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Full Text: Is a Sitting President Subject to Compulsory Criminal Process?

By Federal News Service
Wednesday, September 9, 1998

Following is the full text of a hearing of the Constitution, Federalism and Property Right Subcommittee of the Senate Judiciary Committee held Wednesday, September 9. The hearing was chaired by Sen. John Ashcroft (R-Mo.) Speakers on the first panel were Jonathan Turley, George Washington Law School, Susuan Low Bloch, Georgetown University Law School, Eric Freedman, Hofstra University School of Law and Akhil Amar, Yale Law School. The second panel consisted of Peter Rient, Gainer Rient & Hottis, Frank Teurkheimer of Madison, Wisconsin, and Douglas Cox of Gibson, Dunn & Crutcher.

SEN. ASHCROFT: (Sounds gavel.) Good morning, and welcome to this morning's hearing. I have decided to go forward with the hearing. Senator Torricelli has indicated that he will be here shortly, and I've conferred with his staff, and they have indicated that it would be proper for us to begin.

We meet today to explore crucial constitutional questions regarding the office of the president of the United States, and any presidential or potential presidential criminal misconduct; namely, this particularly hearing, impeachment or indictment, "Is a sitting president subject to compulsory criminal process?"

One might think that a question so central to our constitutional framework would have been answered definitely a long time ago. Well, that's not the situation. That this question remains an open one tells us a great deal about the character of this country and those who have occupied its highest office. Fortunately the prospect of impeachment seldom troubles this nation. As a result, there are fundamental questions about the president's standing under the criminal law that remain unanswered.

Sadly, this president's confessed misconduct forces the country to confront issues that we might rather leave unexamined. When confronted with grave allegations of presidential misconduct, allegations that involve both indictable offenses and impeachable conduct, the options available to address that misconduct should be explored.

Let me take a moment to summarize my preliminary view at the outset, with the strong qualification that I remain open to persuasion. Based on a review of the Constitution, legal commentary, court ruling, and the written testimony that has been submitted for today's hearing, I enter the hearing with two preliminary thoughts. My first preliminary thought: the president would appear to be subject to the compulsory process of the criminal law. Put simply, the Constitution and our history appear to reflect the fundamental principle that no man is above the law. The president is subject to the law, not above it. If he violates the law, he can be prosecuted.

But there is a second important question, and that is this: Assuming a president can be prosecuted, should he be prosecuted, when impeachment is a viable option? I think not. Prudence dictates that absence extraordinary circumstances, that when impeachment is available to address presidential misconduct, prosecution should await the resolution of the impeachment question by the Congress.

The prudential factors favoring impeachment over indictment should influence both prosecutors and the Congress. Just as a prosecutor may deem it wise to forgo the option of indictment when underlying criminal conduct is also an impeachable offense, so too the Congress must act promptly when confronted with serious allegations of impeachable conduct. The nation's business demands that our president be exonerated or impeached with all dispatch -- not left to twist in the wind while legislators campaign for reelection.

Although a criminal indictment and prosecution may not be the most appropriate response to the president's misconduct, the questions before this hearing have clear, practical implications for the painful circumstances into which President Clinton's confessed conduct has thrust this country. The most obvious practical implication is that the president can be subpoenaed to a grand jury and required to answer its questions. I believe the president, like all Americans, must answer a subpoena and reply truthfully to proper questions posed in a court or before a grand jury. Had this been made clear prior to the onset of the current scandal, and a consensus attained on this point, the country and presidency could have been spared the pain and injury inflicted by President Clinton's repetitive and frivolous assertions of privilege and immunity for himself and others.

Today's hearing should also shed light on the scope of impeachable offenses and the role of the grand jury and grand jury secrecy in a case where indictment is unlikely. This morning's hearing provides an important opportunity to secure the views of scholars and other authorities on all these pressing issues before the House addresses the momentous decision of whether to open a formal inquiry.

In commenting on the options to address presidential misconduct, many proceed on the assumption that impeachment is the exclusive avenue for addressing presidential misconduct. For example, Judge Bork, whom we invited to appear today, reached this conclusion many years ago when the Justice Department considered the options for prosecuting Vice President Agnew. But Judge Bork's view is not the unanimous view of legal scholars. Indeed, we have a panel full of legal scholars ready to take sharply different views from each other, and some from Judge Bork, on this question.

I would emphasize that this question needs to be approached on two levels: first, as a constitutional matter, can the president be indicted? And, second, as a prudential matter, should the president be indicted if impeachment remains a viable option? I grant that the first question is close and difficult. But the better view seems to be that as a legal matter the president is subject to the criminal law.

The text of the Constitution does not address the question directly, and the reported views of the Founders are mixed. However, I believe that the Constitution's silence on executive immunity is important, because the Constitution does directly address the question of limited immunity for senators and representatives, and it provides thus a limited immunity. The Founders clearly knew how to write immunity into the Constitution, and did not grant the president any blanket immunity from the criminal process.

Those who claim that the president is immune from the criminal process focus on the provision of the impeachment clause which specifies that indictment and criminal punishment may follow impeachment. However, the fact that indictment "may" follow impeachment is in no way a suggestion that indictments must follow impeachment. Indeed, a number of federal judges have been indicted and convicted prior to impeachment. And the clause draws no distinction between judges and the president. In the end, this provision seems primarily designed to clarify that there is no due process or double jeopardy obstacle to imposing punishments through the criminal process if and after impeachment has been undertaken..

Perhaps the best constitutional argument in favor of presidential immunity is the notion that the unique attributes of the office of president make it impractical for him to be subject to the ordinary criminal process. But the argument that there is an implicit immunity from prosecution in Article 2 of the Constitution has several problems. First, the Supreme Court, in cases like Morrison v. Olsen and Clinton v. Jones, has expressed little sympathy for the argument that Article 2 provides for a unitary executive who has exclusive control over federal prosecutions and who cannot be distracted from his official duties to comply with the legal process. Second, there are practical difficulties. What if the president's party has a firm control over the legislative branch? Is the president completely above the law as long as he has a complicit Congress, of his party or of another?

Another practical difficulty with the argument that impeachment is the exclusive remedy for presidential misconduct is that the scope of indictable and impeachable conduct is not the same. If every impeachable act were an indictable offense, and vice versa, it might make some sense to conclude that impeachment is the sole remedy. However, if there are acts that are criminal offenses but do not involve impeachable conduct, then impeachment and indictment are not substitutes; they are not exchangeable. If for example, as Professor Freedman sites in his law review article, a crime like drunk driving does not constitute impeachable conduct, then presidential immunity means that the president cannot commit a clear criminal violation -- pardon me -- then the president -- then presidential immunity means that a president can commit a clear criminal violation with impunity.

The founding generation had an abiding belief that we are a government of laws, not men, and that having rid ourselves of the king no American should be above the law. These profoundly American values, along with the absence of a textual immunity in the Constitution, lead me to the tentative thought that the president can be indicted. But that is only half the analysis. Equally important is the question of whether, even assuming a sitting president can be indicted, whether a sitting president should be indicted, as long as impeachment remains an option. This is a question of prudence rather than of constitutional law. It is a question of judgment, not of law or whether or not there is authority. On this question I think the answer is crystal clear: as long as impeachment remains a viable option, impeachment should be the preferred course.

The act of disciplining a popularly-elected president is such an awesome task, that it ought to be carried out by the most popularly- responsive mechanism possible. The Founders expressed similar sentiments in rejecting the notion that the Supreme Court rather than the Senate should try impeachments. In the Federalists 65, Alexander Hamilton argued, and I quote, "The awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons."

However, just as prudence dictates that a prosecutor should defer to Congress, when impeachment is an option, prudence also demands that Congress not shrink from its responsibilities. Quote, "The awful discretion," Hamilton talked about cannot be put on hold until a more convenient time. Allegations of presidential misconduct cannot be allowed to go unresolved. Impeachment is the preferred option when the Congress has the will to perform its constitutional duty.

I look forward to this morning's hearing as an opportunity to explore these issues further and to test the tentative conclusions I have reached. We have assembled a great deal of legal intellect and firepower here today to examine these questions. Our first panel will consist of a group of law professors and legal scholars with divergent views on the issues. Professor Freedman, who has written the most comprehensive law review on the issue, and Professor Turley, conclude that the president is subject to the compulsory criminal process; while Professors Bloch and Amar argue that he is immune from indictment.

Our second panel involves individuals who have in one capacity or another had to confront this question: Doug Cox was responsible for determining the scope of executive power when he served as the deputy assistant attorney general for the Office of Legal Counsel; while Frank Teurkheimer and Peter Rient confronted this question when they served as assistants to Watergate's special prosecutor, Leon Jaworski. Mr. Rient was one of four of Jaworski's deputies who authored a memorandum to Jaworski, arguing that there was no constitutional obstacle to the indictment of President Nixon. In the end Jaworski decided to defer to the impeachment proceedings against President Nixon which the House had already begun.

My preliminary view is similar to that expressed by Leon Jaworski in his memoirs.

He wrote that while he had tentatively concluded that the president could be indicted for certain conduct -- such as murder he said -- that when the underlying criminal conduct was already under investigation by the House, the prudent course was clearly to defer to the impeachment proceedings rather than forced a constitutional confrontation over the indictment question. And that conclusion seemed correct then, and it appears to me to be correct now.

I'm pleased now to call upon the senator from New Jersey, Mr. Torricelli, for his remarks.

   


SEN. ROBERT TORRICELLI (D-NJ): Thank you, Senator, very much for holding this hearing and for giving me the opportunity to share, if only briefly, a few thoughts before we hear from our witnesses.

Our hearing is held in the backdrop of a potential crisis in the interpretation of the United States Constitution. There is little business that comes before this Senate that is more serious than the exercise of its responsibilities to receive from the House of Representatives a recommendation for impeachment.

It is not at all clear that this Senate will reach that point, but it is clear that there are differences of constitutional interpretation that make the exercise of our constitutional responsibilities potentially problematic. I therefore believe that the committee has met its responsibilities by considering this question, bringing experts forward, and beginning in reaching some conclusions to prepare for that eventuality.

It is, however, also, I think, worth noting that there is some reason to believe that the question immediately before the committee could be academic. Mr. Starr has clearly reached a decision to send a report to the House of Representatives. There is no indication that he is of a mind to proceed with an indictment on any charge before doing so or before the House of Representatives, and then the Senate might act.

That, however, does not mean that this debate is moot. It is important not only because events could change, but because the issue could be revisited in a future administration in other years. A power this fundamental to the exercise of responsibilities in this government should not remain undefined. I believe, therefore, what we do is important even if it only has relevance in an unforeseen administration in undefined events at another time.

I also believe that we are challenged by the founding fathers in the degree of confidence that was given to the United States Senate in the exercise of some of these responsibilities. Having had few opportunities to actually live up to those responsibilities, it is best we do so now.

I, too, Senator Ashcroft, will begin by quoting Federalist Paper 65 where Alexander Hamilton notes, and I quote, "Where else but in the Senate could have been found a tribunal sufficiently dignified or sufficiently independent? What other body would be likely to feel confident enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?"

