Corey Brettschneider is a professor of political science at Brown University and visiting professor of law at Fordham Law School. He is author of the forthcoming book, “The Oath and the Office: A Guide to the Constitution for Future Presidents.”
As President Trump faces deepening legal problems, the country must confront a vital question: Does the Constitution grant a sitting president immunity from criminal prosecution? According to the conventional wisdom, the Justice Department has decided the issue in the president’s favor. Yet there’s good reason to dispute that conclusion. Supreme Court case law suggests that the president should be denied this special privilege.
But let’s start by considering a troubling example from Israel, where the constitution explicitly gives the president immunity from criminal prosecution.
In 2006, Israeli President Moshe Katsav became embroiled in serious and credible allegations of sexual harassment and rape. But Katsav knew that as president, he couldn’t be indicted, much less criminally prosecuted. Of course, he could always be convicted after leaving office, so as part of a plea deal, he resigned in exchange for having rape charges dropped.
Katsav later rescinded the deal, opting to fight the charges. He was eventually sentenced to prison. But the whole episode had rankled the Israeli public, and regardless of the eventual conviction, the inherent unfairness of the situation was clear: Katsav had leveraged his office to try to lessen his punishment. Because of its grant of presidential immunity, Israel’s constitution made this unjust bargain possible.
Now Michael Cohen’s plea bargain, which implicates Trump in campaign finance violations, is raising the issue again. Will the president be immune from any charges that might be raised against him?
The disagreement about this question goes back to 1787, during the framing of the Constitution. James Wilson, a Pennsylvania delegate to the Constitutional Convention, believed that the president lacked immunity because the Constitution’s text did not grant it explicitly. Alexander Hamilton, however, believed that the president’s protection from criminal prosecution was implied by the structure of the Constitution; he wrote that impeachment, never prosecution, was the exclusive way to remove a sitting president.
With no explicit constitutional provision supporting presidential immunity — and no clear consensus from the framers — we need to turn to case law for answers. In the landmark 1974 case U.S. v. Nixon, the Supreme Court required President Richard Nixon to turn over those parts of his secret Oval Office tape recordings that were relevant to the Watergate criminal investigation. Nixon argued that his executive privilege allowed him to refuse. But the Supreme Court disagreed. In a unanimous decision, it determined that “the fundamental demands of due process of law in the fair administration of justice” are more important than shielding the presidency. Although this ruling did not deal with a criminal indictment of Nixon, it did establish an important principle: The president is not above the law.
In the 1997 case Clinton v. Jones, the Supreme Court came a step closer to establishing that presidents could be criminally indicted, ruling that President Bill Clinton could be sued in civil court over sexual advances he allegedly made while governor of Arkansas. Clinton’s lawyers argued that the president’s participation in a trial would imperil the executive branch because it would distract him from his complex and numerous responsibilities. But the court decided that this principle was outweighed by the requirement that litigants be able to seek justice when they are wronged. Clinton v. Jones dealt with a civil case, not a criminal one, but the court’s logic can and should extend to criminal cases, where the need to uphold justice and the rule of law is even more critical.
At the same time Clinton v. Jones was decided, independent counsel Ken Starr was investigating other alleged misconduct by Clinton. Although his team ultimately decided to issue a report to Congress instead, Starr did consider indicting Clinton, and his office produced a memo arguing that it was constitutionally permissible. Not surprisingly, the Clinton administration disagreed. In 2000, Clinton’s Office of Legal Counsel wrote a memo that essentially reiterated his legal team’s argument from Clinton v. Jones, now in the context of a criminal case. This argument — although it clashes with the Supreme Court’s rulings in U.S. v. Nixon and Clinton v. Jones — has become de facto Justice Department policy.
Deputy Attorney General Rod J. Rosenstein, the supervising attorney in the special counsel’s investigation, could yet decide to allow Mueller to seek an indictment of Trump — and he would have a sound precedent for doing so in the Nixon and Jones cases. A flawed Clinton-era legal memo should not be used to prevent an indictment in this or other investigations. The urgency of the current moment might require bold action by the Justice Department to defend the rule of law.
The oath of office requires the president to “protect and defend” the Constitution and the country’s laws — not to use them to hide from criminal responsibility. Israel learned the hard way about the harsh consequences of granting immunity to its president. The presidential office does not make its occupant too dignified to be subject to criminal indictment. The real indignity comes from allowing a president — whose office should be used to serve others — to commit self-serving crimes that go unpunished. Thankfully, unlike Israel’s, our Constitution does not explicitly spell out a grant of presidential immunity. The American people don’t have to make the same mistake.