Last week Israeli police officials recommended that state prosecutors indict Prime Minister Benjamin Netanyahu on a variety of corruption charges. The police allege that Netanyahu received about $300,000 in bribes over the last decade, most of which allegedly occurred after he took office as prime minister in 2009. Crucially, however, the police only have the authority to recommend charges against the prime minister. Under Israeli law, the final decision whether to bring charges rests with the attorney general, Avichai Mandelblit.
For Americans, the Netanyahu case inevitably invites comparisons to Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 presidential election. But there is a key difference. Although Israeli law empowers the attorney general to indict Israel’s prime minister, American law does not expressly make clear whether anyone other than the United States House of Representatives has the authority to indict the president. The uncertainty over the extent of Mueller’s jurisdiction could set the stage for a constitutional crisis if he ultimately decides to file charges directly against President Trump.
The constitutional question is straightforward: Is a sitting president immune from criminal indictment by federal or state prosecutors? Or, to put it another way, is the House of Representatives the only institution with the constitutional authority to bring criminal charges against the president?
I think the answer to both questions must be yes. The Constitution’s text, historical precedent, and compelling public policy considerations weigh strongly in favor of the conclusion that Congress is the only appropriate venue for adjudicating the alleged crimes of a sitting president. Any other approach entails enormous risks to our constitutional order. Indeed, in the toxic environment of contemporary American politics, the special counsel’s filing of criminal charges directly against the president would plunge the United States into dangerously unchartered territory with unpredictable consequences for our democratic institutions.
The Case against a Presidential Indictment
Any analysis of this immensely important issue must begin with the text of the Constitution. The question of whether the Constitution permits a presidential pre-impeachment indictment turns on the meaning of three provisions in the United States Constitution. The first is found in Article I, Section 2, which states:
- “The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.”
The second is Article I, Section 3, which states:
- “The Senate shall have the sole power to try all impeachments. . . . [N[o person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
The third and final provision is found in Article II, Section 4, which states:
- “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
It is a striking fact that the Constitution twice refers to the “sole” power of the House and Senate in the context of impeachment. Article I assigns to the House the “sole” power to impeach and assigns to the Senate the “sole” power to try an impeached president. Although the words “presidential immunity” appear nowhere in the Constitution, the plain language of Article I clearly suggests that Congress is the only institution authorized to sit in judgment of a sitting president’s alleged “treason, bribery, or other high crimes and misdemeanors.”
Indeed, why use the word “sole” unless it was intended to be exclusive? If a sitting president can be indicted by a federal prosecutor, and tried by a federal court, then the term “sole” in Article I would lose much of its meaning. The practical reality would be to render every United States District Court in the country the equal of the United States Senate when it comes to judging presidential misconduct. The separation of powers would exist in name only. If an Article III court has the power to try the president, then the federal judiciary effectively has just as much authority to remove a president from office as the Senate, even though Article I expressly gives to the Senate the “sole” power of removal. Investing such sweeping authority in Article III courts would undermine the delicate system of separation of powers established by the Constitution’s structure.
A High Constitutional Bar
An equally important point to consider is the fact that the Constitution sets an exceptionally high bar for impeaching and removing the president. Article I’s impeachment process requires the votes of a majority of House members—218 in the 435-seat chamber—to impeach the president, and a supermajority of senators—67 in the 100-seat chamber—to remove the president. The supermajority requirement makes sense. Removing a president from office effectively reverses the electorate’s judgment in the previous presidential election. The framers rightfully understood that such a monumental rejection of the popular will should require nothing less than a supermajority of the Senate to effectuate.
In contrast, the pre-impeachment indictment theory flies directly counter to majoritarian principles. If a supermajority vote is not the exclusive means to remove a president, then the Senate’s supermajority requirement offers little more than a toothless safeguard against countermajoritarian measures. Under the indictment theory, a president could be removed from office based on the decisions of one prosecutor, one judge, and 12 private citizens sitting as jurors. Such a scenario runs counter to the most basic understanding of majority rule. As the Justice Department’s Office of Legal Counsel pointed out in an October 2000 memo, allowing a sitting president to be indicted outside of the impeachment process “would place in the hands of a single prosecutor and grand jury the political power to interfere with the ability of a popularly elected president to carry out his constitutional functions.”
An Incarcerated President?
