A Sitting President's Amenability to Indictment and Criminal Prosecution

A Sntttimig P r e sid en ts Amemalbility to Imdidtmeimt and Crimimal

PiroseOTttiom

The in dictm ent o r cn m in al prosecution o f a sitting P resident would unconstitutionally underm ine the

cap acity o f the executive branch to p erform its constitutionally assigned functions

October 16, 2000

M em orandum O p in io n for t h e A tto rn ey G eneral

In 1973, the Department concluded that the indictment or criminal prosecution

of a sitting President would impermissibly undermine the capacity of the executive

branch to perform its constitutionally assigned functions. We have been asked

to summarize and review the analysis provided in support of that conclusion, and

to consider whether any subsequent developments in the law lead us today to

reconsider and modify or disavow that determination.1 We believe that the conclu­

sion reached by the Department in 1973 still represents the best interpretation

of the Constitution.

The Department’s consideration of this issue in 1973 arose in two distinct legal

contexts. First, the Office of Legal Counsel ( “ OLC” ) prepared a comprehensive

memorandum in the fall of 1973 that analyzed whether all federal civil officers

are immune from indictment or criminal prosecution while in office, and, if not,

whether the President and Vice President in particular are immune from indictment

or criminal prosecution while in office. See Memorandum from Robert G. Dixon,

Jr., Assistant Attorney General, Office of Legal Counsel, Re: A m en ability o f the

P residen t, Vice P resid en t and o th er C ivil O fficers to F ederal C rim inal Prosecution

w h ile in O ffice (Sept. 24, 1973) ( “ OLC M emo” ). The OLC memorandum con­

cluded that all federal civil officers except the President are subject to indictment

and criminal prosecution while still in office; the President is uniquely immune

from such process. Second, the Department addressed the question later that same

year in connection with the grand jury investigation of then-Vice President Spiro

Agnew. In response to a motion by the Vice President to enjoin grand jury pro­

ceedings against him, then-Solicitor General Robert Bork filed a brief arguing

that, consistent with the Constitution, the Vice President could be subject to indict­

ment and criminal prosecution. S ee Memorandum for the United States Con­

cerning the Vice President’s Claim of Constitutional Immunity (filed Oct. 5,

1973), In re P ro ceed in g s o f th e G rand Jury Im paneled D ecem ber 5, 1972:

1 Since that time, the Department has touched on this and related questions in the course of resolving other ques­

tions, see, e g . The President — Interpretation o f 18 U.S C. §603 as Applicable to Activities in the White H ouse,

3 Op. O.L.C. 31, 32 (1979); B n ef for the United States as Amicus Curiae in Support of Petitioner at 15 n 8, Clinton

v. Jones, 520 U.S. 681 (1997) (No. 95-1853), but it has not undertaken a comprehensive reexamination of the

matter. W e note that various lawyers and legal scholars have recently espoused a range of views of the matter

See, e .g , Impeachment o r Indictm ent• Is a Sitting President Subject to the Compulsory Criminal Process' Hearings

Before the Subcomm. on the Constitution, Federalism, and Property Rights o f the Senate Comm, on the Judiciary,

105th Cong (1998)

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A Sitting President's Amenability to Indictment and Criminal Prosecution

A pplication o f Spiro T. Agnew, Vice P residen t o f the U nited States (D. Md. 1973)

(No. 73-965) (“ SG B rie f’). In so arguing, however, Solicitor General Bork was

careful to explain that the President, unlike the Vice President, could not constitu­

tionally be subject to such criminal process while in office.

In this memorandum, we conclude that the determinations made by the Depart­

ment in 1973, both in the OLC memorandum and in the Solicitor General’s brief,

remain sound and that subsequent developments in the law validate both the

analytical framework applied and the conclusions reached at that time. In Part

I, we describe in some detail the Department’s 1973 analysis and conclusions.

In Part n , we examine more recent Supreme Court case law and conclude that

it comports with the Department’s 1973 conclusions.2

I.

A.

The 1973 OLC memorandum comprehensively reviewed various arguments both

for and against the recognition of a sitting President’s immunity from indictment

and criminal prosecution. What follows is a synopsis of the memorandum’s anal­

ysis leading to its conclusion that the indictment or criminal prosecution of a sit­

ting President would be unconstitutional because it would impermissibly interfere

with the President’s ability to carry out his constitutionally assigned functions

and thus would be inconsistent with the constitutional structure.

1.

The OLC memorandum began by considering whether the plain terms of the

Impeachment Judgment Clause prohibit the institution of criminal proceedings

against any officer subject to that Clause prior to that officer’s conviction upon

impeachment. OLC Memo at 2. The memorandum concluded that the plain terms

of the Clause do not impose such a general bar to indictment or criminal trial

prior to impeachment and therefore do not, by themselves, preclude the criminal

prosecution of a sitting President. Id. at 7.3

2 Implicit in the Department’s constitutional analysis o f this question in 1973 was the assumption that the President

would oppose an attempt to subject him to indictment or prosecution. We proceed on the same assumption today

and therefore do not inquire whether it would be constitutional to indict or try the President with his consent.

The Department’s previous analysis also focused exclusively on federal rather than state prosecution of a sitting

President. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns

that may be implicated by state cnminal prosecution o f a sitting President. See Clinton v Jones, 520 U S 681,

691 (1997) (noting that a state cnminal prosecution o f a sitting President would raise “ federalism and comity”

concerns rather than separation o f powers concerns)

3 In a memorandum prepared earlier this year, we concluded that neither the Impeachment Judgment Clause nor

any other provision o f the Constitution precludes the prosecution o f a former President who, while still in office,

was impeached by the House o f Representatives but acquitted by the Senate See Whether a Former President May

Continued

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The Impeachment Judgment Clause provides:

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 o r Profit under the United States: but the

Party convicted shall nevertheless be liable and subject to Indict­

ment, Trial, Judgment and Punishment, according to Law.

U.S. Const, art. I, § 3, cl. 7. The textual argument that the criminal prosecution

o f a person subject to removal by impeachment may not precede conviction by

the Senate arises from the reference to the “ Party convicted” being liable for

“ Indictment, Trial, Judgment and Punishment.” This textual argument draws sup­

port from Alexander Hamilton’s discussion of this Clause in The F ederalist Nos.

65, 69, and 77, in which he explained that an offender would still be liable to

criminal prosecution in the ordinary course of the law after removal by way of

impeachment. OLC Memo at 2.4

The OLC memorandum explained, however, that the use of the term ‘‘neverthe­

less” cast doubt on the argument that the Impeachment Judgment Clause con­

stitutes a bar to the prosecution o f a person subject to impeachment prior to the

termination of impeachment proceedings. Id. at 3. “ Nevertheless” indicates that

the Framers intended the Clause to signify only that prior conviction in the Senate

would not constitute a bar to subsequent prosecution, not that prosecution of a

person subject to impeachment could occur only after conviction in the Senate.