This could have simply been a compliment, which I think all of us in the Senate would believe would, by necessity, be well-founded. It might, however, represent more than that, a belief that there was no other institution in the country sufficiently independent or well- established to sit in judgment of a president of the United States. It therefore arguably could go to the central question of this hearing. The power to judge a president properly by design of the founding fathers rests and may rest exclusively in the United States Senate.

Hamilton further argues, and I quote in number 65, "The subjects of jurisdiction are those offenses which proceed from the misconduct of public men," or, in other words, from the abuse or violation of some public trust. "They are of a nature which may be peculiar, proprietary, be dominated by political as they relate chiefly to injuries done immediately to the society itself." In my own interpretation, it would seem to me to mean that offenses by a president of the United States are to the body public in its entirety and therefore need to be judged not as narrow abuses against a criminal law but against the body politic; sitting in judgment, the United States Senate.

I think, finally, it also worth noting that the framers, in designing this constitutional process, did so against the backdrop of an impeachment proceeding in the House of Lords of Edmund Burke. That trial represented much of the framers' understanding of the impeachment powers and the difficulties that such a situation would bring to our own society.

In that trial, therefore, I think it is worth noting that in Hastings' trial, Edmund Burke, who was presenting the arguments, said, and I quote, "It is by this tribunal that statesmen who abuse their power are accused by statesmen, not upon the niceties of a narrow jurisprudence but upon the enlarged and solid principles of state morality," giving foundation, I believe, to the belief that the offenses of a president are against the people and the larger political culture and not an individual criminal offense.

Given this enormous responsibility, it is incumbent upon us, I think, to receive, however, all constitutional interpretations and historic references. No one argues that any man is above the law. The Constitution of the United States provides for no immunity for anyone against the criminal law of the United States simply because they occupy the position of chief executive.

It is my judgment, rather, that the Constitution provides that the House of Representatives provide for impeachment, the United States Senate sit in judgment, as a condition precedent to someone who occupied the presidency of the United States appearing before the criminal law; that any indictment would have to follow impeachment and an action by the United States Senate to remove a person from the presidency.

I believe this interpretation, based on these historic accounts, interpretations though limited to date, because I believe the founding fathers not only shared this judgment that criminal activity by a president was an offense generally against the body politic, that a political body must sit in judgment, but that they also understood that proceeding with a criminal trial against a president of the United States without impeachment would not only involve a problem with the separation of powers, a potential conflict between the divisions of the United States government, but also a potential paralysis of the government itself.

Indeed, it could be argued, if they did not have this concern and did not share my interpretation, why it is they would not have provided for the courts themselves to sit in judgment of a president and impeachment. There was no reason to give this power to the House of Representatives and then the United States Senate rather than the Supreme Court or some other tribunal of the federal courts other than an expression of concern about this conflict and the potential paralysis.

But if, indeed, they also believed that a president should not be subjected to the criminal law but should only be impeached, they could have provided for immunity. They did neither, which would appear to me to make clear their intentions to provide for criminal prosecution after impeachment, but also to make impeachment a necessary condition of having an equal branch of government exercise its own responsibilities.

These are, however, admittedly questions that, even if I come to them with some prejudice, are sufficiently open interpretations that this hearing provides a worthwhile service to the country and the United States Senate before events in the coming weeks proceed any further.

I am, therefore, grateful, Mr. Chairman, that you have proceeded with these witnesses and the scheduling of this hearing.

SEN. ASHCROFT: I thank the senator from New Jersey for his thoughtful comments and appreciate the perspective that he brings to this issue.

Before turning to our first two panels, I would like to note that the subcommittee has also received testimony from a number of other individuals who could not appear with us today. They could not appear in person, so they appear in writing. We've received testimony from former Attorney General Meese and his associate, Todd Gaziano (sp).

We've also received testimony from Professor Laurence Tribe of Harvard Law School and from former Independent Counsel Lawrence Walsh. Judge Walsh's testimony is noteworthy for his description of the efforts that were made by his office and by President Reagan to avoid any confrontation over presidential testimony. I would ask that the written testimony be inserted in an appropriate place in the record.

SEN. TORRICELLI: Mr. Chairman, could I ask unanimous consent that Senator Feingold also be provided the opportunity to have a written statement placed in the record at this point?

SEN. ASHCROFT: I'm very pleased to do that. I regret that pressing matters have come to the floor that prevent him from being here. And I'm very pleased, at least from my perspective, to agree to that. So without objection, these inclusions in the record with the opportunity for Professor Feingold to -- Professor -- (laughter) -- Senator Feingold -- I elevated him -- to make a contribution would be part of the record as well.

I would like now to introduce our first witness, Professor Eric Freedman. Professor Freedman has written the most comprehensive Law Review article on the subject of presidential immunity, and we're pleased that he would make the trip down from Hofstra University Law School to testify this morning.

Professor Freedman, if you would come forward and others. Professor Akhil Amar has taught constitutional law at Yale Law School for the past 13 years, and we're glad that you would come down from New Haven, as long as we're describing the trips that are being made. Professor Jonathan Turley teaches at the George Washington University Law School, and thank you for joining us this morning. Professor Susan Bloch is a former clerk to Justice Thurgood Marshall and has taught constitutional law at Georgetown University since 1983. So if you all would please assume your positions at the witness table, I would be grateful.

May I suggest that we hear from each of these individuals and then, after all have testified, we would be involved in questioning. If you would begin, Professor Freedman.

MR. FREEDMAN: Thank you, Mr. Chairman. Senator Torricelli, good morning. I'm Eric Freedman. I'm a professor of law at Hofstra University School of Law in Hempstead, New York. And as the chairman mentioned, I've had a long-standing interest in this subject. I've been in print on it since the Nixon administration, and most recently in the comprehensive article that has been submitted for the record, which I'm not sure I can quite encourage you to read in full, but at least know that there are footnotes there to back up the things that I'll say more briefly this morning.

SEN. ASHCROFT: Professor Freedman, I'm going to suggest that we ask you to try and address, and other witnesses, confine your remarks to between five and seven minutes, because I do -- having looked over your submitted materials, I know that you could keep --

   


MR. FREEDMAN: I wouldn't think even to begin to summarize all the points, Senator. But I would like to start out by saying that this issue that brings us here today, although I know it's customary for people to say this in congressional hearings, really is non- partisan and non-ideological, partly because we are thinking in the long term and partly because we've been lucky in recent history that the potential presidential targets of indictment have been both Republicans and Democrats and that the presidency and the Congress during those years were under the control of different parties.

But, of course, that may not always be true. And that's one key reason why the indictment and impeachment remedies can and should co- exist, both because they serve different purposes and are appropriate for different sorts of offenses, and because the simultaneous existence of both provides valuable flexibility to our overall political structure. And to deprive the system of that flexibility may lead to numerous practical problems.

First of all, it means that every criminal problem of a president, if it's reasonably serious, necessarily will need to be looked at in the impeachment forum, which is what Senator Torricelli has suggested and what Professor Amar has suggested, but which may not be appropriate.

For example, the House Judiciary Committee concluded that there was strong evidence that President Nixon had committed tax evasion by backdating a document but refused to vote an article of impeachment about this on the grounds that impeachment should be reserved for offenses that only a president can commit and anybody can backdate a document to commit tax evasion. That may well be a sound conclusion about impeachment and only 34 senators need to share it for it to prevail.

But if the president did commit tax evasion, or for that matter if he didn't, that would certainly be a matter that should be resolved promptly and publicly. Quite apart from the very political implications of the public knowing the resolution, if you do otherwise, as Professor Tribe suggests in his letter to the committee, that might be unfair to the president as defendant; and, on the other side, the passage of time might easily make a successful prosecution impossible.

And allowing the criminal system to function in its normal way, including as Senator Ashcroft rightly emphasizes, normal use of prosecutorial discretion, may be much in the public interest.

If, to pick up on that example, a president drives drunk, then it would be entirely appropriate to convict him, fine him, send him to drunk driving school or whatever, because that would be on every level a very fine civics lesson. And there is no reason to dream up an absolute rule of constitutional immunity which would deprive the country of that possibility.

Now, most people who take the other side have said, come on, be practical; you mean to put the president in jail, you mean to put the president at the mercy of any gun-slinging local prosecutor who comes along? And so I thought I would use my few minutes to address those two practical points and then just respond to the questions.

On the jail issue, as I suggest in my written statement, that's largely a bogeyman. First of all, as in the drunk driving example, the most appropriate case for criminal prosecution instead of impeachment is likely to be one in which the crime is relatively less serious and so jail is not a likely sentence in any event. But the more serious the crime and the more likely therefore it is that the president would be facing impeachment, the more likely it is that he or she will be cooperating with the criminal process rather than defying it. And under the 25th Amendment, if the president has to serve a jail term, notwithstanding the creativity of federal judges in sentencing, and if that disables him or her from serving, then there are both voluntarily and involuntary mechanisms for removal.

And we don't have to resort to theoretical speculation about this. There is a very rich history of presidents being required to appear as witnesses. And the issue of how to enforce a requirement like that is no different than the issue of how to enforce a criminal sentence.

In fact, as I say in the article, long after the Aaron Burr subpoena case, the attorney general of the United States argued in very strong terms that that case had been wrongly decided because, he said, what, would you put the president into dungeon? The Court was wrong way back then 70 years when it decided Aaron Burr. But that view has been soundly rejected by many, many cases, most notably, of course, with respect to Richard Nixon.

The courts have required unwilling presidents to provide evidence, believing, first, that if push comes to shove, they would be able to formulate an appropriate course of sanction; second, that the president would deem the costs of resistance too high -- that's the point about incentives to appear to be cooperating -- and third, that defiance of a court order in that context would itself be an impeachable offense.

And so the result has been for nearly 200 years now a series of court orders in some cases and agreements in many others that result in presidents having to testify -- and all in a context where constitutional immunity has been rejected -- and yet without ever pushing the matter to sending the president to jail. And that's very likely exactly what would happen in the criminal context.

In that regard, presidents who testify have always had to prudently assume that since the question is undecided, they would potentially face criminal prosecution if they testified falsely, but they've done it anyway.

And similarly, on the merit-less prosecution point, there is a lot that Congress can do. And even if Congress does nothing, the president would, under existing law, be able to remove to federal court, would be entitled to bring a federal action to enjoin it. But in fact the Congress probably should do several things when it next considers the independent counsel statute, or other things that Lawrence Walsh has suggested in his testimony, that might solve the practical problems.

And I would suggest to you that one way to stop the Supreme Court from making up an immunity would indeed be to consider those problems. And, as former Attorney General Meese suggests, the likelihood that all kinds of nuanced doctrines of good policy, such as Professor Tribe suggests in his letter, will be written into the Constitution by the Supreme Court, increases to the extent that the Senate and the House don't sit down and look at the practical problems and come to reasonable conclusions.

The only issue here is, is there blanket immunity in the Constitution covering everything from drunk driving to killing a rival in a dual, and the answer to that should be no. And then, you know, we can sort of work on the details, after concluding, I think, that the idea that there is an absolute immunity is inconsistent with the history, structure and underlying philosophy of our government and -- (inaudible) -- precedent and unjustified by practical considerations.

