Justice Fortas on Presidential Indictment

A few weeks ago I wrote on post on Balkinization announcing that I’ve come into possession of a previously unknown draft article written by Justice Fortas during Watergate (after he was no longer on the Court).  I’m going to figure out how to deliver this to the institution that holds the Justice’s papers. In the meantime, though, one observation that caught my attention was this:

“A President is accountable for criminal acts, if he has committed them, like any other citizen. He may be removed from office.  He may be prosecuted after impeachment and removal from office; and, in theory, nothing in the Constitution itself would bar indictment and prosecution even while he is in office–unwise and infeasible as this may be in practice. There is no constitutional difference in this respect between a President or Vice-President, a federal judge or any other civil officer of the United States–despite assertions to the contrary.”

The question of whether a President can be prosecuted while in office, of course, is very controversial.

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13 Responses

  1. Brett Bellmore says:

    I don’t see why this should be the least bit contraversial; The authors of the Constitution were perfectly capable of writing immunity into the Constitution’s language explicitly, when they intended for it. See Article 1, Section 6:

    “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

    Note the utter and complete absence of any comparable language in Article 2. That should, rightfully, settle the matter. Presidents do not have any more immunity from legal proceedings than any other citizen.

  2. Joe says:

    As with sovereign immunity and many other things, legal understandings from the Founding are a bit more complex than Brett “it is so simple, why is everyone confused” makes it out to be.

    For instance, who is going to prosecute? The President can pardon people. Can the President pardon him/herself? I personally agree that Clinton was liable for civil suit while in office but Brett’s “same as Joe Smoe” standard would provide no limited immunity to judges etc. at all.

  3. Ken Rhodes says:

    I gotta go with Brett on this one. As often as his opinions are different than my own, I almost always find his logic to be sound. And in this case, it seems clearcut to me, too.

    The framers did not leave the question unaddressed. If they took the pains to explicitly state some immunities for some public officials, but not for others, one has to assume they didn’t mean for those immunities to accrue to those others. We’ve had over 200 years to clean up that oversight, if it was one, and we haven’t done that either. So what’s the question about immunities?

    The issues raised above by Joe are separate questions. Who is going to prosecute? Well, don’t we have something called “Special Prosecutor?” Can the President grant himself a pardon? Hmmm … what does the Constitution say about that?

  4. JoeJP says:

    Who picks the “special prosecutor,” Ken Rhodes? If we want to be so literal, Scalia would probably be right under Morrison v. Olson that the President himself would have the final say there.

    As to the pardon power, literally, s/he would. I think there was an implicit understanding that one couldn’t decide one’s own case (going back to Coke), so maybe not. But, literally, the text doesn’t say that.

    What about limited immunity well recognized for judicial and other officers? I’m not talking complete immunity here. Under Brett’s lights, since the Constitution doesn’t explicitly say so, there should be NO immunity at all. They should be treated “like any other citizen.”

    I think a case can be made that Presidents can be prosecuted, just as I think Clinton was rightly subject to civil process. I just think the matter is quite more reasonably open to dispute than Brett’s literalist approach that as usual in those cases (1) ignores that we never were totally literal (2) tends to find the text to clearly say things it doesn’t quite clearly say.

  5. Brett Bellmore says:

    In this case, it’s more like not finding something it clearly doesn’t say. There’s no constitutional basis for any immunity other than a very limited immunity enjoyed my members of Congress.

    Who would prosecute a criminal President? The same people who’d prosecute a criminal janitor. Could the President abuse his position to order federal prosecutors to leave him alone?

    Sure, and Congress could impeach him over it.

    But, of course, it would have been contemplated that almost any conceivable criminal charge which would have been brought against a President would have been brought in state court, by state prosecutors, whom the President has no authority over. It’s not like he spends all his time for four years hiding in the District of Columbia, after all.

    Yes, having a President prosecuted for criminal acts would be awkward. Having a President immune from prosecution has proven more awkward, I think.

  6. JoeJP says:

    Like some degree of sovereign immunity for states, immunity was understood to be in some sense part of the “executive power” and “judicial power” vested by the Constitution. Art. I says “herein granted” as to powers. If we want to go be literal text, Art. II is more open-ended.

    A criminal janitor is prosecuted by a team lead by the chief executive officer and there is prosecutor discretion that goes to the top. When the CEO is the defendant, sort of a different situation. Thus, the controversy. The issue here is when Congress doesn’t want to impeach.

    We can play guessing games here, but the issue here is that there is reasonable debate. The idea the sitting President would be subject to prosecution, perhaps wrongful, by a single state opens up a lot of abuse. The idea of sovereign immunity has so much force even in this day and age that a Pinchot has a reasonable claim. Now we are supposed to “contemplate” Delaware could prosecute a sitting President?