Id. “ The purpose of this clause thus is to permit criminal prosecution in spite

of the prior adjudication by the Senate, i.e., to forestall a double jeopardy argu­

m ent.” Id .5

Be Indicted and Tried f o r the Same Offenses f o r Which He Was Impeached by the House and Acquitted by the

Senate, 24 O p O L.C. I l l (2000)

4 In The Federalist No 69, Hamilton explained:

The President o f the Umted States would be liable to be impeached, tried, and upon conviction . .

removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course

of law. The person o f the King o f Great Britain is sacred and inviolable: there is no constitutional tribunal

to which he is amenable, no punishment to which he can be subjected without involving the cnsis of

a national revolution

The Federalist No. 69, at 416 (Alexander Hamilton) (Clinton Rossiter e d , 1961) (emphasis added). Similarly, in

The Federalist No 65, he stated

the punishment which may be the consequence o f conviction upon impeachment is not to terminate the

chastisement o f the offender. After having been sentenced to a perpetual ostracism from the esteem and

confidence and honors and emoluments of h is country, he will still be liable to prosecution and punishment

m the ordinary course o f law.

Id. at 3 98-99 (emphasis added). Moreover, in The Federalist No. 77, he maintained that the President is “ at all

times liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent

prosecution in the common course o f law ” Id. at 464 (emphasis added) In addition, Gouvemeur Morris stated

at the Convention that “ [a] conclusive reason fo r making the Senate instead of the Supreme Court the Judge of

impeachments, was that the latter was to try th e President after the trial of the impeachment.” 2 Records o f the

Federal Convention o f 1787, at 500 (Max Farrand ed., 1974).

5 In our recent memorandum exploring in detail the meaning o f the Impeachment Judgment Clause, we concluded

that the relationship between this clause and double jeopardy principles is somewhat more complicated than the

1973 OLC M emo suggests See Whether a Form er President May Be Indicted and Tried fo r the Same Offenses

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A Sitting President's Amenability to Indictment and Criminal Prosecution

The OLC memorandum further explained that if the text of the Impeachment

Judgment Clause barred the criminal prosecution of a sitting President, then the

same text would necessarily bar the prosecution of all other “ civil officers”

during their tenure in office. The constitutional practice since the Founding, how­

ever, has been to prosecute and even imprison civil officers other than the Presi­

dent while they were still in office and prior to their impeachment. See, e.g.,

id. at 4—7 (cataloguing cases). In addition, the conclusion that the Impeachment

Judgment Clause constituted a textual bar to the prosecution of a civil officer

prior to the termination of impeachment proceedings “ would create serious prac­

tical difficulties in the administration of the criminal law.” Id. at 7. Under such

an interpretation, a prosecution of a government official could not proceed until

a court had resolved a variety of complicated threshold constitutional questions:

These include, first, whether the suspect is or was an officer of

the United States within the meaning of Article II, section 4 of

the Constitution, and second, whether the offense is one for which

he could be impeached. Third, there would arise troublesome cor­

ollary issues and questions in the field of conspiracies and with

respect to the limitations of criminal proceedings.

Id. The memorandum concluded that “ [a]n interpretation of the Constitution

which injects such complications into criminal proceedings is not likely to be a

correct one.” Id. As a result, the Impeachment Judgment Clause could not itself

be said to be the basis for a presidential immunity from indictment or criminal

trial.

2.

The OLC memorandum next considered “ whether an immunity of the President

from criminal proceedings can be justified on other grounds, in particular the

consideration that the President’s subjection to the jurisdiction of the courts would

be inconsistent with his position as head of the Executive branch.” OLC Memo

at 18. In examining this question, the memorandum first considered the contention

that the express, limited immunity conferred upon members of Congress by the

Arrest and Speech or Debate Clauses of Article I, Section 6 of the Constitution

necessarily precludes the conclusion that the President enjoys a broader, implicit

immunity from criminal process.6 One might contend that the Constitution’s grant

fo r Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O L C at 128-30. Nothing in

our more recent analysis, however, calls into question the 1973 OLC M emo’s conclusions.

6 Article I, Section 6, Clause 1 provides

The Senators and Representatives shall . in all Cases, except Treason, Felony and Breach of the Peace,

be privileged from A rrest during their Attendance at the Session o f their respective Houses, and in going

Continued

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of a limited immunity to members of Congress reflects a determination that federal

officials enjoy no immunity absent a specific textual grant.

The OLC memorandum determined that this contention was not “ necessarily

conclusive.” OLC Memo at 18. “ [I]t could be said with equal validity that Article

I, sec. 6, clause 1 does not confer any immunity upon the members of Congress,

but rather limits the complete immunity from judicial proceedings which they

otherwise would enjoy as members of a branch co-equal with the judiciary.” Id.

Thus, in the absence of a specific textual provision withdrawing it, the President

would enjoy absolute immunity. In addition, the textual silence regarding the exist­

ence of a presidential immunity from criminal proceedings may merely reflect

the fact that it “ may have been too well accepted to need constitutional mention

(by analogy to the English Crown), and that the innovative provision was the

specified process of impeachment extending even to the President.” Id. at 19.

Finally, the historical evidence bearing on whether or not an implicit presidential

immunity from judicial process was thought to exist at the time of the Founding

was ultimately “ not conclusive.” Id. at 20.

3.

The OLC memorandum next proceeded to consider whether an immunity from

indictment or criminal prosecution was implicit in the doctrine of separation of

powers as it then stood. OLC Memo at 20. After reviewing judicial precedents

and an earlier OLC opinion,7 id. at 21-24, the OLC memorandum concluded that

“ under our constitutional plan it cannot be said either that the courts have the

same jurisdiction over the President as if he were an ordinary citizen or that the

President is absolutely immune from the jurisdiction of the courts in regard to

any kind of claim.” Id. at 24. As a consequence, “ [t]he proper approach is to

find the proper balance between the normal functions of the courts and the special

responsibilities and functions of the Presidency.” Id.

The OLC memorandum separated into two parts the determination of the proper

constitutional balance with regard to the indictment or criminal prosecution of

a sitting President. First, the memorandum discussed whether any of the consider­

ations that had lead to the rejection of the contention that impeachment must pre­

cede criminal proceedings for ordinary civil officers applied differently with

respect to the President in light o f his position as the sole head of an entire branch

of government. Id.8 Second, the memorandum considered “ whether criminal pro­

to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned

in any other Place

7 See M emorandum from Robert G Dixon, Jr , Assistant Attorney General, Office of Legal Counsel, Re Presi­

dential Am enability to Judicial Subpoenas (June 25, 1973).

8 W e note that the statements quoted in footnote 4 above from The Federalist Papers and Gouvemeur Moms,

which provide that the President may be prosecuted after having been tried by the Senate, are consistent with the

conclusion that the President may enjoy an immunity from cnm inal prosecution while in office that other civil

officers do not The quoted statements are not dispositive o f this question, however, as the OLC memorandum

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ceedings and execution of potential sentences would improperly interfere with the

President’s constitutional duties and be inconsistent with his status.” Id.

a.

The OLC memorandum’s analysis of the first of these questions began with

a consideration of whether the nature of the defendant’s high office would render

such a trial “ too political for the judicial process.” OLC Memo at 24. The memo­

randum concluded that the argument was, as a general matter, unpersuasive.

Nothing about the criminal offenses for which a sitting President would be tried

would appear to render the criminal proceedings “ too political.” The only kind

of offenses that could lead to criminal proceedings against the President would

be statutory offenses, and “ their very inclusion in the Penal Code is an indication

of a congressional determination that they can be adjudicated by a judge and

jury.” Id. In addition, there would not appear to be any “ weighty reason to dif­

ferentiate between the President and other officeholders” in regard to the “ polit­

ical” nature of such a proceeding “ unless special separation of powers based

interests can be articulated with clarity.” Id. at 25.