Thank you.

SEN. ASHCROFT: Thank you, Professor Freedman.

I'm pleased now to call upon Professor Amar from Yale University Law School. Professor Amar.

MR. AMAR: Thank you, Mr. Chair, members of the subcommittee.

My name is Akhil Reed (sp) Amar. I'm -- (name inaudible) -- professor of law at Yale Law School, where I have taught constitutional law for the last 13 years. I have written three books and close to 100 articles on general topics in constitutional law.

In 1996 my student Brian Colt (sp) and I co-authored an article explaining that a sitting president is constitutionally immune from ordinary criminal prosecution, state or federal, but is of course subject to ordinary prosecution the instant he leaves office, a prospect that can obviously be hastened by impeachment. Today I'll try to summarize my reasons for continuing to believe this.

The issue, as I understand it, concerns not Bill Clinton, the man, but the institution of the presidency. The rules laid down by the framers apply equal to Democrats and Republicans, liberals and conservatives. I never asked Brian Colt about his party affiliation and we drafted our article before the 1996 elections, not knowing who would be president thereafter and not knowing when this momentous question would next be on the national agency.

In analyzing this and other constitutional questions, I often try to reserve existing partisan polarities in my mind, so as to arrive at a result and reasoning process un-tinged by current political preference. I would invite the senators and the administration to do the same thing. Constitutional law shouldn't be partisan.

The position Brian and I put forth -- that a sitting president may only be criminally tried in this court, the Senate, sitting in impeachment, and can be criminally tried elsewhere only after he has left office -- has a very distinguished and bipartisan pedigree:

It's the position put forth in passing in two Federalist Papers, Numbers 69 and 77.

It's the position clearly taken by both John Adams and Thomas Jefferson, men who disagreed about many other things, who both risked their lives to fight against monarchy and who both deeply believed in the rule of law.

It's the position clearly set forth in the first Congress by Senator Oliver Ellsworth (sp), a Philadelphia framer, the author of the Judiciary Act of 1789, and later chief justice of the United States.

It's the position that makes the most sense of the analysis of the great Justice Joseph Storey (sp) in his landmark 1833 treatise on the Constitution.

It's the position articulated in the Supreme Court as early as 1867 by Attorney General Stan Berry (sp) and the traditional position of the Justice Department.

It's the position taken 25 years ago when Richard Nixon was president by two of my own teachers at Yale Law School, Robert Bork and Charles Black. In the symposium in which the Amar-Colt article appeared, our views were largely in sync with of most -- but not all -- but most, of the other participants, including my distinguished friend Terry Eastland.

Apart from those points about history and tradition, my basic constitutional argument is more structural than textual, sounding in both separation of powers and federalism. Other impeachable officers -- vice presidents, Cabinet officers, judges, justices -- may be indicted while in office. But the presidency is constitutionality unique. In the president, the entirety of the power of a branch of government is vested. And so the language of impeachment in the Constitution sensibly means something different as applied to presidents on the one hand and other officials on the other, an analogy that may be helpful to the members of this subcommittee.

The Constitution gives the Senate the power of advice and consent as to both Cabinet officials and Supreme Court justices. But these words sensibly mean different things in these two contexts. Constitutionally, Cabinet officers are members of the president's team, justices are not. Thus, the Senate historically gives more deference to the president's nominees when Cabinet officers who will leave when the president leaves are at stake than when justices who will be in place for life are involved.

The same words, "advice and consent," must be understood in different ways when they interact with different clauses or different structural implications. So, too, with the Constitution's words concerning impeachment.

Let's begin structural analysis by pondering the following hypothetical, which implicates federalism as well as separation of powers. Could some clever state or country prosecutor in Charleston, South Carolina, have indicted Abraham Lincoln in March 1861 and order him to stand trial in Charleston? If so, there might well be no United States today bringing us all together. I believe the Constitution gave Lincoln immunity in this situation, so long as he was in office. The president is elected by the whole nation and no one part of the nation should have the power to undo a decision of the whole. This is the kind of structural argument exemplified by John Marshall's classic opinion in McCulloch v. Maryland.

What's true of state criminal prosecution is also true of federal criminal prosecution. Here, too, we cannot allow a part to undo the whole. Any one federal grand jury or federal petit jury will come from only city, be it Charleston or Little Rock or the District of Columbia. The president is elected by the entire nation and should be judged by the entire nation. His true grand jury is the House, his true petit jury is the Senate, and the true indictment that he is subject to is called an impeachment.

What's more, any effort to indict him by an independent counsel would also violate the Constitution's Article II appointment clause.

Let me make clear, by the way, that Kenneth Starr, the man, is my friend. I admire him and respect him. Nothing that I say here should be understood as a personal criticism.

Counsel Starr is, constitutionally speaking, an inferior officer; that's the words of the Constitution itself. He was never as counsel confirmed by this body, the Senate of the United States. Were he to claim the power to indict a sitting president, it would be impossible to argue with a straight face that he is simply some inferior officer. It would be breaking with the historical and traditional approach of the Justice Department. And even if you think he'd be right, you cannot say that he would truly be inferior. He would be claiming for himself the power to imprison the chief executive officer. This power is awesome. It is anything but an inferior power that can be vested in an inferior officer.

This issue, of course, did not arise in the 1988 Supreme Court case, Morrison v. Olson (sp), since the president in that case was not a target. And remember, Richard Nixon was only named an indicted co- conspirator.

Since Morrison, the Court has been even more strict in insisting that the word inferior be taken seriously in the Appointments Clause, as evidenced by the 1997 case, Edmund (sp) v. United States, which I have not heard discussed in any of these conversations. Any indictment of the president by counsel Starr would in my view plainly violate the teaching of Edmund.

Let me conclude by making clear that, of course, no man is above the law. Once out of office, an ex-president may be tried just like anyone else and that day of reckoning can, of course, be speeded up if the House and the Senate decide to impeach and remove.

Moreover, since a sitting president's immunity (sounds ?) in personal jurisdiction, it may well be waive-able. And if so, political pressure may be brought upon a president to consent to be tried in the drunk driving case or something else. The question is not whether a president is accountable to law and to the country, but how, when and by whom.

Mr. Chairman, that concludes my formal testimony. Perhaps later on, I would be grateful to have a chance, just a minute, to express a disagreement that I have with one thing that you'd said that I think, actually, in my view, is a mistake as a matter of constitutional law. But I don't -- I'd be happy to reserve that for later on.

   


SEN. ASHCROFT: You may proceed while your time --

MR. AMAR: The one thing that, Mr. Chair, you said that I think -- you said many things that I agree with and are very thoughtful and wise. But one thing that you said that I think is just a mistake is that it's a good argument that because the Constitution talks about immunities of legislators, that's a good argument that presidents don't have immunities.

That view was rejected by two United States Supreme Court opinions, Nixon v. Fitzgerald, footnote, I think, 16, the Nixon tapes case. I can give you the footnote in just a second. It's discussed in detail in a Harvard Law Review article, I'd be happy to give you the page. It's just to give you a reason why that's wrong.

Judges are not subject to being sued for things that they say in libel, for things that they say in their judicial opinions. The vice president, who presides over this body and casts a tie-breaking vote, is not subject constitutionally to a lawsuit for something that he says on the floor of the Senate, even though he's not a senator or representative. When the president comes and gives a State of the Union address and criticizes, say, the health care companies, the pharmaceutical companies, he's not covered by that clause, and yet no one has thought that he doesn't have constitutional immunity from the structure of his office.

So I think that there are thoughtful arguments on both sides. But that particular one, by negative implication from -- (Latin legal phrase inaudible) -- is one that I'd urge you maybe to rethink, if you would.

SEN. ASHCROFT: Thank you very much.

Professor Turley, if you would.

MR. TURLEY: Thank you, Mr. Chairman, Senator Torricelli. My name is Jonathan Turley. I am a law professor at George Washington University Law School, where I hold the J.B. and Maurice Shapiro Chair for Public Interest Law.

I sincerely appreciate the opportunity to share my thoughts on the developing constitutional crisis, and the question of indicting a sitting president. I realize your time is limited this morning, so I will attempt the impossible for an academic: I will attempt to be brief.

I --

SEN. ASHCROFT: You may be eligible for membership in the Senate, if you do.

MR. TURLEY: (Laughs.) It goes against every grain in my body, but I'll attempt to do it. I come to the subject with more than a passing academic interest. As director of various pro bono projects at George Washington, I've litigated issues of executive powers and privilege in cases involving the White House and federal agencies. I have also written and practiced in the areas of criminal law and constitutional criminal procedures.

As the recent scandal aptly demonstrates, the president's powers and immunities of office remain questions of contemporary significance. There's no issue more significant for Madisonian democracy, than the accountability of the Chief Executive in a government of shared and limited powers.

Despite the importance of this issue, however, my comments today must be somewhat abbreviated. Due to a more compelling compulsory process late last week, my son Benjamin was born last Wednesday evening. And so, I have been dealing with more pressing -- (scattered laughter) -- matters, generally at three in the morning.

Accordingly, with the consent of the chair, I'd like to submit more extended comments at a later date.

SEN. ASHCROFT: We'd be very pleased to hold the record open for additional comments. If you have a time you'd like to recommend, fine. Otherwise, you would run the risk that we publish whatever conclusions, absent your material.

MR. TURLEY: I should be able to get the material in rather rapidly now, Mr. Chairman.

SEN. ASHCROFT: Good.

MR. TURLEY: As will become clear, I fall squarely on the side of the debate over the indictment of a sitting president. I believe that indicting a sitting president is not only permitted under the Constitution, but in certain cases, essential to preserve core principles of good governance.

I cannot see any interpretive historical or policy basis for an absolute rule against the indictment of a sitting president. Clearly, there are circumstances in which a president should be subject to indictment, regardless of the commencement or outcome of any impeachment proceedings. In my view, impeachment and indictment are entirely independent issues, subject to different considerations and processes.

While I subscribe to this position, I readily accept this remains one of the great unanswered questions of the Constitution. The esteemed panel, which is composed of good friends and academics that I respect greatly, shows the depth and the good faith basis of arguments on both sides.

It's inevitable that any discussion of indictment of a sitting president would lead to a comparison with impeachment. Commentators often raise this question as part of a scenario in which impeachment efforts fail, and an indictment is pursued as an alternative and less credible form of punishment. This creates the false impression that impeachment and indictment are variations on a common theme.

In my view, they are not. Impeachment and removal serve as a distinct non-punitive function. The impeachment clause is designed to protect the office of the Presidency and the country. Conversely, indictment is designed to punish an individual for an offense committed against other individuals, or the state.

Since indictment and impeachment serve distinct purposes, they should not be evaluated as alternatives, but rather independent processes to which a president may be subjected. Put another way: indictment satisfies the legal obligations of a citizen for criminal acts, an independent obligation that is neither satisfied nor negated by an impeachment decision.

We are obviously not discussing this question in a vacuum. A sitting president stands accused of a series of crimes committed while in office. While I believe today's hearing addresses issues far older and frankly more significant than the outcome of this crisis, it would be folly to ignore the contemporary context for this discussion.

