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UndergradUate Law review at nYU OnLine editiOn

No. 2 Fall 2019

Above the LAw? A Legal Assessment of a Sitting President’s Effective Immunization from Indictment and Criminal Prosecution

Robert Miller

I. Introduction President ’s tenure in offce has been marked by a series of high-profle investigations and lawsuits. At the onset of his presidency, Mr. Trump and some of his political associates were accused of conspiring with the government of the Russian Federation to interfere in the 2016 presidential election in order to beneft his campaign. After a two-year investigation, appointed by Deputy following the dismissal of FBI Director James Comey, insuffcient evidence was found to establish that the Trump campaign coordinated with Russia. With regard to the charge of whether the president had obstructed justice by impeding the Department of Justice’s investigation into his campaign, Trump was neither indicted nor exonerated because of an internal DOJ policy memo from the Offce of Legal Counsel (OLC), which asserted that a president is immune from indictment or prosecution while in offce.1 More recently, the House of Representatives launched an impeachment inquiry in order to investigate the claim that Mr. Trump attempted to solicit election interference from a foreign government. The investigation revolves around the claim that Trump withheld $400 million of congressionally appropriated military aid, as well as a White House visit, from the government of Ukraine, until the newly elected Ukrainian President Volodymyr Zelensky signaled he would launch public investigations into Hunter Biden, the son of former Vice President , one of Trump’s challengers for the 2020 presidential election. From 2014 to 2019, Hunter Biden served on the board of Burisma Holdings, a major Ukrainian natural gas producer. President Trump has claimed that Joe Biden sought the dismissal of a Ukrainian state prosecutor in order to shield Hunter Biden from corruption investigations. Additionally, Democrats are investigating an anonymous whistleblower complaint, which suggested that the White House had engaged in a coverup to conceal the president’s request.2 Now, in a case regarding an investigation conducted by Manhattan District Attorney Cyrus Vance into hush-money payments to two women who say they had affairs with Mr. Trump, the President is

1 Mueller fnds no collusion with Russia, leaves obstruction question open, Americanbar.org (2019), https://www.americanbar. org/news/abanews/aba-news-archives/2019/03/mueller-concludes-investigation/. 2 Matt Stieb Chas Danner, Everything We Know About Trump’s Ukraine Whistle-blower Scandal, Intelligencer (Oct. 1st, 2019), http://nymag.com/intelligencer/2019/10/everything-we-know-about-trumps-ukraine-scandal.html. 1 No. 2 Above the Law? Fall 2019 asking the Supreme Court to affrm his claim that he is immunized from criminal investigation while he remains in offce.3 Regardless of how one feels about President Trump’s culpability in the Russia probe, Ukraine impeachment inquiry, or hush-money payments investigation, every citizen should be concerned by the concept of a sitting president who is effectively shielded from any criminal proceeding by an obscure memo from the DOJ, impeding the ability of the federal government to charge a president with a crime. The notion that the head of state is above the law is antithetical to the American conception of legal egalitarianism and the rule of law and undermines the legitimacy of the American legal system. Therefore, it is essential – and extremely relevant considering the improbability of President Trump being convicted in the Senate – to conduct a deep dive into the legality of charging a sitting president with a crime and explore the possible legal remedies to the problem of an executive who cannot be indicted.4