The memorandum also considered but downplayed the potential concern that

criminal proceedings against the President would be “ too political” either because

“ the ordinary courts may not be able to cope with powerful men” or because

no fair trial could be provided to the President. Id. Although the fear that courts

would be unable to subject powerful officials to criminal process “ arose in Eng­

land where it presumably was valid in feudal time,” “ [i]n the conditions now

prevailing in the United States, little weight is to be given to it as far as most

officeholders are concerned.” Id. Nor did the memorandum find great weight in

the contention that the President, by virtue of his position, could not be assured

a fair criminal proceeding. To be sure, the memorandum continued, it would be

“ extremely difficult” to assure a sitting President a fair trial, id., noting that it

“ might be impossible to impanel a neutral jury.” Id. However, “ there is a serious

‘fairness’ problem whether the criminal trial precedes or follows impeachment.”

Id. at 26. And “ the latter unfairness is contemplated and accepted in the impeach­

ment clause itself, thus suggesting that the difficulty in impaneling a neutral jury

should not be viewed, in itself, an absolute bar to indictment of a public figure.”

Id.

The OLC memorandum next considered whether, in light of the President’s

unique powers to supervise executive branch prosecutions and assert executive

recognized Some statements by subsequent commentators may be read to contemplate cnminal prosecution of incum­

bent civil officers, including the President See, e g., William Rawle, A View o f the Constitution o f the United States

o f America 215 (2d ed 1829) ( “ But the ordinary tnbunals, as we shall see, are not precluded, either before or

after an impeachment, from taking cognizance o f the public and official delinquency.” ). There is also James W ilson’s

statement in the Pennsylvania ratification debates that “ far from being above the laws, he [the President] is amenable

to them in his pnvate character as a citizen, and in his public character by impeachment." 2 The D ebates in the

Several State Conventions on the Adoption o f the Federal Constitution 480 (Jonathan Elliot ed , 2d ed. 1836).

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privilege, the constitutional balance generally should favor the conclusion that a

sitting President may not be subjected to indictment or criminal prosecution. Id.

at 26. According to this argument, the possession of these powers by the President

renders the criminal prosecution o f a sitting President inconsistent with the con­

stitutional structure. It was suggested that such powers, which relate so directly

to the President’s status as a law enforcement officer, are simply incompatible

with the notion that the President could be made a defendant in a criminal case.

The memorandum did not reach a definitive conclusion on the weight to be

accorded the President’s capacity to exercise such powers in calculating the con­

stitutional balance, although it did suggest that the President’s possession of such

powers pointed somewhat against the conclusion that the chief executive could

be subject to indictment or criminal prosecution during his tenure in office.

In setting forth the competing considerations, the memorandum explained that,

on the one hand, “ it could be argued that a President’s status as defendant in

a criminal case would be repugnant to his office of Chief Executive, which

includes the power to oversee prosecutions. In other words, just as a person cannot

be judge in his own case, he cannot be prosecutor and defendant at the same

time.” Id. This contention “ would lose some of its persuasiveness where, as in

the W atergate case, the President delegates his prosecutorial functions to the

Attorney General, who in turn delegates them [by regulation] to a Special Pros­

ecutor.” Id. At the same time, the status of the Watergate Special Prosecutor

was somewhat uncertain, as “ none of these delegations is, or legally can be,

absolute or irrevocable.” Id. The memorandum suggested, therefore, that even

in the Watergate matter there remained the structural anomaly of the President

serving as the chief executive and the defendant in a federal prosecution brought

by the executive branch.9

The OLC memorandum also considered the degree to which a criminal prosecu­

tion of a sitting President is incompatible with the notion that the President pos­

sesses the power to assert executive privilege in criminal cases. The memorandum

suggested that “ the problem of Executive privilege may create the appearance

of so serious a conflict of interest as to make it appear improper that the President

should be a defendant in a criminal case.” Id. “ If the President claims the privi­

lege he would be accused of suppressing evidence unfavorable to him. If he fails

to do so the charge would be that by making available evidence favorable to

him he is prejudicing the ability o f future Presidents to claim privilege.” Id. Ulti­

9 This particular concern might also “ lose som e of its persuasiveness” with respect to a prosecution by an inde­

pendent counsel appointed pursuant to the later-enacted Ethics in Government Act of 1978, 28 U.S.C §§49, 591

et seq , whose status is defined by statute rather than by regulation. In Morrison v. Olson, 487 U S 654 (1988),

the Supreme Court rejected the argument that the independent counsel’s statutory protection from removal absent

“ good cau se” or some condition substantially impairing the performance of his duties, id. at 663, violates the

Appointments Clause, U.S Const art. II, §2, cl. 2, or separation o f powers principles more generally, 487 U S.

at 685-96. But since the 1973 OLC memorandum did not place appreciable weight on this argument in determining

a sitting President’s amenability to criminal prosecution, and since we place no reliance on this argument at all

in our reconsideration and reaffirmation of the 1973 memorandum’s conclusion, see infra part IIB, we need not

further explore M orrison's relevance to this argument

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mately, however, the memorandum did not conclude that the identification of the

possible incompatibility between the exercise of certain executive powers and the

criminal prosecution of a sitting President sufficed to resolve the constitutional

question whether a sitting President may be indicted or tried.

b.

The OLC memorandum then proceeded to the second part of its constitutional

analysis, examining whether criminal proceedings against a sitting President

should be barred by the doctrine of separation of powers because such proceedings

would “ unduly interfere in a direct or formal sense with the conduct of the Presi­

dency.” OLC Memo at 27. It was on this ground that the memorandum ultimately

concluded that the indictment or criminal prosecution of a sitting President would

be unconstitutional.

As an initial matter, the memorandum noted that in the Burr case, see U nited

States v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694), President Jefferson

claimed a privilege to be free from attending court in person. OLC Memo at

27. Moreover, “ it is generally recognized that high government officials are

excepted from the duty to attend court in person in order to testify,” and “ [t]his

privilege would appear to be inconsistent with a criminal prosecution which nec­

essarily requires the appearance of the defendant for pleas and trial, as a practical

matter.” Id. The memorandum noted, however, that the privilege against personal

appearance was “ only the general rule.” Id. The memorandum then suggested

that the existence of such a general privilege was not. by itself, determinative

of the question whether a sitting President could be made a defendant in a criminal

proceeding. “ Because a defendant is already personally involved in a criminal

case (if total immunity be laid aside), it may be questioned whether the normal

privilege of high officials not to attend court in person applies to criminal pro­

ceedings in which the official is a defendant.” Id.

Even though the OLC memorandum suggested that the existence of a general

privilege against personal appearance was not determinative, the memorandum did

conclude that the necessity of the defendant’s appearance in a criminal trial was

of great relevance in determining how the proper constitutional balance should

be struck. By virtue of the necessity of the defendant’s appearance, the institution

of criminal proceedings against a sitting President ‘‘would interfere with the Presi­

dent’s unique official duties, most of which cannot be performed by anyone else.”

Id. at 28. Moreover, “ [djuring the past century the duties of the Presidency . . .

have become so onerous that a President may not be able fully to discharge the

powers and duties of his office if he had to defend a criminal prosecution.” Id.

