Presidential Immunity

What's happening?

President Trump's decision to fire FBI Director James Comey backfired. 


Based on what Trump himself said his goal was in firing Comey ("When I decided to just do it, I said to myself, I said, 'You know, this Russia thing with Trump and Russia is a made-up story.'"), the last week has not gone well for the Trump administration.


On Wednesday, the Justice Department named a special counsel to oversee the investigation into the ties between the Trump administration and Russian operatives: Robert Mueller. If Trump's goal were to impede the investigation, any special counsel would be a step backward. But Mueller, former head of the FBI, close friend to James Comey, and reputation for being "inexhaustible, the embodiment of integrity", is formidable. (Side note, it's pronounced "Muller".)


Mueller is a special counsel, not a special prosecutor, though the terms have been misused regularly. A special counsel can be fired while a special prosecutor cannot. Special prosecutors typically pursue information relevant for impeachment and testify about their findings publicly. That's not the case for a special counsel. Mueller is investigating criminal activity on behalf of the Justice Department and his findings are private. Even if whatever he uncovers would be impeachable, if it's not criminal we won't know about it.


Beyond the Mueller investigation, there are two other investigations with different implications for both the Trump administration and the country. The Intelligence Committees in the House and the Senate are examining Russian influence on the election. And the Senate Judiciary Committee and House Oversight and Government Reform Committee are both looking into Michael Flynn's misconduct and, now, the reasons behind Trump's decision to fire Comey.

Why is it important?

There's elephant in the room: presidential immunity.


Any investigation outside Congress that involves the president will eventually collide with the issue of whether a sitting president can be indicted and criminally prosecuted.


The most common view is that presidents can't be prosecuted while in office. It's based on an idea stemming from the early 1800's—that state or federal prosecution would constitute an "obstruction or impediment" to the functioning of the executive branch as a whole.


During the investigation into President Bill Clinton's relationship with Monika Lewinsky, the New York Times concluded about presidential immunity that: "The short answer to one of the oldest of constitutional questions is that there is no clear answer. The Constitution's text, which sets out procedures for impeaching and removing executive branch officials and Federal judges from office, does not resolve the issue."

Debate it!

Should a sitting president be immune from criminal prosecution?


Presidential immunity places the president above the law. We're debate if that's a good thing or not; there's no doubt that it does. If Mueller finds sufficient evidence, he could bring a criminal case against any member of the executive branch—except the president. That's both impractical and immoral. 


The Constitution does not give the president immunity from prosecution. Article 1 gives the House "the sole power of impeachment" and the Senate "the sole power to try all impeachments," but does not even imply that the officials subject to impeachment cannot also be subject to prosecution. Modern scholars know that there was genuine disagreement about this exact issue among the founding fathers, and no explicit immunity was included in the Constitution—so, to quote legal expert Eric Freedman, "we must base our judgement on other considerations." Those other considerations are practical and moral ones.


It's impractical because prosecuting a president wouldn't impede the functioning of the government in a meaningful way—so the idea of the "unitary executive" no longer makes sense. The enlarged Cabinet supports the president and the nation has functioned in times when the president has been disabled.


It's immoral because the president is a representation of the American people, and subject to the laws that govern us. As Freedman put it, "In a system of representative democracy, The Law is us. Subjecting our highest officeholder
to The Law thus represents our collective determination to be responsible for our own destiny." 


Could the special counsel bring charges against the president? "He plainly could," Freedman concludes.


The president should be immune from prosecution—and it's a mistake to focus on criminal prosecution in the first place.


Journalist and legal expert Linda Greenhouse explains, "Under the theory of the ''unitary executive,'' the President is seen as uniquely embodying the executive branch. Since prosecution is an executive branch function, this theory goes, it is counter to the constitutional structure for the President to be subject to prosecution."


The Constitution backs up this theory. Section 1 of Article II states, "the executive power shall be vested in a President of the United States of America." So it makes sense that in 1974, White House counsel James St. Clair argued, "the Presidency is the only branch of government that is vested exclusively in one person by the Constitution. Since the President's powers include control over all Federal prosecutions, it is hardly reasonable or sensible to consider the President subject to such prosecutions." The same is true today.


In the Federalist papers, Alexander Hamilton wrote about impeachment that the president "would afterwards be liable to prosecution and punishment in the ordinary course of law." Afterwards.


But don't just take the Founding Fathers' word for it. Even if you're strongly against President Trump, focusing on criminal investigations is the wrong idea. These three investigations may come up with new, shocking information of criminal activity. But it's also possible that we already know the worst parts of the scandal from Trump's own statements. So, if you'd like to see Trump kicked out of office, it's a serious risk to spread the idea that there's a criminal charge that will change everything—as opposed to focusing on what we know now.

Learn more...

  1. Every Trump-Russia investigation happening now, in one place
    • "In one of the many signs that things aren’t going well for President Donald Trump, it’s become genuinely difficult to keep up with all the different government investigations related to his presidential campaign’s ties to Russia and its attempts to sway the 2016 election.
  2. Legal expert Eric Freedman: the case against presidential immunity
    • "The entire lack of serious scholarship on the subject may have left the impression that the Nixon-Agnew position [for presidential immunity] is the correct one. That impression, however, is false, and the argument should be rejected the next time it is raised by a President or Vice President."
  3. Legal experts Akhil Amar and Brian Kalt: the case for presidential immunity
    • "Although the long pedigree of this debate suggests that reasonable people can disagree, we believe that the best view of constitutional text, history, structure, and precedent supports the conclusion that Justice Story
      reached: Sitting Presidents cannot be prosecuted."
  4. Vox's explanation of the debate—and the best way to test it
    • "Jimmy Gurulé, a Notre Dame law professor and former senior federal prosecutor under both Presidents Bush, told me that would constitute obstruction of justice; under 18 USC Section 1505, it is a crime to "endeavor to influence, obstruct or impede … any pending proceeding … before any department or agency of the United States." The FBI investigation into Flynn is a "pending proceeding," and so if Trump tried to obstruct or impede it, that's a crime. A grand jury is also looking into Flynn; if Trump knew that before approaching Comey, Gurulé said, he could also be prosecuted for "attempt[ing] to influence or obstruct a grand jury investigation,” a charge carrying up to 20 years in prison.