constitution explicitly
provides for removal of Of?cers of the United States by Congress only upon
impeachment . . .. A direct congressional role in the removal of of?cers charged
with the execution of the laws beyond this limited one [of impeachment] is
inconsistent with separation of powers."

One could see why the Watergate Prosecutor was hesitant to claim a power to-indict,
when the very existence of the Watergate Prosecutor was constitutionally in doubt (a doubt


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47

 

?0 (1)

that bore fruit in Synar). No such doubt applies to the present Of?ce of Independent Counsel,
for Congress has no role to play in the removal of the Independent Counsel, and the Supreme
Court has upheld the constitutionality of this statute. Morrison 0. Olson, 487 US. 654, 108
2597, 101 L.Ed.2d 569 (1988).

At the time that aworski wrote his tentative conclusions, the US. Supreme Court had
not even decided that a President c0uld be sued for damages in a civil case. The Court later
answered yes to that question in, Nixon v. Fitzgerald, 457 US. 731, 102 2690, 73 L.Ed.2d
349 (1982).

Moreover, the Memoranda on this issue show that the attorneys in the Watergate
Special Prosecution Force divided on this issue. WATERGATE SPECIAL PROSECUTION
FORCE, Memorandum of Dec. 26, 1973, from Richard Weinberg to Philip Lacovara, at 43, 44:

?The issue is close. Respectable arguments derived from history and
contemporary policy exist on both sides of the issue. . . . My conclusion is that
the Constitution does not preclude indictment, and the issue is really whether
the incumbent President should be indicted.? [emphasis added]

See also, JOHN HART ELY, ON CONSTITUTIONAL GROUND 133 et seq. (Princeton University Press
1996), reprinting his memorandum to Special Prosecutor Archibald Cox that argued that the
President could be indicted.

. Commentators prior to Morrison 0. Olson. The view of legal commentators
regarding the indictment of a sitting President was mixed, prior'to Morrison 0. Olson. Those
commentators claiming that the President is immune from criminal prosecution have typically
discussed the issue in a vacuum, not in the context of a speci?c investigation of a President
pursuant to a statute, enacted at the President?s request, authorizing a criminal investigation
of the President. See George E. Danielson, Presidential Immunity from Criminal Prosecution,

. 63 GEORGETOWN L.J. 1065 (1975) (arguing that the President is immune from criminal
prosecution); PHILIP KURLAND, WATERGATE AND THE CONSTITUTION 135 (1978) (arguing that
the President is immune from criminal prosecution). Note that these commentators wrote
without bene?t of the Supreme Court decision in, Morrison v. Olson, 487 US. 654, 108 
2597, 101 L.Ed.2d 569 (1988).

Other commentators have argued that the President and all other of?cials are subject

to indictment prior to impeachment in part because some acts may not be impeachable but

are certainly indictable. See, RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF
AMERICA 215 (2d ed. 1829):

?the ordinary tribunals, as we shall see, are not precluded, either before or after
impeachment, from taking cognizance of the public and of?cial delinquency.?



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48

However, prior to that situation in the case where the House of
Representatives had not already begun impeachment'process historians forget that
the Watergate Special Prosecution Force was advised that the President could be

{Ii?beam.?

 

?0 (.. .Continued)

(emphasis added).

Quoted in, SPECIAL PROSECUTION FORCE, Memorandum of Dec. 26, 1973, from
Richard Weinberg to Philip Lacovara, at 13. See also other authorities cited therein. Accord,
JOHN HART ELY, ON CONSTITUTIONAL GROUND 133 et seq. (Princeton University Press 1996),
reprinting his 1973 memorandum to Special Prosecutor Archibald Cox arguing that President
could be indicted.