Finally, “ under our constitutional plan as outlined in Article I, sec. 3, only the

Congress by the formal process of impeachment, and not a court by any process

should be accorded the power to interrupt the Presidency or oust an incumbent.”

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Id. The memorandum rejected the argument that such burdens should not be

thought conclusive because even an impeachment proceeding that did not result

in conviction might preclude a President from performing his constitutionally

assigned duties in the course of defending against impeachment. In contrast to

the risks that would attend a criminal proceeding against a sitting President, “ this

is a risk expressly contemplated by the Constitution, and is a necessary incident

of the impeachment process.” Id.

As a consequence of the personal attention that a defendant must, as a practical

matter, give in defending against a criminal proceeding, the memorandum con­

cluded that there were particular reasons rooted in separation of powers concerns

that supported the recognition o f an immunity for the President while in office.

With respect to the physical disabilities alone imposed by criminal prosecution,

‘‘in view of the unique aspects of the Office of the President, criminal proceedings

against a President in office should not go beyond a point where they could result

in so serious a physical interference with the President’s performance of his offi­

cial duties that it would amount to an incapacitation.” Id. at 29. To be sure, the

concern that criminal proceedings would render a President physically incapable

of performing constitutionally assigned functions would not be “ quite as serious

regarding minor offenses leading to a short trial and a fine.” Id. But “ in more

serious matters, i.e., those which could require the protracted personal involvement

of the President in trial proceedings, the Presidency would be derailed if the Presi­

dent were tried prior to removal.” Id.

The OLC memorandum also explained that the “ non-physical yet practical

interferences, in terms of capacity to govern” that would attend criminal pro­

ceedings against a sitting President must also be considered in the constitutional

balance o f competing institutional interests. Id. In this regard, the memorandum

explained that ‘ ‘the President is the symbolic head of the Nation. To wound him

by a criminal proceeding is to hamstring the operation o f the whole governmental

apparatus, both in foreign and domestic affairs.” Id. at 30. In light of the conclu­

sion that an adjudication o f the President’s criminal culpability would be uniquely

destabilizing to an entire branch o f government, the memorandum suggested that

“ special separation of powers based interests can be articulated with clarity”

against permitting the ordinary criminal process to proceed. Id. at 25. By virtue

of the impact that an adjudication of criminal culpability might have, a criminal

proceeding against the President is, in some respects, necessarily political in a

way that criminal proceedings against other civil officers would not be. In this

respect, it would be “ incongruous” for a “ jury of twelve” to undertake the

“ unavoidably political” task of rendering judgment in a criminal proceeding

against the President. Id. at 30. “ Surely, the House and Senate, via impeachment,

are more appropriate agencies for such a crucial task, made unavoidably political

by the nature o f the ‘defendant.’ ” Id. The memorandum noted further that “ [t]he

genius of the jury trial” was to provide a forum for ordinary people to pass on

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“ matters generally within the experience or contemplation of ordinary, everyday

life.” Id. at 31. The memorandum therefore asked whether it would “ be fair to

such an agency to give it responsibility for an unavoidably political judgment

in the esoteric realm of the Nation’s top Executive.” Id.

In accord with this conclusion about the propriety of leaving such matters to

the impeachment process, the memorandum noted that “ [u]nder our developed

constitutional order, the presidential election is the only national election, and

there is no effective substitute for it.” Id. at 32. A criminal trial of a sitting Presi­

dent, however, would confer upon a jury of twelve the power, in effect, to overturn

this national election. “ The decision to terminate this mandate . . . is more fit­

tingly handled by the Congress than by a jury, and such congressional power

is founded in the Constitution.” Id. In addition, the impeachment process is better

suited to the task than is a criminal proceeding because appeals from a criminal

trial could “ drag out for months.” Id. at 31. By contrast, “ [t]he whole country

is represented at the [impeachment] trial, there is no appeal from the verdict, and

removal opens the way for placing the political system on a new and more healthy

foundation.” Id.

4.

The OLC memorandum concluded its analysis by addressing “ [a] possibility

not yet mentioned,” which would be “ to indict a sitting President but defer further

proceedings until he is no longer in office.” OLC Memo at 29. The memorandum

stated that “ [f]rom the standpoint of minimizing direct interruption of official

duties — and setting aside the question of the power to govern — this procedure

might be a course to be considered.” Id. The memorandum suggested, however,

that “ an indictment hanging over the President while he remains in office would

damage the institution of the Presidency virtually to the same extent as an actual

conviction.” Id. In addition, there would be damage to the executive branch

“ flowing from unrefuted charges.” Id. Noting that “ the modem Presidency, under

whatever party, has had to assume a leadership role undreamed of in the eighteenth

and early nineteenth centuries,” the memorandum stated that “ [t]he spectacle of

an indicted President still trying to serve as Chief Executive boggles the imagina­

tion.” Id. at 30.

The memorandum acknowledged that, “ it is arguable that . . . it would be pos­

sible to indict a President, but defer trial until he was out of office, without in

the meantime unduly impeding the power to govern, and the symbolism on which

so much of his real authority rest.” Id. at 31. But the memorandum nevertheless

concluded that

[g]iven the realities of modem politics and mass media, and the

delicacy of the political relationships which surround the Presidency

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both foreign and domestic, there would be a Russian roulette aspect

to the course of indicting the President but postponing trial, hoping

in the meantime that the power to govern could survive.

Id. In light of the effect that an indictment would have on the operations of the

executive branch, “ an impeachment proceeding is the only appropriate way to

deal with a President while in office.” Id. at 32.

In reaching this conclusion regarding indictment, the memorandum noted that

there are “ certain drawbacks,” such as the possibility that the statute of limitations

might run, thereby resulting in “ a complete hiatus in criminal liability.” Id. As

the statute of limitations is ultimately within the control of Congress, however,

the memorandum’s analysis concluded as follows: “ We doubt . . . that this gap

in the law is sufficient to overcome the arguments against subjecting a President

to indictment and criminal trial while in office.” Id.

B.

On October 5, 1973, less than two weeks after OLC issued its memorandum,

Solicitor General Robert Bork filed a brief in the United States District Court

for the District of Maryland that addressed the question whether it would be con­

stitutional to indict or criminally try a sitting President. Then-Vice President

Agnew had moved to enjoin, principally on constitutional grounds, grand jury

proceeding against him. See SG B rief at 3. In response to this motion, Solicitor

General Bork provided the court with a brief that set forth “ considerations based

upon the Constitution’s text, history, and rationale which indicate that all civil

officers of the United States other than the President are amenable to the federal

criminal process either before o r after the conclusion of impeachment pro­

ceedings.” Id .10

1.

As had the OLC memorandum, the Solicitor General’s brief began by noting

that “ [t]he Constitution provides no explicit immunity from criminal sanctions

for any civil officer.” SG Brief at 4. Indeed, the brief noted that the only textual

grant of immunity for federal officials appears in the Arrest and Speech or Debate

Clauses of Article I, Section 6. In referring to these clauses, the brief rejected

the suggestion that the immunities set forth there could be understood to be a

partial withdrawal from members o f Congress of a broader implicit immunity that

all civil officers, including the President, generally enjoyed; indeed, “ [t]he intent

10 Unlike the OLC memorandum, the Solicitor General’s brief did not specifically distinguish between indictment

and other phases o f the “ criminal process” W hile explaining that “ the President is immune from indictment and

trial prior to removal from office,” SG Brief at 20, the brief did not specifically opine as to whether the President

could be indicted as long as further process was postponed until he left office.