Yet another reason to doubt the constitutionality of a pre-impeachment indictment of the president is Article I’s explanation that the president is “subject to indictment, trial, judgment and punishment, according to law” after “conviction” and “removal from office.” A plain reading of Article I thus suggests that the president is only amenable to punishment after leaving office.
Here again, the problem arises of a single judge and jury overriding the results of a democratic election. If the Constitution’s impeachment clauses do not preclude prosecutors from hauling the president into a criminal trial, then ultimately a single federal judge and jury would have the authority to send a sitting president to prison. To the extent the president is held in custody during and after the trial, the Article III proceeding would effectively represent an end run around the 25th Amendment of the Constitution. Under that amendment, the removal of a president “unable to discharge the powers and duties” of the office is only permitted if the Vice President and a majority of Cabinet officers support the president’s removal in writing. But even then, if the president objects to the invocation of the 25th Amendment, permanent removal requires a “two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office.” Yet, the pre-impeachment indictment theory would permit the president's forced removal from office with no vice presidential support, no Cabinet blessing, and no congressional vote of any kind, let alone a supermajority vote.
Moreover, the argument that Article III courts may try a sitting president is also clearly inconsistent with Article I’s express prohibition on the Senate punishing a sitting president with anything other than removal from office. The paradoxical implications of the presidential indictment theory are jarring. Under this theory, the 100 members of the United States Senate lack the authority to sentence a president to prison, but a single judge and a single jury anywhere in the country possess the authority to imprison the president without going through the impeachment process and without invoking the 25th Amendment. That simply cannot be right as a matter of common sense.
The Historical Record
Fourth, and finally, the historical record shows that the chief prosecutors who have previously examined this question determined that the House has exclusive jurisdiction over presidential indictments. Although they both discovered evidence of presidential crimes, Special Prosecutor Leon Jaworski in the Watergate investigation and Independent Counsel Kenneth Starr in the Whitewater investigation ultimately decided to leave the prosecutorial decision-making to Congress.
It is not just outside counsel who have reached that conclusion. The Justice Department’s own Office of Legal Counsel authored careful and exhaustive memos in 1973 and 2000, both of which concluded that the House of Representatives has exclusive constitutional authority to bring criminal charges against the president. As Assistant Attorney General Randolph Moss explained in the October 2000 OLC opinion (which cited and reaffirmed the September 1973 OLC opinion), “the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers.” Hence, Moss wrote, the Justice Department concluded that “[w]here the President is concerned, only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment.”
To be sure, there were dissenters to the OLC memos, as Harvard Law Professor Andrew Crespo and former White House Counsel Bob Bauer recently pointed out on the Lawfare blog. For example, in a February 1974 report to Leon Jaworski, four attorneys on the Watergate Special Prosecution Force asserted that the president could be indicted because “[n]o principles are more firmly rooted in our traditions, or more at stake in the decision facing this office and the Grand Jury, than there shall be equal justice for all and that ‘no man in this country is so high that he is above the law.’” Similarly, in a May 1998 report to Kenneth Starr, Prof. Ronald Rotunda also concluded that the Constitution permits prosecutors to indict the president prior to impeachment, asserting that “[i]n this country, no one, even President Clinton, is above the law.”
But the critical point is that neither Jaworski nor Starr found those arguments persuasive enough to act on them. It is one thing to recommend a course of action, but it is another thing entirely to be personally responsible for the decision and all the constitutional consequences that ensue from it. Accordingly, both Jaworski and Starr concluded that the soundest approach was to leave the question of presidential indictment to the judgment of the House of Representatives.
Jaworksi and Starr were wise to do so. Even under the best of circumstances, when political consensus and domestic tranquility prevail in the land, the political ramifications of a single prosecutor taking it upon himself or herself to indict a sitting president are so far outside the democratic norms of American history as to be truly radical in nature.
A Dangerous Time in American History
But these are far from the best of times in American political life. The hyperpartisan, ultrapolarized political mood in this country is toxic, vicious, and highly combustible. For example, a December 2017 Washington Post poll found that a majority of Republicans and Democrats now view the other party as a serious threat to the nation, a disturbing finding that is wholly consistent with other surveys that find the highest levels of partisan distrust and animosity ever recorded. An October 2017 Pew Research Center survey found that divisions between Republicans and Democrats on “fundamental political values” have reached such unprecedented levels of intensity that “the magnitude of these [partisan] differences dwarfs other divisions in society, along such lines as gender, race and ethnicity, religious observance or education.”