Commentators after Morrison 0. Olson. Post-Morrison v. Olson commentators have
tended to conclude that the President is not above the law. See, Gary L. McDowell, Yes, You
Can Indict the President, WALL STREET JOURNAL, March 9, 1998, at A19, col. 3?6 (Midwest 
Edwin B. Firmage R.C. Man-yum, Removal of the President- Resignation and the Procedural
Law of Impeachment, 1974 DUKE L.J. 1023 (arguing that President is not immune from the
criminal pracess); Eric Freedman, The Law as King and the King as Law: Is a President
Immune from Criminal Prosecution Before Impeachment?, 20 HASTINGS CONST.L.Q. 7 (1992)
(thorough article concluding that the President is not immune); Terry Eastland, The Power to
Control Prosecution, 2 Nexus 43, 49 (Spring, 1997)(referring to Morrison 0. Olson and
concluding that the President is not immunized from prosecution); Eric M. Freedman,
Achieving Political Adulthood, 2 NEXUS 67, 84 (Spring, 1997), concluding:

?To the extent that the belief that the President should have a blanket
immunity from criminal prosecutions manifests itself in legal form, legal
decisionmakers should reject it. The argument is-inconsistent with the history,
structure, and underlying philosophy of our government, at odds with precedent,
and unjusti?ed by practical considerations."

See also, Scott W. Howe, The Prospect of a President Incarcerated, 2 NEXUS 86 (Spring, 199 7),
arguing that the President has no constitutional immunity from criminal prosecution, but
Congress may wish to create some limited immunity by statute.

Jay S. Bybee, Who Executes the Executioner?, 2 NEXUS 53 (Spring, 1997) argues that
before the President, or federal judges, can be tried, they ?rst must be impeached, an
argument that is more in the nature of a polemic, because it uproots two centuries of practice
regarding the prosecution of federal judges. See also Akhil Reed Amar Brian C. Kalt, The
Presidential Privilege Against Prosecution, 2 NEXUS 11 (Spring, 1997), which presents such a
broad argument for Presidential immunity that it is inconsistent with Clinton v. Jones, U.S.
117 1636, 137 L.Ed.2d 945 (1997).

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49

1 indicted.?1
2 -
3 USE OF GRAND JURY TO COLLECT EVIDENCE FOR AN IMPEACHMENT.
4
5 INTRODUCTION. If it is unconstitutional for a federal grand jury, acting
6 pursuant to the Independent Counsel statute to indict a President for engaging, in
7 his private capacity, in serious violations of federal law, then it would be a gross
8 abuse of the grand jury powers and a violation of federal statutory and constitutional
9 law for that grand jury to investigate whether the President has committed any
to criminal law violations. But we know, after Morrison v. Olson,142 that it is
11 constitutional for the Independent Counsel to use the grand jury to investigate the
12 . President. That conclusion was implicit in the holding of Morrison. Hence it should
13 be constitutional to indict a sitting President because it would not be constitutional
14 to use the grand jury to investigate if it could not constitutionally indict.
5 
16 Let us analyze this argument in more detail. First, as all the legal
17 commentators acknowledge:
1 8
19 ?The grand jury is authorized only to conduct criminal investigations.
20 Accordingly, it is universally acknowledged that the grand jury cannot
21 be used to conduct an investigation or even explore a particular line
22 of inquiry solely in order to collect evidence for civil purposes??
23 
24 Thus, as the US. Supreme Court has stated, the federal government may not ?start 
25 or continue a grand jury inquiry where no criminal prosecution seem[s] likely.?144 If
26 the grand jury investigation ?is merely a pretext for a civil evidence-gathering

 

JOHN HART ELY, ON CONSTITUTIONAL GROUND 133 et- seq. (Princeton University 

Press 1996), reprinting his: Memorandum to Special Prosecutor Archibald Cox on the Legality
of Calling President Nixon before a Grand Jury (1973). Professor Ely explains that
?prosecution of a sitting (non-impeached) president must be possible, or else there would be no
way to reach? crimes that do not rise to the level of impeachment. Id. at 139. Ely expanded on
those arguments in id. at 140-41.

?2 487 US. 654, 108 2597, 101 L.Ed.2d 569 (1988).

?3 2 SARA SUN BEALE WILLIAM C. BRYSON, GRAND JURY LAW AND PRACTICE 8.01

at 2 (Callaghan 1986)(emphasis added).