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of the Framers was to the contrary.” SG Brief at 5.11 In light of the textual omis­

sion of any express grant of immunity from criminal process for civil officers

generally, “ it would require a compelling constitutional argument to erect such

an immunity for a Vice President.” Id.

In considering whether such a compelling argument could be advanced, the brief

distinguished the case of the President from that of the Vice President. Although

the Vice President had suggested that the Impeachment Judgment Clause itself

demonstrated that ‘ ‘impeachment must precede indictment’’ for all civil officers,

the records of the debates of the constitutional convention did not support that

conclusion. Id. The Solicitor General argued, in accord with the OLC memo­

randum, that the “ principal operative effect” of the Impeachment Judgment

Clause ‘‘is solely the preclusion of pleas of double jeopardy in criminal prosecu­

tions following convictions upon impeachments.” Id. at 7. In any event, the

discussion of the Impeachment Judgment Clause in the convention focused almost

exclusively on the Office of the President, and “ the Framers did not debate the

question whether impeachment generally must precede indictment.” Id. at 6.

To the extent that the convention did debate the timing of impeachment relative

to indictment, the brief explained, the convention records “ show that the Framers

contemplated that this sequence should be mandatory only as to the President.”

Id. Moreover, the remarks contained in those records “ strongly suggest an under­

standing that the President, as Chief Executive, would not be subject to the ordi­

nary criminal process.” Id. The Framers’ “ assumption that the President would

not be subject to criminal process” did not, however, rest on a general principle

applicable to all civil officers. Id. Instead, the assumption was “ based upon the

crucial nature of his executive powers.” Id. As the brief stated:

The President’s immunity rests not only upon the matters just dis­

cussed but also upon his unique constitutional position and powers

. . . . There are substantial reasons, embedded not only in the con­

stitutional framework but in the exigencies of government, for

distinguishing in this regard between the President and all lesser

officers including the Vice President.

Id. at 7.

2.

In explaining why, as an initial matter, the Vice President could be indicted

and tried while still in office, the brief argued that indictment would not effect

the de facto removal of that officer. SG Brief at 11. “ [I]t is clear from history

11 In this respect, the Solicitor General’s brief more forcefully rejected this suggestion than did the OLC m em o­

randum, which reasoned that the clauses gave rise “ with equal validity” to competing inferences on this point

See OLC Memo at 18

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that a criminal indictment, or even trial and conviction, does not, standing alone,

effect the removal of an impeachable federal officer.” Id. at 11-12. The brief

noted the past constitutional practice of indicting and even convicting federal

judges during their tenure, as well as the fact that Vice President Aaron Burr

“ was subject to simultaneous indictment in two states while in office, yet he

continued to exercise his constitutional responsibilities until the expiration of his

term.” Id. at 12. “ Apparently, neither Burr nor his contemporaries considered

him constitutionally immune from indictment. Although counsel for the Vice

President asserted that Burr’s indictments were ‘allowed to die,’ that was merely

because ‘Burr thought it best not to visit either New York or New Jersey.’ ”

Id. at 12 n* (citations omitted). The brief therefore determined that “ [cjertainly

it is clear that criminal indictment, trial, and even conviction of a Vice President

would not, ipso fa c to , cause his removal; subjection of a Vice President to the

criminal process therefore does not violate the exclusivity of the impeachment

power as the means of his removal from office.” Id. at 13.

The brief did conclude, however, that the “ structure of the Constitution” pre­

cluded the indictment of the President. Id. at 15. In framing the inquiry into

whether considerations of constitutional structure supported the recognition of an

immunity from criminal process for certain civil officers, the brief explained that

the “ Constitution is an intensely practical document and judicial derivation of

powers and immunities is necessarily based upon consideration of the document’s

structure and of the practical results of alternative interpretations.” Id. As a con­

sequence,

[t]he real question underlying the issue of whether indictment of

any particular civil officer can precede conviction upon impeach­

m ent— and it is constitutional in every sense because it goes to

the heart of the operation o f government — is whether a govern­

mental function would be seriously impaired if a particular civil

officer were liable to indictment before being tried on impeachment.

Id. at 15-16. Given that the constitutional basis for the recognition of a civil offi­

cer’s immunity from criminal process turned on the resolution of this question,

the answer “ must necessarily vary with the nature and functions of the office

involved.” Id. at 16.

The brief then proceeded to consider the consequences that criminal prosecu­

tions would have on the performance of the constitutional functions that are the

responsibility of various civil officers. As a matter of constitutional structure,

Article III judges should enjoy no constitutional immunity from the criminal

process because while a “ judge m ay be hampered in the performance of his duty

when he is on trial for a felony . . . his personal incapacity in no way threatens

the ability of the judicial branch to continue to function effectively.” Id. at 16.

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A Sitting President’s Amenability to Indictment and Criminal Prosecution

Similarly, no such immunity should be recognized for members o f Congress. The

limited immunity in the Arrest and Speech or Debate Clauses reflected

a recognition that, although the functions of the legislature are not

lightly to be interfered with, the public interest in the expeditious

and even-handed administration of the criminal law outweighs the

cost imposed by the incapacity of a single legislator. Such inca­

pacity does not seriously impair the functioning of Congress.

Id. at 16-17.

The brief argued that the same structural considerations that counseled against

the recognition of an immunity from criminal process for individual judges or

legislators also counseled against the recognition of such an immunity for the

Vice President:

Although the office of the Vice Presidency is of course a high one,

it is not indispensable to the orderly operation of government. There

have been many occasions in our history when the nation lacked

a Vice President, and yet suffered no ill consequences. And, as has

been discussed above, at least one Vice President successfully ful­

filled the responsibilities of his office while under indictment in

two states.

Id. al 18 (citation omitted). The brief noted that the Vice President had only three

constitutional functions: to replace the President in certain extraordinary cir­

cumstances; to make, in certain extraordinary circumstances, a written declaration

of the President’s inability to discharge the powers and duties of his office; and

to preside over the Senate and cast the deciding vote in the case of a tie in that

body. Id. at 19. None of these “ constitutional functions is substantially impaired

by [the Vice President’s] liability to the criminal process.” Id.

3-

The Solicitor General’s brief explained that recognition of presidential immunity

from criminal process, in contrast to the vice presidential immunity, was com­

pelled by a consideration of the constitutional structure. After noting that

“ [ajlmost all legal commentators agree . . . that an incumbent President must

be removed from office through conviction upon an impeachment before being

subject to the criminal process,” SG Brief at 17, the brief repeated its determina­

tion that the Framers assumed “ that the nation’s Chief Executive, responsible as

no other single officer is for the affairs of the United States, would not be taken

from duties that only he can perform unless and until it is determined that he

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is to be shorn of those duties by the Senate.” Id. A proper understanding of the

constitutional structure reflects this shared assumption; in this regard it is “ note­

worthy that the President is the only officer of government for whose temporary

disability the Constitution provides procedure to qualify a replacement.” Id. at

18. This provision constituted a textual recognition “ that the President is the only

officer of government for whose temporary disability while in office incapacitates

an entire branch of government.” Id.

