Touro Law Review BLOG

By Nicholas Maggio

On August 21, 2018, President Donald Trump’s former personal attorney, Michael Cohen, admitted in federal court that, during the 2016 campaign, Mr. Trump ordered him to arrange payments for two women with the principal purpose of influencing the election.[1]  This is a recent development surrounding the special counsel investigation into whether Russia interfered with the 2016 United States Presidential elections. Investigators are looking into any coordination between the Trump election campaign and Russian officials and whether President Trump obstructed justice by lying or withholding information from the investigation.[2]  Most notable about Mr. Cohen’s admission is that it directly implicates the president as a co-conspirator in a proven federal crime.[3]

However, it remains unclear whether a sitting United States president can be indicted.  In 1973, the Department of Justice Office of Legal Counsel (“OLC”) issued a memo arguing that a sitting president could not be indicted.[4]  It reiterated this argument in 2000 after President Clinton’s sex scandal.[5]  The OLC argued that the nature of criminal proceedings, including the indictment process, would unduly interfere with the conduct of the president.[6]  The memos equated an  indictment to an incapacitation of the president.[7]  Accordingly, the memos concluded that indicting a sitting president would unconstitutionally impair the executive from executing his constitutional obligations.[8]

It is uncertain whether these are official Department of Justice policies.  The OLC argues that these memos are binding policies.[9]  Robert Mueller, the head of the special investigation, stated he would follow these memos as they relate to bringing an indictment.[10]  Nevertheless, legal scholars disagree whether the memos are binding authority of prosecutors and the Special Counsel.[11]  For instance, the arguments set forth in these memos are not settled law as they are neither found in statutes nor case law.  No court, including the Supreme Court of the United States, has heard a case or ruled on whether a sitting president can be indicted.

The author argues that prosecutors should bring their indictments and let the Supreme Court decide the constitutionality of their action.  The Department of Justice’s memos should not preclude this issue from going to the nation’s highest court.  Article 2, section 1, clause 6 of the United States Constitution provides the precedent conditions and procedure for replacing a sitting president.[12]  Specifically, the clause details that a president’s “inability to discharge the powers and duties of said office” shall allow for a new officer to act as the president until the disability is removed or a new president is elected.[13]  Clauses 3 and 4 of the 25th Amendment further clarify replacement procedures when a president can no longer discharge his duties.[14]  Thus, if an indictment would interfere with the President discharging his constitutional duties, we should utilize the provisions already in place.

The Constitution

There are no constitutional provisions dealing with whether a sitting president can be criminally indicted.  The recorded discussions during the Constitutional Convention do not help clarify the issue of presidential immunity from indictments either.[15]  Instead, the Constitution provides for the conditions under which a President may be removed from office.

In article 2, section 1, clause 6, the Constitution reads in relevant part: “[i]n Case of the . . . [i]nability to discharge the Powers and Duties of the said Office, . . . the Congress may by Law provide the Case of Removal . . . .”[16]  The records of the Federal Convention do not provide much clarity concerning how criminal indictments relate to this provision.[17]

The lack of case law on the subject forces one to turn towards peripheral, secondary sources of authority.  Some early analysis of the Constitution highlights how our system allows for indictments of officials in contrast to the English system.[18]  For instance, Patrick Henry, an American attorney and Founding Father, gave a speech suggesting that a President could be  indicted while in office.[19]  Modern legal scholars recognize founding figures’ conclusions that a President should not enjoy immunity from indictment while in office.[20]

The 25th Amendment

The 25th Amendment serves to clarify the order of succession and procedures in place to succeed a President.  However, there is a lack of law or instances that help define when one should invoke this amendment.  In relevant part, section 3 of the 25th Amendment reads that:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.[21]

Before passing the 25th Amendment, Congress conducted studies among legal scholars to determine what qualifies as an “inability” under the Constitution.[22]  While some survey responses contend that a disability should be defined as what the founders could have medically contemplated at their time, others argue that it is a practical matter concerning whether the president is discharging the duties of his office.[23]

There is only a small pool of Presidents that had their powers removed under the 25th Amendment.  In 1985, President Reagan penned a letter charging then-Vice President Bush with discharging presidential powers and duties.  This precipitated Reagan’s undergoing surgery, which left him temporarily incapacitated.[24]  President Reagan soon resumed his powers after his surgery.[25]  In 2002, President George W. Bush penned a letter discharging his duties to the Vice President under the 25th Amendment.[26]  This letter also preceded a medical procedure that required sedation.[27]  President Bush discharged his duties again in 2007 before another routine medical procedure that required sedation.[28]  He resumed his powers shortly thereafter both times.[29]