In considering the developing constitutional crisis, we should begin with the question of whether the president's alleged conduct would ordinarily warrant prosecution. The greatest challenge for the president, in both impeachment and indictment, is that his conduct is in fact indistinguishable from the conduct of average citizens who have been prosecuted every year by his own administration.

I have written on various cases of perjury and obstruction that have a striking similarity to the president's alleged conduct. I will supply this material to the subcommittee with my extended written comments. The premise of this work is that both state and federal prosecutors routinely impose standards on ordinary citizens, in which the evidence is more circumstantial than the evidence in the president's case.

If the president is subjected to the same standard of the ordinary citizens, he could be indicted and prosecuted on this record. While I am certainly willing to discuss these issues, there's sufficient evidence to assume, in my opinion, for the purposes of this hearing, that a good faith indictment could be sought on the record.

The next question is whether, assuming such an indictment could be brought, there are constitutional barriers to prevent the indictment, despite its basis in law. I see no such barriers.

The most obvious source for an absolute rule against indicting a sitting president would be the language of the Constitution itself. The constitutional argument against indicting a sitting president is often justified on a sequential argument derived from the language of Article I, Section 3. This language, it is suggested, indicates an intent to allow indictment of a president, only after impeachment under a strict sequence theory.

On its face, however, the language of Article I can as easily be read as an express limitation on the authority of Congress to restrict their impeachment powers to legislative acts of removal, as opposed to any actual physical punishment left to the judicial branch. Article I does not limit the personal accountability of a president in the judicial branch.

Cases interpreting impeachment language of Article I certainly add support for indicting a sitting president. In cases involving indictments of unimpeached or unexpelled officials from all three branches, courts have rejected virtually identical sequential arguments, as well as separation arguments. Federal judges, as the chair has noted, have been indicted before impeachment.

In those cases, the same sequential argument was raised and rejected by those courts as meritless. Other chief executive officers have been indicted before removal or impeachment. Those are the chief executive officers of the sovereign states. The most recent and most relevant example, is Governor Jim Guy Tucker of Arkansas, who was not only indicted but convicted and remained in office, only to resign some time later.

Finally, the most analogous office to the president, is the vice president of the United States. Both are unique in representing a national constituency, both are subject to the impeachment standards. A vice president also was indicted before impeachment, in the case of Aaron Burr, who was indicted for the murder of Alexander Hamilton, after a fatal duel on July 11, 1804.

These cases demonstrate that every analogous office has been subject at some time to indictment or impeachment. This is not to say that the interpretive argument is conclusive in ruling out sequential argument. Quite the contrary, I believe the language is ambiguous and capable of either construction.

I also address in my written statements, the historical basis for a sitting president, which frankly, I feel is in equipoise. I do not believe that any of us can seriously argue there is a clear historical foundation for one argument or the other. We have founders and drafters saying different things. We can hardly take a collection of one group, and say it reflects the collective intent of the whole group.

As my written statements will lay out in more detail, I believe there is a strong policy basis for indicting a sitting president in some circumstances. I see my time is up, and I would love to discuss those issues, but I don't want to delay my colleague any longer. Thank you. That is the end of my written statement, and I'd be delighted to answer questions at a later time.

SEN. ASHCROFT: Thank you very much, Professor Turley. And we now turn our attention to the testimony of Professor Susan Bloch. Professor Bloch.

MS. SUSAN BLOCH (Professor Georgetown Law School): Thank you, Senator, Senator Torricelli. Thank you very much for inviting me here. It's a pleasure, even though the subject is difficult. I've been teaching at Georgetown since '83, where I teach constitutional law and Supreme Court practice, among other things. And I've written a book on the Supreme Court, and numerous articles, including articles addressing this issues.

The question of whether we can indict a sitting president is not an easy question. But I believe that when you consider all the factors, the best answer is that we cannot indict a sitting president. It's important to remember that the question is not whether the president can ever be criminally prosecuted. He clearly can be -- or she, someday.

The question is, the order, and whether you can indict the president while he is still in office. Now the text, on the surface, suggests perhaps that you do have to impeach before you indict. But, as others have mentioned, it really is more ambiguous than that. It could be that the text of the Constitution -- I'm referring to Section 3 of Article I -- may simply be saying that even though the person has been impeached, it does not preclude criminal prosecution. But it could be addressing not so much the temporal ordering, but more the question of whether there's a double jeopardy problem. And it's clear from the Constitution, that there is no double jeopardy problem, if you impeach first and then criminally try the person.

So the text actually doesn't tell us very much. And if we look for, you know, the original intent of the drafters of the Constitution, an the ratifiers, and the early Congress, as Professor Freedman's wonderful article says, there's evidence on both sides. And so, it's very hard to say that we can tell what the framers really thought.

Well then, in constitutional law, as I teach it, we go on then to say well, what has been the past practice? What have we done? And then what are the structural implications from the Constitution, even though the text, as I say, is not clear.

Well, over the 200 years, we've had numerous examples of indicting sitting judges, indicting sitting vice presidents. And the question therefore is, have we been wrong all those years in indicting these people while they're in office? Or, if we weren't wrong, the next question is, well, is the president the same? Should we treat the president the same way?

Addressing the first question, as to whether the past practice with respect to judges and vice presidents is correct, I believe the practice is correct. Incidentally, past practice also shows that we have never indicted a sitting president. But --

And the reason I think the past practice with respect to judges and other officers, including the vice president, is correct, is relatively simply. I mean, judges, for example, are appointed for life. So, if there is some alleged criminal behavior for a judge, and we insist that there be impeachment before any criminal process begins, we put Congress in a very difficult position. Either Congress must spend a lot of time and energy investigating all kinds of potential criminal behavior, such as, you know, not paying taxes, or tax fraud, or whatever it is the judge is accused of.

Either Congress does all that difficult investigating, which is not a good use of its time, it's not its expertise, or Congress is forced to continue to have this judge sitting, despite the alleged criminal behavior. So, I think it has made sense for us to indict sitting judges. But we do have the spectacle of judges sitting in jail still on the federal payroll, because, again, the only way to remove these people, is by impeachment. And fortunately, in most cases, the judge eventually, if he's in jail, does get either impeached, or resigns.

Similarly, I think our past practice with respect to vice presidents, although not extensive, is correct, because vice presidents and other officials are not nearly as essential as the president of the United States. so, I think that the past practice has not been a mistake. But I do believe that we should not treat the president the same way.

As the Supreme Court has recognized, the president is unique in our constitutional scheme. The Constitution vests all the executive power in one person. He is our Commander-in-Chief, he is our chief executive. And subjecting him to the criminal process is, to me, very different from prosecuting one of more than a thousand federal judges. The impact on the operation of government is clearly distinguishable.

I find it very hard to imagine that the president can be indicted, tried, convicted of a crime, and then sentenced to jail. Remember he would still be the president. The only way the president can be removed from office, is via impeachment. I don't believe that the 25th Amendment would be appropriate, in this particular context.

Now, those on the other side -- including some here -- suggest that there are punishments other than jail. But they do not say that jail is impossible. They seem to rely on some sort of reasonable judgment, by those empowered with the decision whether to jail or not. I'm not as sure that in the heat of the political battles likely to attend such a trial, we can be that confident.

But even if those in charge of sentencing the president are reasonable, the notion of the president being subject to something like house arrest -- I guess we would call it White House arrest -- or to a special tracking bracelet, I think is quite absurd.

There is also judicial precedent that is relevant here. Despite the fact that the Constitution does not explicitly provide for any presidential immunity, the court, as Professor Amar has noted, has inferred such immunity from the Constitution. And the notable case is Nixon versus Fitzgerald, where the Supreme Court held that the Constitution provides the president with absolute immunity from civil damage for actions taken in his official capacity.

When Paula Jones sued President Clinton for sexual harassment when he was governor of Arkansas, Clinton relied on the Fitzgerald case to argue that there should be temporary immunity for the president for civil damage actions. His argument was that the suit should have to wait until he was out of office. The Supreme Court disagreed. They said that one could sue a sitting president for unofficial conduct without causing great interference. The court said, if properly managed, the Paula Jones suit would occupy very little -- would not occupy very much time on the part of the president.

I submit that the events of the past year and a half show that prediction was naive. I believe we have learned that one cannot sue the president as if he were an average citizen. But whatever one thinks of the Jones decision, it is hard to believe, after our current experience with the Jones suit and all the stuff that has come after it, that many would still contend that indicting and trying a sitting president can be a mere blip on the president's calendar.

A criminal trial against the president of the United States would be enormously distracting, disruptive, and should be delayed until the president is out of office. Balancing the country's interest in protecting the office of the presidency against the need to proceed with a criminal process should lead to the conclusion that the criminal process can safely be deferred.

Any misdeeds by the president that seriously damage the country can be dealt with by impeachment. In that way, we can punish -- sorry. Punishing the president with criminal sanctions can wait until the president is out of office. In that way, we can punish the president for his alleged criminal acts without unnecessarily punishing the whole country.

Thank you.

SEN. ASHCROFT: Thank you very much. I appreciate the fact that each of you has come at significant effort and each of you has obviously invested substantial scholarship in this.

Professor Freedman, one argument -- an aspect of your argument that troubles me is the prospect that the president might be subject to indictment by countless state or local prosecutors. I just -- I don't really -- I have a hard time finding immunity in the Constitution, but I have a hard time dealing with the potential. And I suppose perhaps Professor Amar's sort of Charleston example would have been maybe one of the hardest to answer. How do you respond to that?

MR. FREEDMAN: Well, first of all, the one most analogous experience we have, with Aaron Burr, were, in fact, state indictments. And I don't think the -- two, in fact; New Jersey and New York. And I don't know that anybody's ever thought it was irresponsible of those prosecutors to proceed, and never since. So the historical basis for that fear may be somewhat overblown.

But to the extent that there's a reason to worry about it, there are also obvious means of protection in existing law and in the law that you could easily create by statute. I suggest in my article that the current federal removal statute covers it and that the ability to enjoin a meritless state prosecution under existing law covers it.

You could easily provide by statute that all prosecutions against a sitting president be routed through the independent counsel mechanism, and I say in my article I don't think anybody would have a problem with the concept that that would be a perfectly constitutional statutory solution to that problem to the extent it shows up as a problem. It's not a reason to invent a blanket constitutional --

SEN. ASHCROFT: Is it your view that we could enact a law which would prohibit prosecution of a president by a state prosecutor?

MR. FREEDMAN: Yes, I think that would clearly be -- for exactly all the reasons that have been said, that would be in the protective function of the federal government.

SEN. ASHCROFT: Is it your view that if we were to enact such a law, we would have the power to suspend the statute of limitations or to toll the running of the statute pending the expiration of the president's term?

MR. FREEDMAN: Yes. And if you were to do such a thing, I would recommend, as I did in my written statement, that you do so, both, you know, for respect to those -- (inaudible) -- but also because it's built into the arguments on the other side here that the Supreme Court will do that, when it comes around to writing this immunity, it will also write in the tolling of the statute of limitations, maybe. But it wouldn't hurt for you to do it explicitly, if it's to be done.