II. Offce of Legal Counsel Memo Regarding the Indictment of a Sitting President After two years of secrecy surrounding his investigation into Russian interference in the 2016 presidential election and allegations of coordination between the Russian government and the Trump campaign, as well as into potential obstruction of justice committed by Trump administration offcials, special counsel Robert S. Mueller III testifed in front of the House Committee on the Judiciary and the House Permanent Select Committee on Intelligence. During the Judiciary Committee hearing, in an exchange with Representative Ted Lieu (D-CA), Mr. Mueller suggested that the only reason he did not indict Mr. Trump for obstruction of justice was because of a Justice Department opinion stating that a sitting president cannot be indicted. This claim contradicted the offcial report of the fndings and conclusions of the Special Counsel’s investigation and Mr. Mueller’s own statement in May recounting it, in which he said that he and his team were prevented from deciding whether to charge the president because of the Offce of Legal Counsel’s opinion. Later, during his opening statement of the Intelligence Committee hearing, Mr. Mueller corrected the record by saying, “I wanted to clarify…the fact that we did not make any determination with regard to culpability in any way.”5 The confusion on Capitol Hill over Robert Muller’s testimony was in reference to an opinion from the Offce of Legal Counsel, within the Department of Justice, which contends that a criminal proceeding would impede the ability of the president to perform his constitutionally delegated responsibilities: The indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.6 The OLC also concluded that the prosecution of the president by the DOJ violates the doctrine of separation of powers embedded within the Constitution, as this would usurp Congress of the right to hold the executive accountable and empower the judiciary to sidetrack the president from performing his constitutionally assigned functions.7 The OLC guidelines regarding the indictability of a sitting president has not faced a serious legal challenge. The Supreme Court has heard tangentially related arguments on the issue on several occasions, but in Nixon v. Fitzgerald (1982), the Court held for the frst time that a President “is entitled to absolute immunity from damages liability [in civil proceedings] predicated on

3 Trump v. Vance, Jr., (2d Cir. 2019) (No. 19-3204). 4 Philip Bump, Trump’s Conviction in the Senate is Unlikely - But Not Impossible, (2019), https://www. washingtonpost.com/opinions/trumps-conviction-in-the-senate-is-unlikely--but-possible/2019/10/09/a2572836-eac7-11e9- 9306-47cb0324fd44_story.html. 5 Julie Hirschfeld Davis and Mark Mazzetti, Highlights of ’s Testimony to Congress, Nytimes.com, (2019), https://www.nytimes.com/2019/07/24/us/politics/mueller-testimony.html. 6 Randolph D. Moss, Department of Justice Offce of Legal Counsel, A Sitting Presidents Amenability to Indictment and Criminal Prosecution (2000). 7 Ibid. Undergraduate Law Review at NYU 2 No. 2 Above the Law? Fall 2019 his offcial acts.” Justice Powell stated that this immunity was granted on the basis of the “President’s unique offce, rooted in the constitutional tradition of separation of powers and supported by our history.”8 However, the court did assert that a sitting president could be a defendant in a civil case, unrelated to damages liability predicated on offcial acts as President, in Clinton v. Jones (1997).9 Regardless, the court has reached a conclusion regarding presidential immunization from criminal prosecution.

III. Constitutionality of the OLC Memo The United States Constitution does not directly address the question of whether a president can be indicted. The text of the Constitution approaches this issue in Article I, Section 3: Judgment in cases of impeachment shall not extend further than to removal from offce, and disqualifcation to hold and enjoy any offce of honor, trust or proft under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.10 In this clause, the framers of the Constitution delineate the parameters of impeachment. The text limits the scope of an impeachment proceeding to the removal from offce and the barring of a guilty party from holding any public offce in the future, with no other punitive measures retroactively imposed. However, the party who was convicted by the Senate can be subject to subsequent trial and punishment in the courts for criminal charges. While the text of the Constitution does little to clarify the matter, most legal scholars contend that it implicitly immunizes a sitting president from criminal prosecution because of the structural uniqueness of the presidency.11 Akhil Reed Amar and Brian C. Kalt, Yale Law professors, reinforced this claim in a 1997 piece in the Yale Law School Legal Scholarship Repository.12 In their article titled “The Presidential Privilege Against Prosecution,” they cite Supreme Court Justice Joseph Story, who in 1833 wrote: There are... incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confded to it. Among these, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The President cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his offce...13 In a 1973 Nixon administration memo, the head of the Justice Department’s Offce of Legal Counsel, Robert G. Dixon Jr., also claimed that all federal elected offcials can be indicted and criminally prosecuted while still in offce, with the lone exception of the president; indicting and prosecuting a sitting President would “prevent the executive from accomplishing its constitutional functions” and, this effect cannot “ be justifed by an overriding need” to support appropriate government objectives.14 Dixon further claimed that a criminal prosecution of a sitting president would inappropriately encroach upon his or her capacity to execute the offceholder’s responsibilities. It would violate the separation of powers doctrine and alter the political dynamics of our national government unpredictably by giving unelected bureaucrats, without an explicit constitutional mandate, power over presidential affairs.15 Later, in October of 1973, Robert H. Bork, the solicitor general, presented a court brief that also