Finally, the brief noted that the conclusion that the Framers assumed that the

President would enjoy an immunity from criminal process was supported by other

considerations of constitutional structure beyond the serious interference with the

capacity of the executive branch to perform its constitutional functions. The

“ Framers could not have contemplated prosecution of an incumbent President

because they vested in him complete power over the execution of the laws, which

includes, of course, the power to control prosecutions.” Id. at 20.

C.

The foregoing review demonstrates that, in 1973, the Department applied a con­

sistent approach in analyzing the constitutional question whether a sitting President

may be subject to indictment and criminal prosecution. Both the OLC memo­

randum and the Solicitor General’s brief recognized that the President is not above

the law, and that he is ultimately accountable for his misconduct that occurs

before, during, and after his service to the country. Each also recognized, however,

that the President occupies a unique position within our constitutional order.

The Department concluded that neither the text nor the history of the Constitu­

tion ultimately provided dispositive guidance in determining whether a President

is amenable to indictment or criminal prosecution while in office. It therefore

based its analysis on more general considerations of constitutional structure.

Because of the unique duties and demands of the Presidency, the Department con­

cluded, a President cannot be called upon to answer the demands of another branch

of the government in the same manner as can all other individuals. The OLC

memorandum in particular concluded that the ordinary workings of the criminal

process would impose burdens upon a sitting President that would directly and

substantially impede the executive branch from performing its constitutionally

assigned functions, and the accusation or adjudication of the criminal culpability

of the nation’s chief executive by either a grand jury returning an indictment or

a petit jury returning a verdict would have a dramatically destabilizing effect upon

the ability of a coordinate branch of government to function. The Department

therefore concluded in both the OLC memorandum and the Solicitor General’s

brief that, while civil officers generally may be indicted and criminally prosecuted

during their tenure in office, the constitutional structure permits a sitting President

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to be subject to criminal process only after he leaves office or is removed there­

from through the impeachment process.

II.

Since the Department set forth its constitutional analysis in 1973, the Supreme

Court has decided three cases that are relevant to whether a sitting President may

be subject to indictment or criminal prosecution.12 U nited States v. Nixon, 418

U.S. 683 (1974), addressed whether the President may assert a claim of executive

privilege in response to a subpoena in a criminal case that seeks records of

communications between the President and his advisors. Nixon v. F itzgerald, 457

U.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997), both addressed the

extent to which the President enjoys a constitutional immunity from defending

against certain types of civil litigation, with F itzgerald focusing on official mis­

conduct and Jon es focusing primarily on misconduct “ unrelated to any of his

official duties as President of the United States and, indeed, occurr[ing] before

he was elected to that office.” Id. at 686.13

None of these cases directly addresses the questions whether a sitting President

may be indicted, prosecuted, or imprisoned.14 We would therefore hesitate before

,2 We do not consider either Nixon v Administrator o f General Services, 433 U S. 425 (1977), or Morrison v.

Olson, 487 U.S 654 (1988), to be directly relevant to this question, and thus we do not discuss either o f them

extensively. Nixon v Administrator o f General Services involved a suit brought by former President Nixon to enjoin

enforcement of a federal statute taking custody of and regulating access to his Presidential papers and various tape

recordings, in part on the ground that the statute violated the separation of powers While the case did analyze

the separation o f powers claim under a balancing test o f the sort w e embrace here, w e m fm text accompanying

note 17, the holding and reasoning do not shed appreciable light on the question before us

Morrison v Olson considered and rejected various separation o f powers challenges to the independent counsel

provisions o f the Ethics in Government Act of 1978, which authorized a court-appointed independent counsel to

investigate and prosecute the President and certain other high-ranking executive branch officials for violations of

federal cnminal laws Morrison focused on whether a particular type o f prosecutor could pursue cnminal investiga­

tions and prosecutions o f executive branch officials, in a case involving the cnminal investigation of an infenor

federal officer The Court accordingly had no occasion to and did not consider whether the Act could constitutionally

be invoked to support an independent counsel’s indictment of a silting President.

,3The Court noted that Jones’s state law claim for defamation based on statements by “ vanous persons authonzed

to speak for the President,” 520 U S . al 685, “ arguably may involve conduct within the outer penm eter of the

President’s official responsibilities ” Id. at 686 For purposes of this memorandum, we use the phrase “ unofficial

conduct,” as did the Court, see id. at 693, to refer to conduct unrelated to the President’s official duties. Compare

Nixon v. Fitzgerald, 457 U S. at 756 (recognizing “ absolute Presidential immunity from damages liability for acts

within the ‘outer perim eter’ of his official responsibility” ).

14 See United States v. Nixon, 418 U S . at 687 n 2 (expressly reserving the question whether the President can

constitutionally be named an unindicted co-conspirator). See also Jones v. Clinton, 36 F Supp 2d 1118, 1134 n.22

(E D Ark 1999) ( “ [T]he question o f whether a President can be held in cnminal contempt o f court and subjected

to cnminal penalties raises constitutional issues not addressed by the Supreme Court in the Jones case.” ) As a

matter of constitutional practice, it remains the case today that no President has ever so much as testified, or been

ordered to testify, in open court, let alone been subject to criminal proceedings as a defendant. Clinton v. Jones,

520 U.S at 692 n 14.

In the reply b n ef for the United States in United States v N ixon, in response to President Nixon’s argument

that a sitting President was constitutionally immune from indictment and therefore immune from being named an

unindicted co-conspirator by a grand jury, Watergate Special Prosecutor Leon Jaworski argued that it was not settled

as a matter of constitutional law whether a sitting President could be subject to indictment. See Reply B n ef for

the United States, United States v. Nixon, 418 U S . 683 (1974) (No 73-1766). He therefore argued that the Court

Continued

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concluding that judicial statements made in the context of these distinct constitu­

tional disputes would suffice to undermine the Department’s previous resolution

of the precise constitutional question addressed here. In any event, however, we

conclude that these precedents are largely consistent with the Department’s 1973

determinations that (1) the proper doctrinal analysis requires a balancing between

the responsibilities of the President as the sole head of the executive branch

against the important governmental purposes supporting the indictment and

criminal prosecution of a sitting President; and (2) the proper balance supports

recognition of a temporary immunity from such criminal process while the Presi­

dent remains in office. Indeed, U n ited S tates v. Nixon and Nixon v. F itzgerald

recognized and embraced the same type of constitutional balancing test anticipated

in this Office’s 1973 memorandum. Clinton v. Jones, which held that the President

is not immune from at least certain judicial proceedings while in office, even

if those proceedings may prove somewhat burdensome, does not change our

conclusion in 1973 and again today that a sitting President cannot constitutionally

be indicted or tried.

A.

1.