SEN. ASHCROFT: Professor Amar, if the president were to commit a serious crime one day into office and the crime were to have a two- or three-year statute of limitations, do you imply from your reading of the Constitution that there is a tolling of the statute of limitations? You gather sort of from the structure of things that the president can't be indicted, to protect the presidency. Do you gather from the structure of things that there is a tolling of the statute of limitations to protect the integrity of state laws or other laws that might be enforced?

MR. AMAR: Absolutely. Of course, the state could choose not to. I actually think it might be best, were a federal statute to be enacted, to leave it up to the state, to give them the option. But equitable tolling is done all the time when people are, for one reason or another, not subject to the jurisdiction of a criminal court.

I do have to take issue, though, with what Professor Freedman said on a couple of points. First, I, at least, do challenge the notion that an independent counsel can do this, and I stand four- square on the Edmond (sp) case, 1997. And that case, which was decided by the United States Supreme Court, involved a significant rethinking of the constitutional issues that were addressed in Morrison versus Olsen (sp).

SEN. ASHCROFT: Let me ask you this question, Professor. If you believe that an independent counsel could not prosecute the president and we could not make it so with a law, what business does an independent counsel have of investigating the president? Do you believe that it is inappropriate for him to assemble evidence to compel a grand jury to bring witnesses before the grand jury, to develop evidence, if, in fact, there is a bar upon the utilization of that evidence in the traditional way a grand jury -- or in the function of prosecution?

MR. AMAR: A couple of thoughts, Mr. Chair. One, if you read carefully Justice Scalia's opinion in Edmond -- he was, of course, the dissenter in Morrison, and his Edmond opinion for eight justices, when you read it, in effect writes into United States reports a lot of the things that he said in his Morrison dissent. And the ninth justice, Justice Souder, agrees with all of that and goes one step beyond it.

First of all, that's only a problem so long as we have independent counsels that are not confirmed by the Senate. There's a point about the inferior officer clause and judges in the business. So you could have a differently structured independent counsel statute that at least wouldn't run afoul of the Edmond precedent.

More generally, there is great power even of a grand jury independently to do investigation, to issue a thing called a presentment or a report that can make its findings known. Richard Nixon was named an unindicted co-conspirator. Now, that was originally under seal, but eventually it came out. And historically, I believe there is great power in the part of independent investigatory bodies, even if they don't have the power to indict, prosecute, convict, arrest and imprison and put the president in leg irons. There's an important investigatory function.

As a matter of constitutional prudence, I do think that the better solution -- and I suggested this in a recent article in the September issue of the American Lawyer -- would be for this body and the House of Representatives to use their own investigatorial powers so as to assert greater responsibility and be held to greater accountability for that.

Also, that process can be more public and less secret. Grand juries are supposed to be secret, but it's hard to maintain all of that when you have something as politically interesting as an investigation of a president. It's more constitutionally neat and appropriate for you all not to delegate that to others but to reserve it to yourselves.

SEN. ASHCROFT: You seem to believe that the Supreme Court erred in Clinton v. Jones. Was that fair to say?

MR. AMAR: Nothing in my remarks today depends on that. I do think that Clinton versus Jones does say a couple of things that bear on your initial question to Professor Freedman.

SEN. ASHCROFT: Well, what I was asking is, do you think they erred in Clinton v. Jones?

MR. AMAR: I think the opinion should have been -- maybe the results made sense, but I think --

SEN. ASHCROFT: Well, if the result makes sense so that the president has to respond to civil process, is it your view that the president remains immune from criminal process?

MR. AMAR: Let me identify the three or four things -- when you read the Jones opinion --

   


SEN. ASHCROFT: I'm not talking about just indictment.

MR. AMAR: Right.

SEN. ASHCROFT: I'm talking about subpoenas.

MR. AMAR: When you read --

SEN. ASHCROFT: Your view is that the president doesn't have to answer subpoenas in criminal cases, in spite of the fact that he does in civil cases.

MR. AMAR: Here's one thing that Jones says. State judges may not have this power. (It's not about?) state civil suits. And that bears on your initial question to Professor Freedman. They said, in fact, one of the things that reassures us is we're dealing with lower federal judges, all of whom have been confirmed by this body, the Senate of the United States, appointed by a president, national officers whom you all confirmed. None of them is an inferior officer.

Now, the problem is, in a criminal context, that you don't have -- grand jurors from one city haven't been confirmed by this body. The independent counsel in the current statute hasn't been confirmed by this body or nominated by a president. The judge, in the nature of things, who is presiding over the grand jury, isn't there day to day presiding over all the investigatory --

SEN. ASHCROFT: Well, is it your view that if we would simply have advice and consent for independent counsels that it would cure the entire problem?

MR. AMAR: It would cure some of the problems but not all of them. It would cure the particular objection, based on the inferior officer clause and the appointment clause of the Constitution. There are other issues, more structural issues, going to the --

SEN. ASHCROFT: So you'd come to the same conclusion.

MR. AMAR: -- (inaudible) -- executive. Well, you know, there is the unitary executive issue of in whose name a president of the United States, who's elected by the entirety of the nation, can, in effect, be -- I believe that that's your awesome power, Mr. Chair, you and your colleagues sitting as a high court of impeachment. But I do think, since you are in particular so interested in textual bases, there is a real strong textual objection to the current set-up, based on the inferior officer and appointments clause. Then there are larger structural concerns.

SEN. ASHCROFT: Well, I do plead guilty when you say I'm interested in the text of the Constitution.

MR. AMAR: Me, too. I'm with you on that.

SEN. ASHCROFT: (Laughs.) Senator Torricelli.

SEN. TORRICELLI: Thank you, Mr. Chairman, very much.

Professor Turley and Professor Freedman, any document that has survived as long as the United States Constitution and any issue as rarely visited as the impeachment of a president is bound to lead to conflicts of interpretation. And each of these issues seems to have some considerable legitimacy.

But I would appreciate your guidance in that Judge Bork, in writing on this issue, has fairly definitively cited the constitutional interpretation by the founders. Let me cite two, if I could. June 18, 1787, Alexander Hamilton said, and I quote, "The president may be impeached for any crime or misdemeanor by the two houses of the legislature, two-thirds of each house concurring, and, if convicted, shall be removed from office. He may afterwards be tried and punished in the ordinary course of the law. His impeachment shall operate as suspension from office until the determination thereof."

Hamilton further, in the Federalist Papers 69, concludes, and I quote, "The president of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery or other high crimes or misdemeanors, removed from office and would afterward be liable to prosecution and punishment in the ordinary course of the law."

Now, the reading of the Constitution is subject to different interpretations. The absence of any considerable body of case law, since this is such a rare occurrence, does lead to different interpretations. These quotes, however, from the Constitutional Convention itself, as provided through Judge Bork's writings and by the Federalist Papers, seem rather clear on their face.

Is either of you prepared to put before the committee anything equally authoritative or as clear from any sources quite as impeachable -- unimpeachable?

MR. FREEDMAN: Yes, Senator, and I have. It's pages nine to ten of the written testimony that I submitted, and then we go on to pages 11 and 12. I think all the scholars will agree that the truth is the founding generation disagreed. It's absolutely true, Alexander Hamilton took the position that you had to impeach --

SEN. TORRICELLI: Well, let's go to the -- with the forbearance of the chairman -- I don't want to receive pages of text, but as I have taken two excerpts, I think it would be of service to the committee and to the country to recognize that if, indeed, this issue is unsettled in our minds in 1998, it was indeed unsettled in 1787 to an equal degree.

MR. FREEDMAN: Absolutely, Senator. Referring you to footnote eight, page nine of my testimony, James Iredell, who was later on the Supreme Court, said the president is not exempt from a trial, if he should be guilty or supposed guilty of treason or any other offense, responding to an argument made against the ratification of the Constitution that you were going to create a king here. And Tenchcotch (sp), Alexander Hamilton --

SEN. TORRICELLI: But what about -- leave that quote alone. That quote is not in conflict with what I just cited from Alexander Hamilton. Alexander Hamilton was also saying the president will be tried, including what is being addressed by that quote is whether there is some sovereign immunity.

MR. FREEDMAN: It's in conflict. It's in response to this argument that he is going to have -- that you are going to create a king here. And if we had any doubt about it, as Professor Amar --

SEN. TORRICELLI: But go back to the words! I don't see the --

MR. FREEDMAN: Professor Amar has just, you know, rightly conceded -- the argument that he is telling us about, where Adams Ellsworth was together and Sander Ames (sp) -- they were arguing on the floor of the Senate about this. And the other half of the people -- Senator McKay from Pennsylvania, said, "What, are you going to let him commit crimes while he continues in office?" And they said, "Yes, as long as he is in office until he is impeached." "But then you can't get rid of him until he is impeached." They really did have exactly this debate -- both on the floor of the Senate after the ratification, during the ratification of debates, and we don't know, to get back to what happened in the convention -- we don't know nearly as much about what happened in the convention, because it was less public. And frankly we do -- we have one post-convention report, which I put no weight on. We have one post-convention report of somebody who says it was a deliberate decision not to give the president immunity the way we did to senators and representatives -- and that was done on purpose to which I say yes, but who knows -- he said that many years later. And it is very unlikely in light of the fact that everybody else disagreed passionately about this that they really did come to an understanding.

SEN. TORRICELLI: It is very unlikely that the American Constitutional Convention, given their experience with the British monarch, was going to give sovereign immunity on all crimes and all actions to an American president. So -- That would be a contradiction with the founding of the nation. But I -- and I take you at your word that the intent of what you are citing may be in conflict with Alexander Hamilton's interpretation. But you understand my view that the words that you have presented verbatim are consistent and not in conflict, because no one is arguing that a president cannot be indicted and tried.

MR. FREEDMAN: Can I quote you the rest of -- (inaudible) -- convention? Federal officers may be tried by a court of common law for common law offenses, whether impeached or not.

SEN. TORRICELLI: As federal officers?

MR. FREEDMAN: Yes. No man is better than his fellow citizens, no can pretend to any superiority to the meanest man in the country. If the president does a single act by which the people are prejudiced, he is punishable himself. If he commits any crime, he is punishable by the law of his country and in capital cases may be deprived of his life. And, again, he was endowed in the context of whether impeached or not.

On the historical thing, I do think in fairness, senator, that they were in disagreement as people are today.

SEN. TORRICELLI: Yeah -- no, I was saying that. And I think that's a good and authoritative quote. That's what I was looking for.

Professor Turley?

MR. TURLEY: Thank you. Just to add to the prior statement, I don't think there is anything we can do to bring clarity on this issue. I mean, the original founders operated much like Congress: when there was a matter of great controversy they tended to be ambiguous, frankly. This was a matter of great controversy. It was greatly controversial as to the standard of impeachment, as to what qualifies as "high crimes and misdemeanors." It was extremely controversial as to in what circumstances the president may be indicted. There is no question that individuals like Hamilton had strong statements on one side of this issue. But we will not be able to answer this question by reference to the individual statements. If we start by asking ourselves, as we often do, Is the text of the Constitution clear?, I expect that you will have all of us answer unanimously no. Is the historical record clear as to the collective intent of the drafters? I think all of us would have to answer no.