United States v. Sells Engineering Inc, 463 US. 418, 432, 103 3133, 3142,
77 L.Ed.2d 743 (1983). See also, 2 SARA SUN BEALE WILLIAM C. BRYSON, GRAND JURY LAW
AND PRACTICE {5 10.14 at 51 (Callaghan Co., 1986)

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50

1 mission, the grand jury process is clearly being abused under any standard.?145
2 

. 3. There are few cases where the courts have found that the Government has
4 abused the grand jury system in order to gain evidence that would or could not be
5 used in a criminalprosecutiOn. But, where the courts ?nd a bad motive, they do not
6 allow an illegal use of the grand jury system.

7 .

8 In the present case, it is quite clear that one of the purposes of the grand jury

9 investigation conducted by the O?ice of Independent Counsel is to investigate
10 President Clinton. Of course, the OIC and the grand jury'have other persons whom
11 it is investigating and whom it may indict (or already have indicted). And, to that
12 extent, the actions of the several Grand Juries in this investigation are proper.
13 Morever, to the extent that it is conducting a valid criminal investigation, it may
14 disclose the fruits of its investigation for civil purposes to the extent that statutes or
15 rules governing such disclosure so authorize.146
16
17 However, in this case it is clear that some of the grand jury?s subpoenas, some
18 of the energy of the OIC, and a portion of the mandate of the OIC are intended solely
19 to investigate criminal allegations against the President in connection with issues
20 such as Whitewater, Castle Grande, the FBI White House ?les, the alleged illegal
21 abuses involving the Travel Of?ce of the White House, and most recently 
22 allegations involving possible Presidential perjury, subordination of perjury,
23 tampering of witnesses, and obstruction of justice in the litigation captioned as Jones
24 0. Clinton.
25
26 The purpose of the OIC investigation and the grand jury investigation is to
27 determine Whether the President has, or has not, engaged in serious crimes. If the
28 grand jury cannot indict the President for such crimes, then it has no business
29 investigating the President?s role in such crimes. Impeachment, after all, is an

 

?5 2 SARA SUN BEALE WILLIAM C. BRYSON, GRAND JURY LAW AND PRACTICE 8.03
. at 9 (Callaghan Co., 1986).

See also United States v. Proctor Gamble Co., 187 F. Supp. 55, 57-58 (D. N.J. 1960).
This case was on remand from, United States v. Proctor Gamble Co., 356 US. 677, 78 
983, 2 L.Ed.2d 1077 (1958), and it applied the test adopted in that case.

?5 United States v. Baggot, 463 US. 476, 103 3164, 77 L.Ed.2d 785
(1983); RULE 603), FEDERAL RULES OF CRIMINAL PROCEDURE.

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51

admittedly noncriminal proceedingm Ifthe purpose of the grand jury investigation

2 of President Clinton is not to indict even if the evidence commands indictment (or if

3 its purpose is simply to investigate possible impeachable offenses on behalf of the

4 House of Representatives and then turn over this information to the House), then, in

5 either case, the grand jury is being misused.148

6

7 WHEN THE GRAND JURY Is USED To TURN OVER INFORMATION TO ANOTHER

8 UNIT OF GOVERNMENT. It would be wreng, for example, to use the grand jury solely

9 to gather information to be used by another governmental unit. Ifthe grand jury is
10 investigating in good faith to determine if the President has engaged in any criminal
11 conduct, it may turn over, to the House of Representatives, information that it has
12 gathered in its investigation of alleged criminality that also is relevant to the House
13 even if the grand jury ultimately concludes that it is not relevant to a criminal
l4 inquiry.
15
16 The important point is that the grand jury must act in good faith and not as
17 the agent of another entity of the government. ?It is suf?cient if the agencies are
18 engaged in good faith investigations within their respective jurisdictions, and that
19 one agency isnot simply serving as a cat?s paw for another, under the pretext of
20 conducting its own investigation.?149 Grand Juries cannot be used as a short cut for
21 the House of Representatives to collect information that otherwise would be more
22 di?icult to secured? The OIC cannot use the grand jury to investigate alleged
23 criminal activity by the President if an indictment (assuming that the evidence
24 warranted it) is ?merely an unexpected bare possibility.?151 The OIC (which sits in
25 the shoes of the Attorney General) must have an open mind whether to seek an
26 indictment, but it cannot have an open mind about this issue if it would be illegal or

 

?7 E.g.,the sanction cannot result in imprisonment or ?ne. The standard of proof

is not beyond a reasonable doubt. There is no jury of twelve people drawn from the general
public. An impeachment and removal do not prevent a criminal prosecution.