Office of Legal Counsel Memoranda

In 1973, the Department of Justice OLC drafted a memorandum arguing that a sitting President could not be indicted.[30]  The memo explained that the attention necessary to defend a criminal indictment would “interfere with the President’s unique duties.”[31]  Accordingly, the memo concluded that an indictment would frustrate a President’s ability to carry out his duties to such an extent that any proceeding should be deferred until after his term.[32]  In 2000, the OLC reaffirmed these conclusions with another memorandum.[33]

Federal prosecutors are expected to follow official Department of Justice policies and regulations.[34] While it has been an official practice of the Department of Justice to refrain from indicting a President, it is unclear whether doing so is an official policy.[35]  The official nature of these memoranda and their frequency suggest that federal prosecutors would be bound by them.

Indictment as a Disability

            History would lend itself to the notion that the 25th Amendment’s third and fourth clause are reserved for medical incapacities.  Even in letters to Congress before drafting the Amendment, legal scholars argued that a disability could only be understood as the founders understood intellectual illness.[36]  Yet, others still argued that the inability to discharge duties should extend to practical matters.[37]

For constitutional purposes, a mental or physical disability is worth considering because of the impairments it places on one to carry out their work.  In theory, we are not concerned with disabilities that do not impair an officer’s ability to produce a quality work product.  Accordingly, administration officials are solely concerned with circumstances that afflict one’s ability to practically function.  If a condition, either mental, physical, or legal, prevents a president from discharging his duties in any way, then that should be considered a disability sufficient for invoking the 25th Amendment.

History shows us that a President can still be effective while attending to legal proceedings.  In December of 1998, the House of Representatives introduced articles of impeachment against President Bill Clinton.  Still, he enjoyed a 68% approval rating and a 72% rating among Americans that felt he could be effective and lead successful foreign policy endeavors.[38]  Moreover, President Clinton deployed troops, after rallying support, to Serbia in March of 1999 (a month after his impeachment proceeding).[39]  This achievement complemented domestic accomplishments, too.  For instance, President Clinton, a member of the Democratic Party, was able to negotiate with the Republican Party (“GOP”) and agreed on paying dues to the United Nations (“UN”), doubling afterschool programs, and the 100,000 teacher initiative.[40]  In President Clinton’s case, attending to legal proceedings did not seem to debilitate him from executing his duties.  Nevertheless, the consequences of legal proceedings did not appear to impair the credibility or function of the government.

Insulating a President from indictment allows for a likely criminal actor to exercise powers in our nation’s highest office.  This circumstance was occasioned during Nixon’s presidency.[41]  Because of Nixon’s position, he secured funds to bankroll cover-ups of the Watergate scandal.[42]  These operations spanned across two terms.[43]  An indictment could have intercepted and stopped these operations sooner than an impeachment.

One rebuttal to this argument is that Congress is charged with removing a President when he does something dastardly.  It seems important to note that impeachment is a political process.  As such, its instigation is subject to the whims of politicians.  Its success also requires a two-thirds majority vote by Congress.  Accordingly, it is possible that a President can commit a federal offense without being removed from office.  It does not necessarily follow that because a President does something “dastardly,” he will be removed from office.

Conclusion

The Constitution provides for replacing a President while in office.  As a nation, we have seen this procedure carried out on several occasions.  Further, the President can execute both foreign and domestic initiatives with success while attending to legal matters and wrestling with the consequences of them.

Most importantly, perhaps, is that Congress could effectively insulate a President’s removal from office following an impeachment.  This serves to keep a person, likely guilty of crimes, with the gambit of executive power at his disposal.  Our experiences with President Nixon and his proclivity for cover-ups indicate why this is problematic.

In sum, not only does the Constitution provide for replacing a disabled sitting President, but our laws and history allow holding them accountable with an indictment.  It is not only permissible, but imperative, that we hold our chief executive accountable for his criminal behavior.  Thus, prosecutors should bring indictments and let the Supreme Court resolve the constitutionality of bring such allegations.

[1]  William K. Rashbaum et al., Michael Cohen Says He Arranged Payments to Women at Trump’s Direction, N.Y. Times (Aug. 21, 2018), https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html.