SEN. TORRICELLI: Well, if it were clear we wouldn't be having this hearing. So --

MR. TURLEY: Right.

SEN. TORRICELLI: -- that does not mean that it is not a value to nevertheless get direct interpretations.

MR. TURLEY: No, you're absolutely right, senator.

SEN. TORRICELLI: Let me go back to -- Professor Amar made an interesting historical point, and I believe this raises a conflict too in the Founders' general belief in the operation of this government, that the power to -- the power would exist to separate a president from his popular mandate. The founding principle on this country resting so firmly on power resting with the people, and giving a mandate to public office, that this would be reversible by a grand jury in concert with a jury. It seems to me to be in basic conflict. Would you address that?

MR. TURLEY: Thank you, senator, I would. There is a very basic conflict for either impeachment or indictment, which cuts off earlier public mandate for the president. In terms of a grand jury performing that role, I think the answer is that at various points during the debate over this language the drafters often distinguished between the president in what was called his official character and the president in his character as a citizen. And it's an important distinction. It's in some ways the American paradox. We have the most powerful man in the world, and he can't use any of that power for his own personal needs. In that sense it makes the American presidency a perfectly lousy job, because you can use all the power for the nation's benefit, but when you yourself cross the line, when you commit a crime, you can use none of that power. You have no more authority, no more privileges, than an average citizen.

And I would disagree in one sense, senator, in a very mild sense. And that is I believe that the overriding theme of the Madisonian democracy is that all of our officials are responsible as citizens for any of their actions as individuals. I don't agree with my friends about the parade of horribles of what would occur -- you know, the idea that we would have a tracking bracelet on the president -- I suspect we don't need one -- it's called CNN. But -- (laughter) -- also this idea that you are going to have local prosecutors bringing these types of abuse of charges. Citizens have protection from abuse of prosecutions. That's why a president needs to spend a lot of time to make sure we have good judges and good laws --

SEN. TORRICELLI: Well, let me just --

MR. TURLEY: -- because he may well find himself subject --

SEN. TORRICELLI: I'm not sure how long the chairman is going to let me continue to talk, so let me just ask -- let me ask a couple of other things fairly quickly if I could.

Professor Amar also has raised this specter historically -- as he pointed out, Abraham Lincoln could have been indicted by a state for his actions at Fort Sumter by a local prosecutor in South Carolina. More than that, I take it a judge in Maryland could have indicted him based on the suspension of habeas corpus or abuse of power. It would appear to me that if your interpretation prevails that a president can be indicted absent impeachment, we are devaluing the powers of the presidency of the United States by legal interpretation. We may even be creating a situation with a practical operation of the powers of the president become a near impossibility.

President Clinton's case aside, the door has been opened to civil litigation against the future president of the United States, and I believe an army of litigants may walk through that door. The notoriety, the financial rewards, the opportunities to compromise the judgment of future presidents is enormous by bringing the civil litigation forward.

Now, we also I think may have different judgments in the quality and the motivation of individual local prosecutors, because the opportunity for local state or federal prosecutors to build careers, obtain notoriety by bringing criminal investigations based on actions of future American presidents is enormous. This we are opening a door to enormous mischief.

Now, I believe, as Professor Amar has said, and Professor Bloch, that there is at least some foundation to believe the Founding Fathers may have anticipated this problem, and provided that all of us are equal before the law, presidents remain accountable, but only upon the removal from office. That deals with the incentive for people to bring frivolous criminal and civil cases forward, and the paralysis of the presidency.

The paralysis of the American presidency is not a theoretical problem. I will not -- I will not attempt to interpret the actions of terrorists or outlaw governments, but there is certainly reason to suspect that the current situation which approaches at some level a degree of paralysis in the Clinton administration is inviting foreign mischief. This is a real, practical and immediate problem that is clearly providing some foundation for a Senate hearing which has theoretical reasons for its being held.

I've known I've taken considerable time of the committee, but I'd appreciate it if any of you could address a variety of thoughts.

MR. TURLEY: May I just respond, because there's a lot of thoughts there, obviously, and they're all very good. I need to I think make, if I can, three points. And that is, first of all, in terms of civil litigation, the president is not subject to civil litigation for actions taken during his presidency. He is largely protected from those. He is only subject to civil litigation perhaps before. It's a relatively rare circumstance. The delay caused by the Jones case may in equal part be laid at the feet of the president. It was the president that testified in the deposition in what appears to be an untruthful manner. There is a thing about depositions, that if you speak untruthfully they tend to prolong the case. That is not necessarily proof that the Supreme Court was wrong. The Supreme Court assumed this would be a rather quick process, and it did not turn out that way. But the delay was not the responsibility of the Supreme Court, nor I suspect Ms. Jones.

Second, the Constitution cannot protect the president or guarantee the president that his conduct will never be subject to a criminal investigation. Only the president can guarantee that. Only he can choose conduct that stands clear of a criminal lying. This president did not do that. No matter who you ask, this president came dangerously close, or possibly crossed the criminal line. When he crossed that line, he emerged not as the president but as a citizen. And that is how he --

SEN. TORRICELLI: Mr. Turley, in fairness to the president, you are theorizing for matters for which a report has not even been issued, no less subject to your purview.

MR. TURLEY: I'd be more than willing to respond to that, because --

SEN. TORRICELLI: And I --I think you are --

MR. TURLEY: -- at two points it does appear as if the president most certainly committed perjury -- on two points. And that is the president --

SEN. TORRICELLI: I think you are approaching the line of responsibility yourself. This is a judgment better reserved for future weeks.

MR. TURLEY: Well, in fairness, if I may explain, on one point the president affirmed the contents of the Lewinsky affidavit which he now admits was false. He admits he did have a relationship. That affidavit denied any relationship. On its face that statement must be false. He also stated that he could not --

SEN. TORRICELLI: A false statement and criminal perjury are not synonymous.

MR. TURLEY: Well, we can debate materiality, but it is clear that on that question --

SEN. TORRICELLI: I don't teach law, but I attended law school long enough to know, as do your freshman students, that a false statement in a court and perjury are not the same matter.

MR. TURLEY: Senator, I believe that this president should have an opportunity to respond before the Senate if possible, and even before a federal judge. There has been ample opportunity for that. But ultimately we have to make decisions as citizens whether there is a credible basis that criminal acts were committed by this president in judging how we are to proceed. It is harder to suggest that the allegations of crimes committed by this president are anything less than credible. And in that circumstances we have been placed in a rather terrible constitutional crisis. What do we do? Do we simply say that impeachment alone is the only option for a government? What happens if a president -- if you take the Burr example, what if a president murdered an opposing -- if I could just finish -- an opposing --

SEN. TORRICELLI: You are missing -- you are mischaracterizing Professor Amar's or Professor Bloch's or my view.

MR. TURLEY: I'm not mischaracterizing, I'm just --

   


SEN. TORRICELLI: Our views are simply that the constitutional process, for the practical operation of this government, is that this Congress proceed to an impeachment and removal from officer, and then the criminal process be allowed to proceed. No one is arguing that there is a presidential immunity from criminal law.

MR. TURLEY: Nor am I suggesting that.

SEN. ASHCROFT: May I just make a recommendation here? First of all, I thank the senator and I thank the professor, and I would direct your attention to the opportunity that will be provided to extend your comments in writing.

MR. TURLEY: I'm content with that.

SEN. ASHCROFT: I would be happy to give you the last word -- I was trying to do that there. But --

SEN. TORRICELLI: You know, I hope -- let me just say finally that to some this will appear as a constitutional crisis that legal scholars and members of Congress must quickly resolve. It is also a constitutional opportunity. There has been some understandable ambiguity on the issue of civil and criminal exposure of presidents of the United States, and this is an issue that should be resolved. The United States government should not continue to function with any ambiguity with regard to the exposure of the president on civil and criminal matters. This may require legislation from this Congress. It will require some careful review by the courts. But rather than us assuming that it is simply a crisis of proportions that are going to be difficult to manage, we should also recognize as an opportunity so future presidents and future Congresses do not need to address this issue.

Thank you very much, Mr. Chairman, for the time.

SEN. ASHCROFT: I appreciate the thoughtfulness of each of the witnesses. Incidentally, we will be charged with the opportunity or responsibility of reauthorizing I believe the independent counsel law next year, and the kind of --

SEN. TORRICELLI: We're simply watching its expiration. (Laughter.)

SEN. ASHCROFT: Or tailoring it or otherwise being involved with it. And these kinds of things are important to us in the discussion, and beginning the discussion is appropriate. I want to thank each of you for coming. I don't mean by the fact that I am now thanking you and implicitly in the structure of things suggesting that you retire to your seats, that we don't want to hear from you additionally. We would welcome any additional comments you would make in writing, but it is time for us to move to the next panel of individuals. Thank you very much for appearing.

   


Second Panel

SEN. ASHCROFT: As folks are getting settled, let me introduce the second panel.

Peter Rient is a 20-year veteran of the Department of Justice and served 25 years ago as an assistant special prosecutor with the

Watergate special prosecution force. He currently is a partner at Gaynor, Rient & Hottis.

Secondly, Professor Frank Teurkheimer, also served on the Watergate special prosecution force. He now teaches law at the University of Wisconsin and is a counsel of LaFollette, Simkin (sp) in Madison, Wisconsin.

Thirdly, Doug Cox served as deputy assistant attorney general for the Office of Legal Counsel during the Bush administration. He is presenting his testimony jointly with Theodore Olson, who headed up the Office of Legal Counsel for President Reagan. Both are currently partners at Gibson, Dunn & Crutcher here in Washington, DC.

I'm delighted that you all would come to share your perspectives on this important issue with us. And I would call now upon Peter Rient to begin with his remarks. And if we could observe the same general frame of opportunity, we have about 45 minutes, so if each of you can spend five to seven, we'll be halfway home and then we'll have discussion.

Mr. Rient.

MR. RIENT: Thank you, Chairman Ashcroft.

I will be exceedingly brief, I can assure you.

My name is Peter Rient. I appreciate the opportunity to appear before you today to testify concerning the question whether it is lawful to indict a sitting president.

I understand that you have the written statement I submitted and it will be made part of the record of these proceedings.

SEN. ASHCROFT: That's correct.

MR. RIENT: That being so, I will not presume upon the committee's time by repeating what I have already said. Instead I will simply expand very briefly on some of the thoughts expressed in my statement.

First perhaps I should mention that I've had some experience with the question under consideration today, as a result of a 20-year career with the US Department of Justice that included four years as an assistant US attorney in the Southern District of New York and two and a half years as an assistant special prosecutor with the Watergate special prosecution force.

It was in the latter capacity that I had occasion to consider whether President Nixon could lawfully be indicted for his participation in the activities that constituted the Watergate cover- up. I concluded that he could and should be indicted and prepared a draft of the charges against him. It continues to be my view today that a sitting president does not enjoy immunity from criminal persecution.

As a former prosecutor and a principal author of the Department of Justice guidelines for the exercise of prosecutorial discretion, I can tell you that it is an extraordinary thing to grant a potential defendant complete immunity from prosecution. It is a step taken only when necessary to obtain cooperation in the prosecution of someone more culpable. And even then, it is taken only if there is no other practical way to obtain the cooperation sought.