8 Nixon v. Fitzgerald, Oyez, https://www.oyez.org/cases/1981/79-1738. 9 Clinton v. Jones, Oyez, https://www.oyez.org/cases/1996/95-1853. 10 U.S. Const. art. I, § 3, cl. 7. 11 Adam Liptak, A Constitutional Puzzle: Can the President Be Indicted?, Nytimes.com (2019), https://www.nytimes. com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html?module=inline. 12 Akhil Reed Amar & Brian Kalt, The Presidential Privilege Against Prosecution, Yale Law School Legal Scholarship Re- pository (1997). 13 Ibid. 14 Moss, supra note 6, at 245. 15 Id. at 226. Undergraduate Law Review at NYU 3 No. 2 Above the Law? Fall 2019 argued that the Constitution renders a sitting president immune from indictment and prosecution, writing that an absence of presidential immunity would make little sense because the President has the power to pardon federal offenders, including oneself. Bork opined: The inference that only the president is immune from indictment and trial prior to removal from offce also rises from an examination of other structural features of the constitution. The framers could not have contemplated prosecution of an incumbent president, because invested in incomplete power over the execution of the laws, which includes, of course, “the power to control prosecutions. And they gave them power to grant reprieves and pardons for offenses against the United States…” A power that is consistent only with the conclusion that the president must be removed by impeachment, and so deprived of the power to pardon, before criminal process can be instituted against him.16 Lastly, in 2000, after Independent Counsel Ken Starr’s investigation into the suicide of deputy White House Counsel and the Whitewater real estate investments of President , Randolph D. Moss, the head of the OLC at the time, reaffrmed his offce’s 1973 conclusion.17

IV. Challenges to the Legal Consensus The predominant view among legal experts is that the president is immune from prosecution so long as he is in offce, concurrent with OLC opinion. However, the legal validity of the OLC is far from being above reproach, and constitutional scholars have continually challenged it. One of the most notable opponents of the view is Eric M. Freedman, a law professor at Hofstra University and the author of a 1999 law review article that laid the legal groundwork for permitting criminal prosecution of incumbent presidents. In his piece, Professor Freedman claimed that this issue divided the framers of the constitution and contended that exempting a sitting president from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustifed by practical considerations.”18 He also mentions that other incumbent federal offceholders, including many judges, have been indicted while in offce and that the courts have rebuffed the argument that impeachment was the only remedy for such offcials.19 Professor Amar of Yale has refuted this claim, stating that it would be nonsensical due to the way in which the Constitution arranges the three branches of government in relation to each other, as well as profoundly undemocratic to indict a sitting president: If you’re going to undo a national election, the body that does that should have a national mandate. Even a federal prosecution would follow only from an indictment from a sitting in one locality.20 Professor Amar maintains that even if the government has some latitude in issuing an indictment against the President, the proper means for evaluating the President’s conduct is through the one stated in great detail in the Constitution: impeachment.21 Amar argues that impeachment is the appropriate means for removing a sitting president because it is the only process legitimated by the Constitution. Additionally, impeachment is not subject to Bickel’s “counter-majoritarian diffculty” because members of Congress in both chambers are duly elected by their constituents, unlike federal judges who have no democratic mandate.22

16 Charles Times, Legal Memos About Whether a Sitting President May Be Indicted, Documentcloud.org, (2019), https:// www.documentcloud.org/documents/3896903-Legal-Memos-About-Whether-a-Sitting-President.html#document/p42. 17 Justice.gov (2019), https://www.justice.gov/fle/19351/download. 18 Eric M. Freedman, “On Protecting Accountability,” Hofstra Law Review: Vol. 27: Iss. 4, Article 3 (1999). 19 Liptak, supra note 11. 20 Ibid. 21 Ibid. 22 Lawrence Solum, “Legal Theory Lexicon: The Counter-Majoritarian Diffculty,” Legal Theory Blog (2019), https://lsolum. typepad.com/legaltheory/2012/09/legal-theory-lexicon-the-counter-majoritarian-diffculty.html. Undergraduate Law Review at NYU 4 No. 2 Above the Law? Fall 2019 However, the framers of the Constitution did not anticipate the unprecedented levels of factionalism and polarization in Congress, which renders legislators unable to adjudicate fairly in an impeachment proceeding.23 This is why Professor Edward B. Foley, director of the Election Law program at the Ohio State University’s Moritz College of Law, contends that lawmakers should remove President Trump for his attempt to solicit foreign interference in the 2020 election, but at the same time, allow him to seek re- election next year. Foley claims that decoupling removal from offce from disqualifcation to run “lowers the stakes and changes the constitutional calculus” for party loyalists and those facing a primary challenge in the Republican senatorial caucus.24