    The issue here is a “sitting President” would be immune from prosecution. Congress can impeach and remove the President. After all, if this ever would happen, it would only happen for a very serious crime. One that takes a long time to prosecute. Again, your “just like everyone else” rule is more absolutist than all that.

  7. Brett Bellmore says:

    If they’d wanted a king, even a temporary one, they could have written that constitution. They didn’t.

    You think that maybe they wrote temporary, partial immunity into Article 1, and then just forgot to mention it in Article 2? Scrivener’s error, perhaps? Went without saying?

    What’s the point in writing these things down, if it doesn’t do you any good to leave something out that you didn’t want?

  8. JoeJP says:

    Waiting until the President leaves office (giving the legislative the power to remove) before you prosecute, perhaps for a capital crime, is not immediately what I think of when I think of “king.”

    I think that they wrote the Constitution with various implicit understandings, including many thinking there is some degree of sovereign immunity and limited immunity for judicial officers, even though that is not anywhere expressly listed. The leading voices of the era said as much. But, it isn’t literally there. They must be wrong.

    Single members of Congress are different than the sole chief executive officer who is in charge of prosecuting crimes. The provision is a limited immunity to address minor offenses that dealt with a matter of some historical precedent. Some note it might primary be of concern of private lawsuits, more prevalent in that era.

    The purpose is to insure a specific thing while not intending to give it too much weight, particularly when another part of the Constitution is involved. As I said, there is some logic to making a President liable. Since that provision is there, the case is not open. Same thing with the 1A. There would still be a freedom of speech w/o it, but it underlined the point.

  9. Ken Rhodes says:

    Joe, perhaps I’m confused about what Presidential crimes we’re talking about here, and what immunity. The Constitution is quite specific as to the details of immunity for Congressmen in Article 1. It doesn’t say they can’t be prosecuted by the State of Maryland for robbing a bank in Silver Spring.

    Likewise, Article 2 specifies what crimes the President can pardon, specifically “offenses against the United States.” So he, too, can be charged and tried in Maryland if (unexpectedly) he robs a bank in Silver Spring.

    Now, presumably the discussion here is not about robbing a bank, but the analogy is important to the conversation–if the President commits a felony that can be prosecuted under a jurisdiction other than Federal, the President cannot pardon himself. Likewise, if the President is charged in an impeachment proceeding, then he also cannot pardon himself (as specifically stated in Article 2, Section 2, paragraph 1.)

    Finally, “Who picks the Special Prosecutor?”

    Well, how about the three-judge panel charged with administering the Independent Counsel Act. Perhaps then he’d be called “Independent Counsel,” but the result is the same. Or maybe Congress.

  10. JoeJP says:

    The President does not have the power to pardon state crimes even if the state makes, e.g., harming U.S. postal workers a state crime. Such is how it always been understood [it growing from the power to prosecute FEDERAL laws] and perhaps suggests the peril of blind literalism.

    And, even then, that doesn’t mean s/he necessarily could be charged in the first place while in office. There is not “specific” statement as to the ability to charge the President while in office. At best, you have a (I’ll leave out the Latin) idea that the exception proves the rule. But, Congress and the President are different, which I suggested more than once. I’m sorry, don’t see any refutation of my arguments that this is at least reasonable.

    As to the SP, if you are going to start having the judiciary appoint prosecutors when Art. II says the President has “executive” power, or maybe Congress should (even though it doesn’t seem to be among the powers “hereby granted”), relying on literalism to say the President can be prosecuted is questionable. Or, selective.

  11. Ken Rhodes says:

    “As to the SP, if you are going to start having the judiciary appoint prosecutors when Art. II says the President has “executive” power, or maybe Congress should (even though it doesn’t seem to be among the powers “hereby granted”), relying on literalism to say the President can be prosecuted is questionable. Or, selective.”


    Who appointed Kenneth Starr?

  12. JoeJP says:

    Ken Rhodes the question misses the point.

    I cited Morrison v. Olson. Are you familiar with the case? It concerns the special counsel law. Scalia used a literal textual position to argue that it is unconstitutional. The President has “executive power” and such a major officer with executive powers cannot simply be appointed by three judges.

    He was in dissent. The majority interpreted the text in a somewhat less literal way. If you want to sometimes read the text literally (pardon power, prosecuting sitting Presidents) and sometimes not (executive officers appointed by judges), again you are using the text selectively.

  13. TS says:

    I’m curious whether any portion of this analysis was borrowed from the memo that Fortas’s then-judicial law clerk and now Harvard Lawprof (Martha Altschuler Field) had given to Fortas himself while a sitting justice. That memo is not present in Fortas’s papers at Yale and Field was not helpful (to me, at least) in trying to obtain a copy or the substance of it. The only way we have any knowledge of it is from a footnote in Laura Kalman’s biography on Fortas, presumably a mention made during an oral history with Field. Gerard, where did you find this memo (I’ve not found the Balkanization post)?