In U n ited S ta tes v. Nixon, the Court considered a motion by President Nixon

to quash a third-party subpoena duces tecum directing the President to produce

certain tape recordings and documents concerning his conversations with aides

and advisers. 418 U.S. at 686. The Court concluded that the subpoena, which

had been issued upon motion by the Watergate Special Prosecutor in connection

should not rely on the assumption that a sitting President is immune from indictment in resolving the distinct question

whether the President could be named an unindicted co-conspirator In so arguing, the Special Prosecutor rejected

the President’s contention that either the historical evidence o f the intent o f the Framers or the plain terms of the

Impeachment Judgm ent Clause foreclosed the indictment o f a sitting President as a constitutional matter See id.

at 24 ( “ nothing in the text o f the Consutuuon o r m its history . imposes any bar to indictment of an incumbent

President” ), id at 29 ( “ [T]he simple fact is that the Framers never confronted the issue at all ” ) The Special

Prosecutor then argued, as the Department itself had concluded, that “ [pjnm ary support for such a prohibition must

be found, if at all, in considerations of constitutional and public policy including competing factors such as the

nature and role o f the Presidency in our constitutional system, the importance of the administration of criminal

justice, and the principle that under our system no person, no matter what his station, is above the law .” Id. at

24-25. The Special Prosecutor explained that the contention that the President should be immune from indictment

because the functioning o f the executive branch depends upon a President unburdened by defending against criminal

chargcs “ is a weighty argum ent and it is enutled to great respect.” Id. at 31. He noted, however, that “ our constitu­

tional system has shown itself to be remarkably resilient” and that “ there are very serious implications to the Presi­

dent’s position that he has absolute immunity from criminal indictm ent.” Id at 32 In particular, the Special Pros­

ecutor argued that to the extent some cnminal offenses are not impeachable, the recognition of an absolute immunity

from indictment would mean that “ the Constitution has left a lacuna of potentially senous dimensions ” Id. at

34. The Special Prosecutor ulumately concluded that “ [w]hether these factors compel a conclusion that as a matter

of constitutional interpretation a sitting President cannot be indicted for violations of federal criminal laws is an

issue about which, at best, there is presently considerable doubt.” Id. at 25. He explained further that the resolution

of this question was not necessary to the decision in Nixon, because the Court confronted only the question whether

the President could be named an umndicted co-conspirator— an event that “ cannot be regarded as equally burden­

some.” Id at 20.

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with the criminal prosecution of persons other than the President, satisfied the

standards of Rule 17(c) of Federal Rules of Criminal Procedure.15 The Court

therefore proceeded to consider the claim “ that the subpoena should be quashed

because it demands ‘confidential conversations between a President and his close

advisors that it would be inconsistent with the public interest to produce.’ ” Id.

at 703 (citation omitted).

In assessing the President’s constitutional claim of privilege, the Court first

considered the relevant evidence of the Framers’ intent and found that it supported

the President’s assertion of a constitutional interest in confidentiality. Id. at 705

n.15. The Court also rejected the suggestion that the textual omission of a presi­

dential privilege akin to the congressional privilege set forth in the Arrest and

Speech or Debate Clauses was “ dispositive” of the President’s claim. Id. at 705

n.16. Considering the privilege claim in light of the constitutional structure as

a whole, the Court concluded that,

[w]hatever the nature of the privilege of confidentiality of Presi­

dential communications in the exercise of Art. II powers, the privi­

lege can be said to derive from the supremacy of each branch

within its own assigned area of constitutional duties. Certain powers

and privileges flow from the nature of enumerated powers; the

protection of the confidentiality of Presidential communications has

similar constitutional underpinnings.

Id. at 705-06 (footnote omitted). Such a privilege must be recognized, the Court

said, in light of “ the importance of . . . confidentiality of Presidential commu­

nications in performance of the President’s responsibilities.” Id. at 711. The

interest in the confidentiality of Presidential communications was “ weighty indeed

and entitled to great respect.” Id. at 712.

The Court next considered the extent to which that interest would be impaired

by presidential compliance with a subpoena. The Court concluded that it was quite

unlikely that the failure to recognize an absolute privilege for confidential presi­

dential communications against criminal trial subpoenas would, in practical con­

sequence, undermine the constitutional interest in the confidentiality of such

communications. “ [W]e cannot conclude that advisers will be moved to temper

15 In response to an earlier subpoena, President Nixon had asserted that, as a constitutional matter, he was absolutely

immune from judicial process while in office The United States Court of Appeals for the District o f Columbia

Circuit rejected that contention. See Nixon v Sirica, 487 F 2 d 700 (D C . Cir. 1973). The D C . Circuit explained

that the President’s constitutional position could not be maintained in light of United Slates v Burr, 25 F Cas

187 (C.C.D Va 1807) (No 14,694), and it rejected the contention that the Supreme Court’s decision in Mississippi

v Johnson, 71 U.S. (4 Wall.) 475 (1866), was to the contrary 487 F.2d at 708-12 We note that the Department’s

1973 analysis did not depend upon a broad contention that the President is immune from all judicial process while

in office Indeed, the OLC memorandum specifically cast doubt upon such a contention and explained that even

Attorney General Stanbery had not made such a broad argument in Mississippi v Johnson See OLC Memo at

23 ( “ Attorney General Stanbery’s reasoning is presumably limited to the power of the courts to review official

action of the President ’’)

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the candor of their remarks by the infrequent occasions of disclosure because of

the possibility that such conversations will be called for in the context of a

criminal prosecution.” Id. Finally, the Court balanced against the President’s

interest in maintaining the confidentiality of his communications “ [t]he impedi­

ment that an absolute, unqualified privilege would place in the way of the primary

constitutional duty of the Judicial Branch to do justice in criminal prosecutions.”

Id. at 707. The Court predicated its conclusion on the determination that “ [t]he

need to develop all relevant facts in the adversary system is both fundamental

and comprehensive. The ends of criminal justice would be defeated if judgments

were to be founded on a partial o r speculative presentation of the facts.” Id. at

709.

The assessment of these competing interests led the Court to conclude that “ the

legitimate needs of the judicial process may outweigh Presidential privilege,” id.

at 707, and it therefore determined that it was “ necessary to resolve those com­

peting interests in a manner that preserves the essential functions of each branch.”

Id. Here, the Court weighed the President’s constitutional interest in confiden­

tiality, se e id. at 707-08, against the nation’s “ historic commitment to the rule

of law,” id. at 708, and the requirement of “ the fair administration of criminal

justice.” Id. at 713. The Court ultimately concluded that the President’s general­

ized interest in confidentiality did not suffice to justify a privilege from all

criminal subpoenas, although it noted that a different analysis might apply to a

privilege based on national security interests. Id. at 706.

2.

In Nixon v. F itzgerald, the Supreme Court considered a claim by former Presi­

dent Nixon that he enjoyed an absolute immunity from a former government

employee’s suit for damages for President Nixon’s allegedly unlawful official con­

duct while in office. The Court endorsed a rule of absolute immunity, concluding

that such immunity is “ a functionally mandated incident of the President’s unique

office, rooted in the constitutional tradition of the separation of powers and sup­

ported by our history.” 457 U.S. at 749.

The Court reviewed various statements by the Framers and early commentators,

finding them consistent with the conclusion that the Constitution was adopted on

the assumption that the President would enjoy an immunity from damages liability

for his official actions. Id. at 749, 751 n.31. The Court once again rejected the

contention that the textual grant o f a privilege to members of Congress in Article

I, Section 6 precluded the recognition of an implicit privilege on behalf of the

President. S ee id. at 750 n.31.