Here, by contrast, we are talking about a prospective grant of immunity to every person elected to the office of the president -- a grant conferred not in the aid of the purposes of the criminal law, but rather in disregard of those purposes.

Furthermore, on the basis of years of involvement in the Justice Department's work with the Congress to revise the Federal Criminal Code and reform federal sentencing procedures, I have become particularly sensitive to the uniquely harmful effects of crime committed by persons in high public office. Such transgressions bring disrepute on the office and on the government as a whole. That is a particularly serious matter, considering that under our system the maintenance of a safe and orderly society rests largely on respect for the law and voluntary compliance with its prohibitions.

Despite these considerations, the argument is made that a different value -- the effective functioning of the office of president -- is more important than the evenhanded application of the criminal law and that it warrants showing extraordinary solicitude to the incumbent of that office.

That argument is demeaning. It demeans the presidency. It demeans the fundamental principles on which this republic was founded. And it demeans all of us as citizens.

For more than 200 years we've been able to govern ourselves effectively without sacrificing our principles. Surely we can continue to do so. Surely it has not become necessary to hold our leader to a lesser standard than the minimal standard that all other citizens must meet.

Thank you, Mr. Chairman. That concludes my oral remarks.

   


SEN. ASHCROFT: I'm grateful for your remarks, and look forward to the opportunity for questions at the conclusion of the remarks of the other panelists.

Professor Teurkheimer teaches at the law school at the University of Wisconsin.

MR. TEURKHEIMER: Thank you, Mr. Chairman.

I'm honored that you've asked me to appear before you and I hope my testimony will be of some value to yourself and your committee.

I am an academic but I've also been involved in the federal criminal system for many, many years -- 10 as a federal prosecutor both in New York City, where Mr. Rient and I were colleagues, and again on the special prosecution force we were colleagues, and I finally managed to avoid him when I was US attorney in Wisconsin about 15-20 years ago.

I've also done a lot of work as a criminal defense attorney since 1981. And so I've spent a considerable portion of time with this system.

I would like, in these very brief comments, to talk about three things: what happened back in 1974; why I believe that the separation of powers concept as articulated by the Supreme Court in the Clinton v. Jones case says that it is unconstitutional for a sitting president to be indicted; and finally, to briefly discuss the question that was addressed by Mr. Rient here about equal justice and is the president above the law.

Back in 1974, the evidence before the grand jury was very compelling that Richard Nixon was involved in a conspiracy to obstruct justice, in a conspiracy to pay burglars money to keep them quiet, from talking about the execution and the planning of the Watergate break-ins. Nineteen grand jurors felt unanimously -- or 20 -- the grand jury felt unanimously that the president was a member of an illegal conspiracy and therefore named him as an unindicted co- conspirator.

When the identical evidence was presented to the House Judiciary Committee later in 1974, the committee voted 26 to 12 on essentially the same evidence to impeach Richard Nixon.

Nevertheless, Leon Jaworski chose not to ask for an indictment against the president. He did so for very simple reasons. He said he and 23 grand jurors are not about to undo a national election where there is an ongoing and viable impeachment process in the House of Representatives. Essentially, he said, this is an election, millions and millions of people determined who should be president, I and 23 grand jurors are not going to undo that.

I think that was both a prudent decision and, I believe, a compelled decision. Compelled because the separation of powers concept, which is fundamental to our system, as the Supreme Court said in the Clinton case, requires that one branch of government not impair the functions of another. A criminal prosecution against a sitting president of the United States significantly impairs the functioning of the presidency and it does so through executive and judicial officials who are using their official capacity.

Let me just briefly run through the scenario.

What happens if a president is indicted? Well, the first thing, his lawyers want to negotiate a plea agreement, and any prosecutor will sit down with you. And one of the chips in any plea negotiation discussion is the office itself. We have seen that in the precedent of the Agnew case. Essentially, Vice President Agnew's attorneys used the chip of being in line for the presidency as a reason to avoid jail. And when Attorney General Richardson ultimately reached the agreement with them that involved Vice President Agnew's plea of no contest to federal criminal charges, that plea agreement included the resignation of Vice President Agnew.

Well, if being in line for the presidency is a chip that you can put on the table, how much more so is the presidency itself?

And I submit it is unseemly, it is degrading to have that kind of a chip on the table on those kinds of issue.

Furthermore, who is it that decides? It's the independent counsel. We have a constitutional system that says the House shall charge and the Senate shall preside over presidential removal. Here we have an independent counsel essentially responsible to no one making that very same decision in the course of a plea bargain. I submit that that is an intrusion on the powers of the Congress.

In addition, what happens if there is no plea agreement? Well, we have to set bail. Is a magistrate going to set bail on the president?

Then we have to set a trial date. And a trial date is a statement to the world that from May 5th to May 10th of whatever year this president will be in court defending himself against criminal charges. Does that constitute an impairment of a presidential function? I submit it does.

Well, it can be avoided. The president's lawyers can move under the Speedy Trial Act, under Section 3161(h)(8), for an adjournment of the trial until after the president's term has expired. But look what we've done. We've given a solitary judge, a trial judge, the power to decide whether this presidency shall survive or not. And if it's not a solitary judge, the decision may be appealed, so it's three judges.

The point is, the judiciary is now determining the fate of the presidency. And that constitutes an impermissible intrusion upon the executive and an impermissible ascension of legislative powers that the Constitution has vested in the House and in the Congress.

Lastly, the question of equal justice addressed by Mr. Rient. There is no question that the president is subject to prosecution after his term in the presidency expires. Presidential terms are for four years. As far as I understand it, there is no serious federal offense for which the statute of limitations is less than five years.

Now, even if you imagine a removal at the last month of a presidency, you're still within the statute of limitations for any crimes committed during the presidency. And if you or anyone in the Congress has any concern that the five-year statute of limitations isn't enough, it is certainly an easy thing to do to amend the federal statute of limitations or to toll it, in the instance of a president who is otherwise immune from prosecution during the term of the presidency.

It is not a question of equal justice; it's a question of whether individual grand jurors, petty jurors, prosecutors, shall take over and arrogate to themselves the power which the Constitution has vested in the House. Leon Jaworski very wisely, 24 years ago, said no; our system has worked wonderfully for 200 years, it works by vesting power in the House and in the Senate, and I am not about to change it.

I think that was the correct approach, I think it was prudent and I think it was compelled.

Thank you.

SEN. ASHCROFT: Thank you very much.

Mr. Cox. MR. COX: Thank you, Chairman Ashcroft, for inviting me to testify today on the important subject of whether a sitting president enjoys absolute immunity under the Constitution, not for (potential ?) reasons, but under the Constitution, from indictment for criminal offenses.

I believe that a sitting president has no such immunity and may indeed be indicted before impeachment.

As you noted, Mr. Chairman, my testimony today reflects not only my own views but also the views of my partner, Theodore Olson, who headed the Office of Legal Counsel in the Justice Department during the Reagan administration. I served as deputy in that office during the Bush administration. The Office of Legal Counsel is often charged by the executive branch with advising the president on the most difficult of constitutional issues. Both Mr. Olson and I come to the issue before the committee today with the utmost respect for the role of the president as chief executive under the Constitution.

Further, my view on today's topic are independent of the current controversy before the nation, and none of my remarks should be taken as referring directly to President Clinton or to any evidence that may have been developed by Judge Starr.

Rather than repeat my written testimony, I'd like to make a few points and then try and address some of the concerns raised by you, Mr. Chairman, and by Senator Torricelli and by the first panel.

It is undisputed that, at a minimum, all officials subject to impeachment other than the president are also subject to indictment before impeachment. This has been clear from the earliest days of the republic, with the case of Vice President Burr being the classic example.

Second, we know that the president is subject to at least forms of criminal process, because that was the rule in United States versus Nixon. We now know also that the president is subject to civil process and may be a civil defendant, from the Clinton versus Jones case.

These points demonstrate what a strange doctrine personnel immunity from indictment would be if it existed. It would be an immunity enjoyed only by the president. And it would be a partial immunity that extended neither to civil suits nor to procedures in criminal matters short of indictment.

The proponents of presidential immunity thus have a heavy burden to carry, Mr. Chairman. And in my view they have failed to identify the source of such immunity or to articulate a defensive and consistent rationale for the immunity.

Now, Mr. Chairman, in your opening remarks, you, in my view, ably reviewed the textual evidence. And one of the arguments that you made with which I agree is that we should draw an inference from the fact that members of Congress enjoy a partial immunity under the Speech and Debate Clause to deduce that the framers knew how to grant an immunity and that they choose not to grant one to the president.

Indeed, when you stop and think about it, the presidential immunity, which is an implied immunity, would be much broader, much greater in scope than the actual textual immunity that the framers bequeathed to us.

Professor Amar characterized that argument, Mr. Chairman, as a mistake, relying on United States versus Nixon. I believe, without having discussed it with him, he was referring to note 16 in that case, where the Supreme Court says that constitutional silence is not dispositive. And, Mr. Chairman, I don't understand you to have argued that it is dispositive. Rather, it is one piece of evidence -- a strong piece of evidence -- and given that the rest of the historical evidence is confused, that there are quotations on both sides, it is a piece of evidence that we should weigh very, very carefully.

We've already heard in several of the discussions, including discussions with Senator Torricelli, that there is sort of a battle of the quotes, what the framers thought. I think however you ultimately resolve that dispute, however any individual member of Congress resolves it, it nonetheless remains crystal clear that there is no clear-cut support in the historical documentation for the proposed immunity. And given that I believe the proponents of the immunity do have this burden of persuasion, the fact that it's a split decision cuts against creating such an immunity.

There's, finally, the argument that we've heard today that is addressed to the constitutional structure, the notion that the president is the one indispensable man under the Constitution as the head of the unitary executive branch, and thus that his indictment would incapacitate an entire branch, a risk not presented when a judge or the vice president is indicted.

I agree with the underpinnings of this argument. The president does have a unique role under the Constitution and is the head of a unitary executive branch. It is vitally important that the executive power be exercised forcefully. But defending that principle does not require the creation of a novel immunity for any individual.

Indeed, the Constitution itself, both as originally adopted and as subsequently amended, undercuts the indispensable man theory in a variety of ways, preeminently now by the 25th Amendment which provides a mechanism for the temporary replacement of the president when he is unable to discharge his duties.

Under this or any other possible scenario, were a sitting president to be indicted, the executive authority of the United States would continue to be exercised, and our constitutional order would be preserved.

Now, Professor Amar raised this morning an additional argument, that if an independent counsel indicts the president, he ceases to be an inferior officer in the Constitutional sense. In effect, he argues that there is a springing constitutional problem, that only comes out of the independent counsel statute in that event. As I understand that argument, I disagree with it, for several reasons.

First, inferior officers may clearly prosecute cases. There's no requirement that criminal indictments be brought only by principal officers. Second, the independent counsel statute is predicated on the notion that the independent counsel does have prosecutorial jurisdiction that extends to the president. Thus, Professor Amar's point seemed, to some extent, to be a quarrel with the rationale of Morrison (sp) versus Olson (sp) itself.