?3 On the other hand, it would be proper to turn over information secured in good
faith for purposes of securing an indictment but that is also relevant to impeachment.

?9 2 SARA SUN BEALE WILLIAM C. BRYSON, GRAND JURY LAW AND PRACTICE 8.02

at 6 (Callaghan Co., 1986), citing, United States v. Proctor Gamble Co., 187 F. Supp. 55,
58 (D. NJ. 1960).

United States v. Proctor Gamble Co., 356 US. 677, 683-84, 78 983, 987,
2 L.Ed.2d (1957).

United States v. Proctor Gamble Co., 187 F. Supp. 55, 58 (D. NJ. 1960).
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52

unconstitutional to indict the President.152

In other words, if the statute creating the 010 and authorizing it to investigate
the President and turn over relevant information to the House of Representatives
does not authorize or permit the 010 to seek an indictment of the President, the
statute is authorizing an abuse of the grand jury powers, an unconstitutional
perversion of the Fifth Amendment, which created the grand jury. It is clearly
improper to use the grand jury, a creature of the criminal process, to collect evidence
for noncriminal purposes. It is unconstitutional to use the grand jury solely as a tool
of a House impeachment inquiry to investigate in an area where it could not indict
even if the evidence warranted an indictment.

WHEN THE GRAND JURY IS USED TO INVESTIGATE A CRIMINAL DEFENDANT
WHO CANNOT BE INDICTED FOR A CRIME BECAUSE HE ALREADY HAS BEEN
INDICTED. It is improper for the Government to use the grand jury to investigate a
target?s role in a matter after the grand jury has indicted the target. If the grand jury
has already indicted a target, it is an abuse of the grand jury system to use the grand
jury to investigate further on that matter. Because the grand jury cannot indict the
target on the matter in question the target, after all, has already been indicted 
it cannot use its investigatory powers to further investigate the 

That logic applies here too. Ifthe grand jury cannot indict the target (because
he is President) then it cannot use its investigatory powers to further investigate the
target.

 

?2 Grand Jury Presentments. In some instances, _a Grand Jury can issue a

report, a ?presentment? without issuing any indictments. But such a Grand Jury is
investigating alleged criminal activities and could indict. Even in these circumstances, civil
libertarians have raised serious objections to such presentments.

No Grand Jury should be the alter ego of the House Judiciary Committee or any other
House entity investigating possible impeachment. The House of Representatives has the ?sole?
power to impeach ART. I, 2, cl. 5 (House has ?sole Power of Impeachment?)] and
should not treat the Office of Independent Counsel as its alter ego or tool.

United States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964), cert. denied, 379
US. 845, 85 50, 13 L.Ed.2d 50 (1964); In re Grand Jury Subpoena Duces Tecum Dated
January 2, 1.985 (Simels), 767 F.2d 26, 29-30 (2d Cir. 1985)(To protect the grand jury from
being ?abused,? where defendant makes a ?strong showing that the government?s dominant
purpose [in issuing a subpoena] was pretrial preparation,? for an already pending indictment
the court will quash the subpoena. In this case, the Court of Appeals reversed the trial court
and quashed the subpoena.) See also In re National Window Glass Workers, 287 F. 219 (N .D.
Ohio 1922).