[2] Chris Strohm & Shannon Pettypiece, Mueller Weighs Putting Off Trump Obstruction Decision, Bloomberg (Mar. 12, 2018, 4:00 AM), https://www.bloomberg.com/news/articles/2018-03-12/mueller-is-said-to-weigh-putting-off-trump-obstruction-decision.

[3] Aaron Blake, Michael Cohen’s Plea Deal is Very Bad for Trump, Wash. Post (Aug. 21, 2018) https://www.washingtonpost.com/politics/2018/08/21/why-cohen-plea-deal-is-bad-trump-it-puts-him-very-close-an-actual-crime/?noredirect=on&utm_term=.d44a53a1ec1c (discussing Mr. Cohen pleading guilty to eight counts of financial crimes).

[4] Robert G. Dixon, Jr., Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office, Dep’t Just., Sept. 24, 1973, https://fas.org/irp/agency/doj/olc/092473.pdf.

[5] Randolph D. Moss, A Sitting President’s Amenability to Indictment and Criminal Prosecution, U.S. Dep’t Just., Oct. 16, 2000, https://www.justice.gov/file/19351/download.

[6] Id.

[7] Id.

[8] Id.

[9] Andrew Crespo, Is Mueller Bound by OLC’s Memos on Presidential Immunity?, Lawfare (July 25, 2017, 9:00 AM), https://www.lawfareblog.com/mueller-bound-olcs-memos-Presidential-immunity.

[10] Michael S. Schmidt et al., Mueller Won’t Indict Trump if He Finds Wrongdoing, Giuliani Says, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/mueller-trump-indictment.html.

[11] Crespo, supra note 9.

[12] U.S. Const. art. II, § 1, cl. 6.

[13] Id.

[14] U.S. Const. amend. XXV, § 3 (“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President”).

[15] Eric M. Freedman, The Law As King and the King As Law: Is A President Immune from Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7, 16 (1992).

[16] U.S. Const. art. II, § 1, cl. 6.

[17]  See generally Max Farrand, The Records of the Federal Convention (1911), http://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-3vols.

[18] William Rawle, A View of the Constitution of the United States of America 125-26 (1829), http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html.

[19] Speech of Patrick Henry, Am. Hist., June 5, 1788, http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php.

[20] Freedman, supra note 15, at 13-15.

[21] U.S. Const. amend. XXV, § 3.

[22] Problem of Presidential Inability: Hearings Before the Spec. Subcomm. to Study Presidential Inability of the Comm. on the Judiciary H.R., 84th Cong. 16 (1956) [hereinafter “Hearings”].

[23] Id. at 18.

[24] Ronald Reagan, Letter to the President Pro Tempore of the Senate and the Speaker of the House on the President’s Resumption of His Powers and Duties Following Surgery, Am. Presidency Project, July 13, 1985, http://www.presidency.ucsb.edu/ws/?pid=38884.

[25] Id.

[26] George W. Bush, Letter to Congressional Leaders on Temporary Transfer of the Powers and Duties of President of the United States, Am. Presidency Project, June 29, 2002, http://www.presidency.ucsb.edu/ws/?pid=63676.

[27] Id.

[28] Bush, supra note 26.

[29] George W. Bush, Letter to Congressional Leaders on Resuming the Powers and Duties of the President of the United States, Am. Presidency Project, July 21, 2007, http://www.presidency.ucsb.edu/ws/?pid=75573.  See also Bush, supra note 26.

[30] Dixon, Jr., supra note 4.

[31] Dixon, Jr., supra note 4.

[32] Moss, supra note 5.

[33] Dixon, Jr., supra note 4.

[34] 9-27.000 – Principles of Federal Prosecution, U.S. Dep’t Just., https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution (last updated Sept. 19, 2018).

[35] Schmidt, supra note 10.

[36] Hearings, supra note 22.

[37] Hearings, supra note 22.

[38] Presidential Approval Ratings – Bill Clinton, Gallup: News, https://news.gallup.com/poll/116584/Presidential-approval-ratings-bill-clinton.aspx (last visited Oct. 2, 2018).

[39] Samuel J. Sarver, Effects of the Impeachment on Bill Clinton’s Staff, Cabinet, Agenda, and Legacy, Ill. St. U., https://pol.illinoisstate.edu/downloads/conferences/2006/Sarver13.pdf (last visited Oct. 2, 2018).

[40] Id.

[41] See generally John W. Dean, Blind Ambition (1976); Carl Bernstein & Bob Woodward, All The President’s Men (1974); Bob Woodward & Carl Bernstein, The Final Days (1976).

[42] Id.

[43] Id.