Finally, I think it's important to understand, that under the Supreme Court's decision in Morrison (sp) versus Olson (sp), in which they upheld the constitutionality of the independent counsel statute, the saving grace for the court, was the fact that the president remained, at all times, even at the moment of indictment, the constitutional superior of the independent counsel. He has, through the Attorney General, the power to remove the independent counsel for good cause. And, although we could argue about what constitutes good cause, that was sufficient for the Supreme Court to say that the constitutional verities have been upheld in the statute.

I think we need to be careful to avoid a rhetorical confusion between inferior officer in the constitutional sense, and inferior as we might use it in common parlance.

Let me make one last point, Mr. Chairman, as I see my time is running out. You opened by stating that you thought, initially at least, that the president was subject to criminal process, and could be indicted. But then you said, "Should he be indicted when impeachment isn't a viable option? I think not."

Let me offer two thoughts for you on that. You may wish to consult Judge Bork's proposed method of proceeding in the prosecution of Vice President Agnew, where he told the court that if they were allowed to proceed with the prosecution, it was their intent to continue gathering evidence. If the evidence warranted an indictment, they would have the indictment returned by the grand jury. That they would then, with the vice president's consent, postpone the indictment for a period of time, to let the House begin impeachment, if it saw fit. So that seems to me to play into your prudential concerns.

I would also note, in concluding, that the independent counsel may have other reasons why he may wish to have an indictment returned by the grand jury, even if he intends to defer to the House, among those to make the point that this is not simply the decision of a runaway solo prosecutor, but rather, it is a decision that is endorsed by 23 members of the grand jury. Thank you, Mr. Chairman.

SEN. ASHCROFT: Well, I thank each of you. And pleased to have your comments in this regard. Professor Teurkheimer, you sounded a note which has been a recurring note throughout the hearings this morning, that grand juries and petit juries and the like, and single judges, have inadequate sort of stature to deal with potential law- breaking by the president.

Is it your view that -- I guess I'm a bit troubled myself by the suggestion that what they deal with, is not important; that depriving any citizen of his or her liberty, it seems to me to be a very, very serious matter. And to say that they're plenty good to do that, but they are just not in the ballpark for making an assessment about whether a president of the United States has done the same, there seems to be some tension in that, in terms of I guess maybe the ranking of things. Do you have any discomfort with that?

MR. TEURKHEIMER: I have no discomfort with this, because we're not speaking about immunity, we're speaking about a deferral of the criminal process.

SEN. ASHCROFT: You know, you've mentioned that the federal statutes for important matters are five years. But I suspect there's quite a number of state infractions that would be less. And only recently have we had federal laws that even governed very serious offenses like murder. I mean, for much of the nation's history, in order to be prosecutable at all for murder, you had to have been prosecuted by state laws.

MR. TEURKHEIMER: Unless I misunderstand state law dramatically, there is no statute of limitations for murder.

SEN. ASHCROFT: That may well be for murder. But I'm talking about serious state offenses. There are a lot of serious state offenses that aren't covered in the federal codes. And I'm not arguing that they should be. But it seems to me that to reference only the federal statutes, makes it a little bit difficult to really think clearly about whether or not the statutes are relevant in this setting.

Mr. Rient, as an alternative to indictment, grand juries have traditionally had the power to issue presentments, or reports. What's the justification for issuing a presentment, rather than an indictment, and what role have presentments played historically?

MR. RIENT: Senator, I didn't catch the last part of the question. But as to the first part, the justification for issuing a presentment would really boil down to the proposition that it does not subject the subject of the presentment to the requirements of a trial, and the possibility of a punishment, in the event of a conviction. I mean, the presentment is simply a bald charge, or set of charges by the grand jury that certain things happened, and that in this case, if one were talking about the president, that the president participated in activities that the grand jury considers to have been criminal.

But it doesn't require that the mechanism of the criminal justice process then spring into action with an arraignment, and a setting of trial date, and motions, and trial, and all of the rest of that. It's just out there, the accusation.

And some have argued that that is, in a sense, unfair, because it doesn't allow the object of the presentment an opportunity to be publicly vindicated, and that might well be so, with respect to ordinary citizens, who don't share the access to the public media that a president does. But I think that in the case if a presentment were issued against a sitting president, it would be quite extraordinary that the president would not find it in his power to be able to respond quite effectively, even though it weren't in the context of a trial in a courtroom, which he probably would prefer to avoid in any event.

SEN. ASHCROFT: Is it your view that if there is no authority -- for instance, say that Professor Teurkheimer is correct, there's no capacity to indict a sitting president. Is it your view that it's inappropriate for an independent prosecutor to expend the resources and develop the case against a sitting president, if there is no potential for prosecution?

MR. RIENT: I'm not sure I would agree with that, Senator. The problem is that when you start a federal investigation, or a criminal investigation, federal or stat for that matter, you're not always clear about who is going to be involved in the thing. And even in this investigation by the special counsel, there have been suggestions, I think, that there may have been criminal acts committed by others than the president. And certainly the investigation should be allowed to continue, with respect to determining whether or not that is so.

SEN. ASHCROFT: Mr. Cox, I believe you addressed the so-called inferior officer argument. Is it your understanding that if you're going to categorize the independent counsel as an inferior officer, by virtue of the fact that he was not confirmed by the Senate of the United States, that that inferior officer would be inferior to other officers who might be subject to impeachment, who indeed were confirmed by the Senate of the United States?

MR. COX: Yes, Senator. He certainly would be, in the constitutional sense, inferior, and so, for example, you could imagine a situation in which an independent counsel, properly invoked under the independent counsel statute, uncovers a crime committed by the secretary of a cabinet agency, someone who has been confirmed, someone who, in that sense, is his constitutional superior, as a principal officer of the United States, and there would be no constitutional problem with that.

And indeed, again, that goes back to the very reason why Congress has seen fit to enact the independent counsel statute. It is to have these types of prosecutions brought against people who are prominent in the government, and who do tend to be, though are not exclusively, principal officers.

SEN. ASHCROFT: And it's your view that since that alleged infirmity of inferiorness doesn't contaminate, or otherwise prevent the independent counsel from bringing charges against other officers, it would similarly not prevent them from bringing charges against the president.

MR. COX: That's right, Senator.

SEN. ASHCROFT: Professor Amar seemed to indicate that -- I think it was his argument -- that the president is different. And I think we all agree to that. And that words like "advice and consent," become different at different places. I guess it's his argument that an inferior constitutional officer has a different relationship to the Presidency, because of its scale.

But you would disagree with that. The scale of the presidency, does not mean that the independent counsel would be inferior in a way which would disable him from bringing an indictment.

MR. COX: That's right. As I said, Senator, to the extent that I understand the professor's argument, I believe that there is no constitutional requirement that indictments of principal officers be brought by principal officers, and that there's no constitutional requirement, certainly as the Supreme Court has construed the Constitution, that the independent counsel could not indict a sitting president.

SEN. ASHCROFT: It's my understanding that grand jury indictments, presentments and reports, are generally made public. Does that comport with your understanding, generally? Any of you?

MR. COX: I'll defer to the prosecutors.

MR. RIENT (?): Yes, that is, Senator.

SEN. ASHCROFT: In the light of that fact, that Judge Starr's report to Congress will serve as a substitute for direct action by a grand jury, is there any particular argument that you all know of that would suggest why the report should be kept under seal?

MR. : Senator, I'm not aware of any reason to keep the report under seal. But I would take exception to your suggestion that the report serves as a substitute for an indictment. I think that that is implicated in the question that we're here today discussing. In my view, it does not serve as a substitute. The report simply is a transmission of information to the Congress for its aid, and for its use in deciding whether or not there exist grounds for impeachment.

It does not constitute the normal culmination of the criminal justice process that has already been set in motion by the appointment of a special counsel, and giving him of jurisdiction over the matters that he is supposed to investigate. And I would argue very strenuously, that that process ought to be allowed to continue to its normal conclusion.

It might be that the prosecutor would decide that, even though he has the authority to indict the sitting president, there are factors involved that would warrant a declination of prosecution, or that he might decide that it's important to -- or the grand jury might conclude -- that it's important to issue an indictment, but hold it pending the outcome of the impeachment process.

But I certainly wouldn't want to leave here thinking that I had agreed with the statement that the report is the equivalent of action by the grand jury of the type that would normally take place in the case of any other citizen.

SEN. ASHCROFT: I'm glad you clarified that. I don't think anybody was going to leap to that conclusion -- (off mike) -- perhaps reaching the conclusion that the independent counsel in this case is tending toward the same approach that Leon Jaworski tended toward, at which time he expressed the fact -- at which time --

Jaworski said that yes, you could indict presidents for certain things, but that he declined to do so.

MR. RIENT (?): Senator, in answer to your question with respect to Mr. Starr's report, I believe that once it's turned over to the House of Representatives, it's basically subject to the rules of the House. And obviously, they are free to set whatever rules they wish. My guess would be that if there will be any major action undertaken, based on the report, that at some point it will be public.

I'd like to just direct your attention though to something Mr. Rient just said, namely that the independent counsel has the discretion to indict the president or not. It seems to me that that more than anything tells us that there is something wrong here, if that's the case. An indicted president is a hobbled president. Should it be up to the discretion of a lawyer in the independent counsel's capacity to determine whether we do or do not have a hobbled presidency? And I submit that the answer is no. And the only way you can ensure that the answer is no is to say he doesn't have the power in the first place.

SEN. ASHCROFT: That's -- I understand that argument. I wish it were so that the only hobbling of a president could come from out-of- control prosecutors. I think we have seen circumstances -- not only now, but in prior situation where presidents and their own conduct results in substantial hobbling.

MR. COX: (?) And, senator, if I may just briefly respond to the professor's point, the prosecutor, as we have established, remains the president's constitutional inferior. He is, moreover, bound to follow the policies of the Department of Justice. He thus operates within a very narrow sphere of law. He is subject to oversight by the attorney general and by the special panel. How much more can a president be hobbled by the parade of horribles, of civil lawsuits brought by any civil litigant from anywhere in the country? And yet the Supreme Court has said that even that possibility, the private litigants, the people who are not subject to direction and control by federal officials, can bring the president into court, is not sufficient to create a constitutional violation.

SEN. ASHCROFT: I want to thank all of you for coming. I think this has been a very important first step in developing a sense of -- for the Congress -- of what the Constitution allows, requires, and perhaps what some of our responsibilities will be, particularly as we revisit the whole are of the independent counsel and the laws relating to such prosecutions and opportunities for them under the law next year. I appreciate the fact that you would make your views known. I have to say that I appreciate not only the fact that you have views, but that you carry them with some intensity. (Laughter.) I think that's indicative of the kind of understanding that most Americans have about liberty and about the freedoms that we enjoy in this country. And I thank you for your willingness to come and share them with the committee.

If you have additional remarks that you would like to make, or if you will share additional items in writing with the committee, we would be pleased to receive them promptly. Thank you very much. (Sounds gavel.)

Copyright © 1998 by Federal News Service, Inc. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person's original duties. Transcripts of other events may be found at the Federal News Service Web site, located at www.fnsg.com.

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