V. Possible Legal Remedies Several potential legal remedies exist to the problem of the non-indictable executive. While the OLC guideline pertains exclusively to the DOJ, it remains unclear if a state or other subnational governmental entity could theoretically pursue charges against a sitting president for the violation of a state or local statute. Additionally, whether a president can be named as an unindicted co-conspirator remains an unsettled question.25 The 1982 Supreme Court case Nixon v. Fitzgerald, which established a precedent for presidential immunity from civil suits, left the issue of whether the chief executive is immune from criminal prosecution unresolved.26 The unsettled nature of this question generates an interesting theoretical question: do the Justice Department’s regulations necessitate a strict adherence, which “focus more on administrative protocols and procedures than on legal analyses, arguments or judgments?”27 If prosecutorial discretion is the only impediment to charging a president with the violation of a federal statute in court, the case of United States v. Trump may not be as far off as we might have assumed.28 However, in the event that prosecutorial discretion is actually not the prime determinant of whether a president can be held criminally liable, a number of other theoretical legal remedies have been proposed to deimmunize the President. One such remedy suggests extricating the Offce of the Special Counsel from the auspices of the DOJ and making it an independent actor in order to avoid violating the separation of powers doctrine and creating the awkward and constitutionally unexplored scenario of having an executive agency indicting the head of the executive branch.29

VI. Conclusion Due to a litany of constraints and complications, the federal government has refrained from bringing criminal charges against a sitting president. These limitations range from the potentiality of inhibiting the president from performing his constitutionally mandated function or violating the constitutionally enshrined doctrine of separation of powers, and the lack of clarity regarding protocol for how an executive agency would go about charging the head of the executive branch, directly contradicting the federal law enforcement agency’s own internal policy. To this day, it remains unclear how exactly a president can be held accountable for his actions while in offce in an era in which the impeachment process is broken due

23 Cynthia R. Farina, “Congressional Polarization: Terminal Constitutional Dysfunction?”, COLUMBIA LAW REVIEW: Vol. 115: Iss. 7, (2015). 24 Alexandra Glorioso, “Congress Should Remove Trump from Offce, But Let Him Run Again in 2020,” POLITICO Maga- zine, (2019), https://www.politico.com/magazine/story/2019/09/25/congress-should-remove-trump-from-offce-but-let-him- run-again-228228. 25 “Indicting a President Is Not Foreclosed: The Complex History,” Lawfare (2019), https://www.lawfareblog.com/indict- ing-president-not-foreclosed-complex-history. 26 Nixon v. Fitzgerald, 457 U.S. 731 (1982) 27 “The Road to United States v. Trump is Paved with Prosecutorial Discretion,” Take Care Blog, (2019), https://takecareblog. com/blog/the-road-to-united-states-v-trump-is-paved-with-prosecutorial-discretion. 28 Ibid. 29 Moss, supra note 6. Undergraduate Law Review at NYU 5 No. 2 Above the Law? Fall 2019 to hyperpolarization. President Trump’s lawyer recently claimed, in front of the U.S. 2nd Circuit Court of Appeals in New York, that immunity for a sitting president extends to the entire criminal justice process.30 Trump’s contention that the presidency immunizes him from all criminal proceedings is antithetical to the intent of the framers who were fearful of an outsized executive, and is incompatible with country’s value of equality before the law.31

30 Shawn Langlois, Trump could shoot someone, and police couldn’t investigate it, lawyer says. MarketWatch (2019), https:// www.marketwatch.com/story/president-trump-could-shoot-someone-and-he-wouldnt-go-to-jail-lawyer-says-2019-10-23. 31 Freedman, supra note 18. Undergraduate Law Review at NYU 6