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53

WHEN THE GRAND JURY IS USED TO INVESTIGATE A MATTER WHERE IT
2 WOULD BE UNGONSTITUTIONAL To INDICT. As discussed above, the Speech or
Debate Clause gives an absolute constitutional privilege that will protect a Member
4 of Congress from being questioned about his or her vote on a legislative matter.
5 Assume that. a grand jury was investigating a matter where it could not
6 constitutionally indict, given the narrow, but absolute protections of the Speech or
7 Debate Clause. It would be unconstitutional for the grand jury to inquire into
8 matters where it could not constitutionally indict.?4 If the grand jury cannot
9 constitutionally indict for particular actions because of the Speech or Debate Clause,
10 then it cannot constitutionally ask questions regarding this matter.155 Courts should
11 ?not hesitate to limit the grand jury's investigative power in deference to this
12 congressional privilege??6
13
14 If the grand jury cannot indict the President (because it would be
15 unconstitutional to do so), then the Independent Counsel certainly cannot use the
16 grand jury to investigate President Clinton. If the President is somehow immune
17 from indictment and above the law, then the grand jury (whether in Arkansas or in
18 Washington, or elsewhere) would be acting unconstitutionally, as would the
19 federal trial judges who supervise these Grand Juries. If it is unconstitutional to
20 indict the President, it is unconstitutional for the grand jury to investigate him.
21
22 But, we know that it is constitutional for the Independent Counsel to
23 investigate the President to determine if he should be indicted for criminal acts. That
24 was what Morrison Olson157 was all about.
25 -
26 Morrison upheld the constitutionality of the Independent Counsel Act. That
27 case decided, implicitly, that it must be constitutional to indict the. President if the
28 evidence warrants and demands such an indictment. That conclusion was implied
29 in the holding of Morrison u. Olson, and it explains why the Court later issued its
. 30 strong language in Clinton v. Jones, rejecting the notion that the federal judiciary?s
31 exercise of jurisdiction over the President creates a problem of separation of powers.

 

Gravel v. United States, 408 US. 606, 628-29, 92 2614, 2628-29, 33
L.Ed.2d 583 (1972).

1?5 Gravel v. United States, 408 US. 606, 629 n.18, 92 2614, 2629 n.18, 33
L.Ed.2d 583 (1972). 

156

PAUL S. DIAMOND, FEDERAL GRAND JURY PRACTICE AND PROCEDURE 6.04 at
6-31 (Aspen Publishers, Inc. 1995). See also id. at 

487 US. 654, 108 2597, 101 L.Ed.2d'569 (1988).
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54

1 ?The fact that a federal court's exercise of its traditional Article 
2 jurisdiction may significantly burden the time and attention of
3 the Chief Executive is not suf?cient to establish a violation of the
4 Constitution. ??58
5
6 As discussed above, distinguished Constitutional scholar, former Federal
7 Judge, and former Yale Law Professor Robert Bork concluded, in a famous
8 Memorandum he ?led when he was Solicitor General of the United States, that
9 Federal prosecutors could investigate and indict a sitting Vice President. It is
10 noteworthy to recall the ?rst sentence of that Memorandum:
1 1
12 ?The motion by the Vice President [Spiro T. Agnew] poses
13 a grave and unresolved constitutional issue: whether the Vice
14 President of the United States is subject to federal grand jury 
15 investigation and possible indictment and trial while still in
16 of?ce??9
17 . .
18 Solicitor General Bork properly concluded that, if the Vice President could not be
19 indicted, the grand jury could not subject him to an investigation. Because, he
20 concluded, the grand jury could constitutionally indict the Vice President, therefore
21 it could constitutionally investigate the Vice President.
22
23 CONCLUSION
24
25 We must keep in mind the following:
26
27 . the decision of the US. Supreme Court in Morrison v. Olson upholding
28 the constitutionality of the Independent Counsel Act and the authority
29 . it bestows on a grand jury to investigate criminal charges involving the
30 President of the United States;
31 the decision of President Clinton to lobby for and sign this legislation
32 with full knowledge that a prime focus of that Act would be allegations
33 surrounding his own conduct;
34 l? the decision of Congress not - to enact any legislation conferring

 

US. at 117 at 1648-49 (emphasis added).

