Hastings Constitutional Law Quarterly Volume 20 Article 2 Number 1 Fall 1992 1-1-1992 The Law as King and the King as Law: Is a President Immune from Criminal Prosectuion before Impeachment Eric M. Freedman Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Eric M. Freedman, The Law as King and the King as Law: Is a President Immune from Criminal Prosectuion before Impeachment, 20 Hastings Const. L.Q. 7 (1992). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol20/iss1/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment? By ERIC M. FREEDMAN* Table of Contents Introduction ................................................... 8 I. The Original Intents ................................. 15 II. The Historical Practice ............................... 22 A. The Federal Executive Branch ......................... 22 B. The Federal Judicial and Legislative Branches .......... 24 1. The Federal Judicial Branch ....................... 25 2. The Federal Legislative Branch ..................... 30 C. Federal Prosecution of State and Local Officials ......... 33 D. State-Level Practice ................................... 37 III. Theoretical Considerations ........................... 39 A. The Dual Nature of the Impeachment Clause .......... 41 B. The Rule of Law ...................................... 46 1. Civil Immunity .................................... 46 * Assistant Professor of Law, Hofstra University School of Law. J.D. 1979, B.A. 1975, Yale University; M.A. 1977, Victoria University of Wellington (New Zealand). This Article has had an unusually long gestation period. See Eric M. Freedman, 2 Routes to the Agnew Inquiry: Their Virtues and Perils, N.Y. TIMES, Oct. 6, 1973, at A22 (letter to the editor arguing that President or Vice President may be indicted while still in office); see also Eric M. Freedman, PresidentialParadox, NAT'L L.J., Aug. 12, 1991, at 17 (summarizing argu- ment presented here). During the earlier part of that period, the work benefitted particularly from conversations with those who strongly disagreed with its thesis, especially Robert H. Bork and Martin D. London. More recently, it was the subject of a great deal of constructive commentary from my colleagues when it was presented to a Hofstra Law School faculty workshop. I am particularly grateful to Andrew Schepard and Wendy M. Rogovin. Richard K. Neumann, Edward Chikofsky, and John D. Gregory read drafts and contributed many helpful suggestions. I have also been fortunate in the diligence and enthusiasm of my research assistants, Wil- liam E. Schetlick, Richard C. Schoenstein, and Edward Teitelbaum, of the Hofstra Law School Class of 1990; Paul Reiser of the Hofstra Law School Class of 1991; and Steven Wein- stock and Jonathan Farrell of the Hofstra Law School Class of 1992-as well as in the devoted secretarial assistance of Nancy A. Grasser. My efforts were partially underwritten by research funding from Hofstra University and the generous logistical support of Yale Law School. HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 20:7 2. The Law as Fence and Crown ...................... 49 IV. Practical Considerations .............................. 51 A. The Removal Objection ............................... 51 B. The Harassment Objection ............................. 59 1. Historical Judicial Protection ....................... 59 2. Self-Protection ..................................... 64 3. Future Statutory and Judicial Protection ............ 65 C. The Intrusiveness Objection ............................ 67 Conclusion ...................................................... 68 Introduction Our Presidents and Vice Presidents are frequently accused of poten- tially criminal misconduct.1 For instance, serious inquiries have been made into the activities of Presidents Reagan 2 and Bush3 during this 1. See RESPONSES OF THE PRESIDENT TO CHARGES OF MISCONDUCT at xii (C.V. Woodward ed., 1974); David Johnston, Bush Pardons 6 in Iran-Contra Affair, Aborting a Weinberger Trial; ProsecutorAssails 'Cover-Up,' N.Y. TIMES, Dec. 25, 1992, at Al (independ- ent counsel accuses President Bush of misconduct in belated production of documents; says inquiry, which may include interview of Bush, ongoing). 