At such a dangerously polarized and unsettled time, a pre-impeachment presidential indictment—with no historical precedents to justify it—would have the effect of pouring fuel on a raging fire. A January 2018 Economist/YouGov poll found that 60% of Republicans already believe there is a “deep state” in the federal government working to “overthrow” Trump. Amid such a profound atmosphere of distrust, it is highly likely that if Mueller departed from the Jaworski and Starr approach and indicted Trump, the reaction among the president’s supporters would be explosive.
Moreover, indicting Trump would almost certainly backfire on Mueller. It seems clear that Trump would respond by immediately firing Mueller and Deputy Attorney General Rod Rosenstein as well as anyone else in the Justice Department who stood in the president’s way. The ensuing partisan warfare would prod the Republican Congress to support the president’s action, especially in light of the increasingly close relationship between the Congressional GOP and Donald Trump. Congressional Republicans understand better than anyone that the GOP base is firmly and passionately behind the president. The latest polls show that 89% of Republicans approve of Trump’s handling of the presidency. If Mueller departs from precedent by indicting Trump directly, the special counsel would inadvertently give Trump and Congressional Republicans political cover for terminating the Russia investigation.
A presidential indictment would thus be a serious misjudgment by the special counsel. By breaking with the Watergate and Whitewater precedents, Mueller would shift the focus away from the issue of presidential misconduct and to the issue of prosecutorial overreach. Such a development would be a godsend for Trump. Indeed, who can doubt that Trump would masterfully stoke the fires of populist fury against Mueller and the Democratic minority in Congress in the event of an unprecedented presidential indictment?
Accordingly, it seems to me the conclusion is inescapable: now is not the time for employing novel constitutional theories to expand criminal jurisdiction over the president in ways never tried before. America in 2018 is simply too divided, too fragile, and too distrustful for Mueller to break with historical precedent by filing charges directly against the president.
So what should Mueller do if he finds clear proof that President Trump has committed high crimes? The safest course for the nation is for the special counsel to report his findings publicly, while leaving the ultimate disposition of the case to the judgment of the House of Representatives.
To be sure, it is entirely possible that in these hyperpartisan times the Republican-controlled House would ignore even incontrovertible evidence of criminal activity by the president. But even so, there will still be a remedy available for the American people. On November 6, 2018, all 435 House seats and 34 Senate seats are up for reelection. If later this year Mueller presents evidence of presidential crimes but the 115th Congress nonetheless refuses to initiate impeachment proceedings, it will not be the end of the story. The 116th Congress, which takes office in January 2019, will have an opportunity of its own to act on the special counsel’s evidence.
An Unresolved Issue
Needless to say, however, my opinion regarding presidential immunity is not universally shared. There are many others who argue that Mueller has the constitutional authority to bring charges against President Trump if the special counsel finds evidence of criminal wrongdoing by the president.
Strangely, however, there has been far less scholarship on the topic of presidential indictments than one would expect for such an important issue. The good news is the quality of the relatively small number of scholarly articles that address pre-impeachment indictments is outstanding. If you are interested, here are some excellent articles on the topic, and they come down on different sides of the issue: Akhil Reed Amar, On Prosecuting Presidents, 27 Hofstra L. Rev. 671 (1999); Akhil Reed Amar & Brian C. Kalt, The Presidential Privilege Against Prosecution, 2 Nexus 11 (1997); Eric M. Freedman, On Protecting Accountability, 27 Hofstra L. Rev. 677 (1999); Eric M. Freedman, The Law as King and the King as Law: Is a President Immune from Criminal Prosecution before Impeachment? 20 Hastings Constitutional L. Q. 7 (1992); Jonathan Turley, “From Pillar To Post”: The Prosecution Of American Presidents, 37 Am. Crim. L. Rev. 1049 (2000); Scott W. Howe, The Prospect of a President Incarcerated, 2 Nexus 86 (1997); Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale L. & Policy Rev. 53 (1999); Jay S. Bybee, Who Executes the Executioner, 2 Nexus 53 (1997); Terry Eastland, The Power to Control Prosecution, 2 Nexus 43 (1997); and Keith King, Indicting The President: Can A Sitting President Be Criminally Indicted?, 30 Southwestern U. L. Rev. 417 (2001).