In re Proceedings of the Grand Jury Impaneled December 5, 1972, Application
of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965,
Memorandum for the United States Concerning the Vice President?s Claim of Constitutional

Immunity, Oct. 5, 1973, at p. 1.
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55 
1 immunity from criminal prosecution but, on the contrary, to enact
2 legislation to create the O?ice of Independent Counsel to investigate
3 allegations of criminal conduct involving President Clinton;
4 the legislative history of the law creating an Independent Counsel
5 indicating speci?cally that Congress did not intend to bestow any
is criminal immunity to any person covered by that Act;
7 5 President Clinton?s full knowledge that the Act?s ?rst court-appointed
8 counsel. would be speci?cally charged with investigating President
9 Clinton;
10 the decision of President Clinton?s Attorney General to petition the
11 Special Division to appoint such an Independent Counsel;
12 the subsequent decision of President Clinton?s Attorney General on
13 several occasions to petition the Special Division to expand the
14 jurisdiction of the Independent Counsel to include other allegations of
15 criminal conduct involving President Clinton.
16 the counts of an indictment against President Clinton would include
17 serious allegations involving witness tampering, document destruction,
18 perjury, subornation of perjury, obstruction of justice, conspiracy, and
19 illegal pay-offs counts that in no way relate to the President
20 Clinton?s of?cial duties, even though some of the alleged violations
21 occurred after he became President.
22
23 These factors all buttress and lead to the same conclusion: it is proper, 
24 constitutional, and legal for a federal grand jury to indict a sitting President for
25 serious criminal acts that are not part of, and are contrary to, the President?s of?cial
26 duties. In this country, no one, even President Clinton, is above the law.
27
28 This conclusion does not imply that a President must be required to serve an
29 actual prison term before he leaves of?ce. The defendant President could remain free
30 pending his trial,160 and the trial court could defer any prison sentence until he leaves
31 of?ce.161 The defendant-President may petition the courts to exercise its discretion
32 in appropriate cases. It is one thing for the President to petition the court to exercise
33 its discretion; it is' quite another for the President to announce that he is above the
34 law and immune from criminal prosecution.
35

 

There is, after all, no risk of ?ight to avoid prosecution.

161

See Ronald D. Rotunda, When Duty Calls, Courts Can Be Flexible, WASHINGTON
POST, January 29, 1997, at p. A21, col. 2-3.

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56

1 Before or after indictment, Congress could exercise its independent judgment
2 as to whether to begin impeachment proceedings or await the conclusion of the
3 criminal proceedings?2 Or, if Congress didnot wish to postpone the impeachment
4 proceedings, Congress if it wished (and if the President agreed), could ask the
5 Independent Counsel to delay the criminal trial. The President could also petition
6 the court to stay or postpone the criminal trial until the impeachment proceedings
7 were concluded.
8
9 Neither the criminal proceeding nor the impeachment proceeding will control
10 the other. As Solicitor General Bork pointed out a quarter of a century ago:
1 
12 ?Because the two processes have different objects, the
13 considerations relevant to one may not be relevant to the other.?
14 -
15 For that reason, neither conviction nor acquittal in one trial, though it may be
16 persuasive, need automatically determine the result in the other trial."163
17
I 18 And, the House or Senate may conclude that ?a particular offense, though
19 properly punishable in the courts, did not warrant? either impeachment or removal
20 from of?ce?s?
21
22
23 Sincerely,
24
25
26
27
28 Ronald D. Rotunda
29 ALBERT E. ENNER, JR. PROFESSOR or LAW

 

?62 Of course, if Congress decides to institute impeachment proceedings, it will

decide whether a penalty is to be imposed, and, if so, what penalty is appropriate removal
from of?ce, or a lesser penalty, such as a public censure).

In re Proceedings of the Grand Jury I mpaneled December 5, 1972, Application
of Spiro T. Agnew, Vice President of the United States, Case. Number Civil 73-965,
Memorandum for the United States Concerning the Vice President?s Claim of Constitutional
Immunity, Oct. 5, 1973, at p. 9 (Robert Bork, Solicitor General).

In re Proceedings of the Grand Jury I mpaneled December 5, 1.972, Application
of Spiro T. Agnew, Vice President of the United States, Case Number Civil 73-965,
Memorandum for the United States Concerning the Vice President?s Claim of Constitutional

NW: 16018IEooldit??Oth2 5619173gat?? 9 (Robert Bork, Solicitor General).