2. In early 1987, high officials of the Reagan Administration were concerned that the President had been personally involved in the illegal diversion to the Nicaraguan Contras of the proceeds of the sale of arms to Iran, a concern that was eventually defused when the National Security Advisor at the time, Admiral John Poindexter, testified that he had ap- proved the diversion without the President's knowledge. See Joel Brinkley, Birth of a Scandal and Mysteries of Its Parentage,N.Y. TIMES, Dec. 25, at A23; David Johnston, Meese Testifies that Impeachment Was a Worry, N.Y. TIMES, Mar. 29, 1989, at A17. Several pending prose- cutions raise the issue of whether President Reagan or any of his top advisors lied during the effort to absolve him of responsibility. See Walsh is Said to be Mulling Reagan Charges,WALL ST. J., July 27, 1992, at A12 (describing speculation that Iran-Contra independent counsel Lawrence Walsh might indict former President Reagan for covering up American role in No- vember 1985 shipment of Hawk missiles to Iran); David Johnston, In Iran-Contra Inquiry, New Interest in Reagan Aides'Actions, N.Y. TIMES, July 12, 1992, at A17 (stating that since perjury indictment of former Secretary of Defense Casper Weinberger focus of Iran-Contra inquiry has been on evidence that top officials may have improperly tried to conceal Presi- dent's actions); David Johnston, Iran-Contra Inquiry Turns to Top Reagan Officials, N.Y. TIMES, June 26, 1992, at A17; NEW YORKER, Dec. 30, 1991, at 23. 3. There have been a series of questions raised as to whether George Bush, (I) as a vice- presidential candidate was involved in a plan to persuade the government of Iran not to release its American hostages until after the 1980 election, so that the Republican ticket would not be confronted with an "October surprise," or (2) as Vice President knew of the illegal diversion of funds to the Contras. See CIA Documents Raise New Questions About Bush's Knowledge of Iran-Contra,WALL ST. J., Sept. 30, 1992, at A16; Walter Pincus, Bush 'Out of the Loop' on Iran-Contra?,WASH. POST, Sept. 24, 1992, at Al; On 1980 Deal With Iran, Read Bush's Lips, N.Y. TIMES, Nov. 17, 1991, at E16 (letter to editor); Leslie H. Gelb, Iran-Contra,the Movie, N.Y. TIMES, Oct. 6, 1991, at E17; Richard L. Berke, Inquiry is Ordered on 1980 Campaign, N.Y. TIMES, Aug. 6, 1991, at Al; Nightline: The October Surprise (ABC television broadcast, June 20, 1991); NEW YORKER, June 17, 1991, at 27; Cameron Barr, Stranger than Fiction, AM. LAW., Dec., 1990, at 70; David Johnston, Tough Callfor Bush: A PresidentialPardon for Poindexter?,N.Y. TIMES, Apr. 9, 1990, at A13; see also David Johnston, A Broader Role for Fall 19921 THE LAW AS KING AND THE KING AS LAW country's intertwined dealings with the government of Iran and the Nica- raguan Contras during the late 1980s. 4 The frequent investigations examining the possibility of executive misconduct suggest the country eventually will have to face a major and hitherto unresolved issue: May Presidents and Vice Presidents be in- dicted while in office? During Watergate,5 lawyers for both President Nixon and Vice President Agnew asserted that those officials could not be required to Bush Hinted in Iran Affair, N.Y. TIMEs, Aug. 26, 1992 at A14; Neil A. Lewis, Panel Rejects Theory Bush Met Iraniansin Parisin '80, N.Y. TIMEs, July 2, 1992, at A16 (discussing House October Surprise Task Force interim report whose only conclusion was that Bush did not hold alleged meeting). See generally NEw YORKER, July 29, 1991, at 21. In addition, a number of members of Congress have demanded an investigation into this country's relationship with Iraq prior to the Persian Gulf War, an inquiry that could also implicate President Bush. See Elaine Sciolino, Iraq Policy Still Bedevils Bush as CongressAsks: Were Crimes Committed, N.Y. TIMEs, Aug. 9, 1992, at A18; William Saire, ObstructingJus- tice, N.Y. TIMES, July 9, 1992, at A21 (charging that the White House, as part of "a pattern of obstruction of justice and lying to Congress," concealed support for Iraq in 1989 and improp- erly sought to influence federal prosecution of an Atlanta bank charged with assisting Iraq in misapplying federal agriculture loans for military purposes). Their request for an independent prosecutor was denied by Attorney General William Barr, see N.Y. TIMES, Aug. 15, 1992, at A18 (criticizing this decision); cf. Terry Eastland, Thanks to Barr, No Lawrence Walsh for Iraqgate, WALL ST. J., Aug. 26, 1992, at A7 (defending decision), but received the support of candidate Bill Clinton, see William Safire, A Smoking Gun?, N.Y. TIMES, Sept. 10, 1992, at A23. 4. While these issues remain unresolved at present, one thing that may be said with certainty is that we do not as yet know the full story of these events. See HAROLD HONJU KOH, THE