A Miscarriage of Justice
David Kirtlcy
Kenneth Starr, an independent counsel convened a grand jury to hand out an indictment against President William Jefferson Clinton. The facts of the case, briefly stated, are this: Independent counsel was engaged in the investigation of the President in connection with the Whitewater Arkansas land deals. During the course of his investigation, evidence was presented to the independent counsel suggesting an adulterous affair between William Jefferson Clinton and Monica Lewinsky, a White House intern. The President allegedly broke the law in his attempts to hide this affair from the Office of Independent Counsel. The charges include perjury, subornation of perjury, witness tampering, and obstruction of justice.
This case poses vital questions concerning the constitutional framework of our country. Lawyers for the petitioner, William Jefferson Clinton, asserted a privilege to delay the trial until after the President leaves office, citing his special role and responsibilities as chief executive officer of the United States. District Court Judge Hang M. Hi denied the President's motion and the case is here on appeal. This decision should be reversed.
The Constitution, being the supreme law of the land, must be understood as a rational document drafted by rational men. Any interpretation of the Constitution which would create an irrational situation must be an incorrect interpretation. Likewise, any law which would lead to a constitutionally untenable situation must be unconstitutional. Indicting the President leads inevitably to absurdity. Indictment necessarily implies the possibility of conviction, and conviction inevitably presents the possibility of imprisonment. It can scarcely be entertained that the Constitution intends for a sitting President to execute his office from the inside of a prison cell. Therefore, there is a strong presumption in favor of recognizing a Presidential immunity from prosecution.
The arguments proffered by the Independent Counsel to be unconvincing, depending on exceedingly vague and insubstantial notions of universal equality that do not weigh heavily when placed against the very direct and manifest consequences of an indicted Presidency. That the President enjoys extralegal benefits rightly according his important role in our national government should come as a surprise to no one. The effective administration of his duties demands this. Special accommodations to Presidential convenience hardly make him a "king." While advocates for the Independent Counsel are able to find some limited doctrinal support for their position, these scattered phrases ring hollow in light of concerns about the very structure of our government as well as in the light of recent historical experience with the President as a civil defendant.
The Office of the Presidency is occupied by a single individual, making it unique among the three branches of the federal government. While serving his term the President is primarily an aspect of the government, his character as a private citizen is fully secondary. The President is the Office of the Presidency, and vice versa. The people are perfectly within their right to press lawsuits against Bill Clinton, private citizen. However, Bill Clinton the private citizen has, for legal purposes, temporarily ceased to exist. He exists now only as the President, and consequently as the Presidency itself. People cannot sue the Presidency any more than they can sue Congress. The Presidency is answerable only to Congress and to the voters. Bill Clinton is answerable to the people only once he has been divested of the Presidency.
No judicial procedure may create a situation of which it might reasonably be presumed that the President would be significantly hindered in the execution of his official duties. That's not to say that the President enjoys absolute immunity from any sort of legal procedure. The Supreme Court ruled in the case of United States v. Nixon, 418 U.S. 683 (1974), the President must comply with subpoenas to offer up evidence, but only because this type of cooperation cannot reasonably be presumed to significantly hinder the execution of the President's duties. However, indefinite civil and criminal suits against the President clearly do not meet this same high standard. Stated simply, a sitting President may not be named as a defendant in either civil or criminal litigation.
Also, the actual text of the Constitution strongly supports the presumption of Presidential immunity. Article I, Section 3 of the Constitution reads: "Judgement in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy and Office of honor, Trust or Profit under the United States: but the party convicted shall nevertheless by liable and subject to Indictment, Trial, Judgement and Punishment, according to law." The exact phrasing of Article 3 is relevant here. If the President is not immune from indictment, then this passage would have no meaning: "but the party convicted shall nevertheless be liable and subject to Indictment." If the President were perpetually vulnerable to indictment, the Constitution would not make a special point of noting that the President is liable after he has been impeached.
Another section of the text which creates a strong presumption in favor of immunity is the power of the Presidential Pardon expressed in Article II, Section 2. "The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment." An indictment is not an impeachment, therefore a close textual reading strongly suggests that the President retains the authority to pardon himself. The role that the Pardon was intended to play within the Constitutional framework should also be examined. Its purpose is to protect the functioning of the executive branch from interference by the Judiciary. The Pardon is vital to the proper functioning of the executive branch, allowing it to protect itself from encroachments by the legislature and the judiciary. This principle holds true for the pardoning of the President himself even more so than for other executive officials.
The founders of the Constitution presumed that the President would be protected from indictment. Alexander Hamilton in the Federalist No. 69, explains: "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law." This quote clearly demonstrates the understanding held by the founders of impeachment and indictment as a process, with one following the other. The historical record supports a construction of a privilege of presidential immunity. Although such an immunity has not been recognized in the past, this is not surprising, since never before in our history has a sitting President been named as a criminal defendant. It is highly unlikely that President Clinton is the first American President in our two-hundred year history to have committed a technical violation of the law in his unofficial actions. The prudent practice of judicial noninterference dictated by tradition should not be lightly overturned.
In the case of Clinton v. Jones, the Supreme Court ruled that a civil suit against the President for his unofficial actions could proceed, judging that it would not significantly hinder him in the execution of his official duties. In his concurrence, Justice Breyer drew attention to the fact that this ruling might warrant review in the future if the practical assumptions upon which it was based proved to be untrue: "predicting the future is difficult, and I am skeptical. Should the majority's optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules…in order to implement the basic constitutional directive." With new knowledge acquired by difficult experience, we are now in a much stronger position to judge this matter. It is clear that mere administrative rules are unlikely to remedy this troubling situation. We have seen that the Paula Jones civil lawsuit has in fact significantly hindered the President, consuming unconscionable amounts of his time, and creating a difficult political situation both at home and abroad. The Judiciary has clearly hindered the President in his official sphere, and has therefore unconstitutionally violated of the principle of separation of powers.
If the President is to be exempted from lawsuits while in office, this creates legitimate concerns about the administration of justice. It is not impossible to imagine a President who commits serious criminal violations, and yet is not impeached by the Congress for political reasons. This is an unfortunate necessity of our governmental system of separation of powers. This necessary faith in the good will of the President to follow the laws is not unusual, nor out of proportion to other powers entrusted to him, such as his role as Commander in Chief or our armed forces and his absolute control over our nuclear arsenal. There were also constitutional flaws with the process of the House Judiciary Committee with regards to the articles of Impeachment. The committee found that: "High crimes and Misdemeanors…were meant to delineate only political offenses-acts that tend to subvert the constitutional framework of our national government." This is a dangerous precedent to adopt because it excludes many crimes which would be compelling reasons for removal from office, yet are not of a political nature. Murder and rape are crimes which are not of a political nature, and do nothing to subvert the constitution, but demonstrate such a serious offense against society that they fall within the "high crimes and misdemeanors" standard adopted by the Constitution. On the other hand, the doctrine proposed by former President Gerald Ford that "high crimes and misdemeanors" are "whatever the Congress says they are" is equally objectionable. The Constitution reads: "The 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." The exact meaning of these words is a fair subject of debate, but at the absolute minimum, they amount to a technical violation of the law. Congress is not constitutionally granted power to impeach the President if it disapproves of his policy decisions or if members dislike him personally. If Congress were to take such action, it might be proper for the court to intervene.
It cannot be constitutional for us to create a situation in which ordinary legal processes might be used to obstruct the President in the obstruction of his duties. This would give the judiciary unconstitutional power to influence functions and decisions which are purely executive. The very foundation of our constitutional system depends on this distinction.