But as in U n ited S tates v. N ixon, the Court found that “ the most compelling

arguments arise from the Constitution’s separation of powers and the Judiciary’s

historic understanding of that doctrine,” Id. at 752 n.31. It emphasized that “ [t]he

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President occupies a unique position in the constitutional scheme . . . as the chief

constitutional officer of the Executive Branch.” Id. at 749-50. Although other

government officials enjoy only qualified immunity from civil liability for their

official actions, “ [bjecause of the singular importance of the President’s duties,

diversion of his energies by concern with private lawsuits would raise unique risks

to the effective functioning of government.” Id. at 751. Such lawsuits would be

likely to occur in considerable numbers since the ‘‘President must concern himself

with matters likely to ‘arouse the most intense feelings.’ ” Id. at 752. Yet, the

Court noted, “ it is in precisely such cases that there exists the greatest public

interest in providing an official ‘the maximum ability to deal fearlessly and impar­

tially’ with the duties of his office.” Id. (citations omitted). The Court emphasized

that the “ visibility” of the President’s office would make him “ an easily identifi­

able target for suits for civil damages,” and that “ [c]ognizance of this personal

vulnerability frequently could distract a President from his public duties, to the

detriment of not only the President and his office but also the Nation that the

Presidency was designed to serve.” Id. at 753.

The Court next examined whether the constitutional interest in presidential

immunity from civil damages arising from the performance of official duties was

outweighed by the governmental interest in providing a forum for the resolution

of damages actions generally, and actions challenging the legality of official presi­

dential conduct in particular. The Court concluded that it was appropriate to con­

sider the “ President’s constitutional responsibilities and status as factors coun­

seling judicial deference and restraint.” Id. at 753. As the Court explained,

[i]t is settled law that the separation-of-powers doctrine does not

bar every exercise of jurisdiction over the President of the United

States. But our cases also have established that a court, before exer­

cising jurisdiction, must balance the constitutional weight of the

interest to be served against the dangers of intrusion on the

authority and functions of the Executive Branch.

Id. at 753-54 (citations omitted). In performing this balancing, the Court noted

that recognition of a presidential immunity from such suits “ will not leave the

Nation without sufficient protection against misconduct on the part of the Chief

Executive,” in light of other mechanisms creating “ incentives to avoid mis­

conduct” (including impeachment). Id. at 757. The Court concluded that the con­

stitutional interest in ensuring the President’s ability to perform his constitutional

functions outweighed the competing interest in permitting civil actions for unlaw­

ful official conduct to proceed.

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3.

In C linton v. Jon es, the Court declined to extend the immunity recognized in

F itzg era ld to civil suits challenging the legality of a President’s unofficial conduct.

In that case, the plaintiff sought to recover compensatory and punitive damages

for alleged misconduct by President Clinton occurring before he took federal

office. The district court denied the President’s motion to dismiss based on a con­

stitutional claim of temporary immunity and held that discovery should go for­

ward, but granted a stay of the trial until after the President left office. The court

of appeals vacated the order staying the trial, while affirming the denial of the

immunity-based motion to dismiss. The Supreme Court affirmed, permitting the

civil proceedings to go forward against the President while he still held office.

In considering the President’s claim of a temporary immunity from suit, the

Court first distinguished Nixon v. F itzgerald, maintaining that “ [t]he principal

rationale for affording certain public servants immunity from suits for money dam­

ages arising out of their official acts is inapplicable to unofficial conduct.” Clinton

v. Jones, 520 U.S. at 692-93. The point of immunity for official conduct, the

Court explained, is to “ enabl[e] such officials to perform their designated func­

tions effectively without fear that a particular decision may give rise to personal

liability.” Id. at 693. But “ [t]his reasoning provides no support for an immunity

for unofficial conduct.” Id. at 694. Acknowledging F itzg era ld '%additional concern

that “ ‘[b]ecause of the singular importance of the President’s duties, diversion

of his energies by concern with private lawsuits would raise unique risks to the

effective functioning of government,’ ” the Court treated this prior statement as

dictum because “ [i]n context . . . it is clear that our dominant concern” had

been the chilling effect that liability for official conduct would impose on the

President’s performance of his official duties. Id. at 694 n.19 (quoting Nixon v.

F itzg erald, 457 U.S. at 751).

After determining that the historical evidence of the Framers’ understanding

of presidential immunity was either ambiguous or conflicting and thus could not

by itself support the extension of presidential immunity to unofficial conduct, see

id. at 695-97, the Court considered the President’s argument that the “ text and

structure” of the Constitution supported his claim to a temporary immunity. The

Court accepted his contention that “ the doctrine of separation of powers places

limits on the authority of the Federal Judiciary to interfere with the Executive

Branch,” id. at 697-98, and conceded that the powers and obligations conferred

upon a single President suggest that he occupies a “ ‘unique position in the con­

stitutional scheme.’ ” Id. at 698 (quoting N ixon v. F itzgerald, 457 U.S. at 749).

But “ [i]t does not follow . . . that separation-of-powers principles would be vio­

lated by allowing this action to proceed.” Id. at 699.

Rather than claiming that allowing the civil suit would either aggrandize judicial

power or narrow any constitutionally defined executive powers, the President

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argued that, as an inevitable result of the litigation, “ burdens will be placed on

the President that will hamper the performance of his official duties,” id. at 701,

both in the Jon es case and others that might follow. The Court first rejected the

factual premise of the President’s claim, asserting that the President’s “ predictive

judgment finds little support in either history or the relatively narrow compass

of the issues raised in this particular case.” Id. at 702. “ As for the case at hand,”

the Court continued, “ if properly managed by the District Court, it appears to

us highly unlikely to occupy any substantial amount of petitioner’s time.” Id.

The Court emphasized at the outset that it was not “ confront[ing] the question

whether a court may compel the attendance of the President at any specific time

or place,” id. at 691, and it “ assume[d] that the testimony of the President, both

for discovery and for use at trial, may be taken at the White House at a time

that will accommodate his busy schedule, and that, if a trial is held, there would

be no necessity for the President to attend in person.” Id. at 691-92.

Moreover, the Court explained, “ even quite burdensome interactions” between

the judicial and executive branches do not “ necessarily rise to the level of con­

stitutionally forbidden impairment of the Executive’s ability to perform its con­

stitutionally mandated functions.” Id.; see also id. at 703 ( “ that a federal court’s

exercise of its traditional Article III jurisdiction may significantly burden the time

and attention of the Chief Executive is not sufficient to establish a violation of

the Constitution” ). Noting that courts frequently adjudicate civil suits challenging

the legality of official presidential actions, the Court also observed that courts

occasionally have ordered Presidents to provide testimony and documents or other

materials. Id. at 703-05 (citing U nited States v. Nixon as an example). By

comparison, the Court asserted, “ [t]he burden on the President’s time and energy

that is a mere byproduct of [the power to determine the legality of his unofficial

conduct through civil litigation] surely cannot be considered as onerous as the

direct burden imposed by judicial review and the occasional invalidation of his

official actions.” Id. at 705.

Finally, the Court agreed with the court of appeals that the district court abused

its discretion by invoking its equitable powers to defer any trial until after the

President left office, even while allowing discovery to continue apace. The Court

observed that such a “ lengthy and categorical stay takes no account whatever

of the respondent’s interest in bringing the case to trial,” id. at 707, in particular

the concern that delay “ would increase the danger of prejudice resulting from

the loss of evidence, including the inability of witnesses to recall specific facts,

or the possible death of a party.” Id. at 707-08. On the other hand, continued

the Court, assuming careful trial management, “ there is no reason to assume that

the district courts will be either unable to accommodate the President’s [sched­

uling] needs or unfaithful to the tradition — especially in matters involving

national security — of giving ‘the utmost deference to Presidential responsibil­

ities.’ ” Id. at 709 (quoting United States v. Nixon, 418 U.S. at 710-11). On this

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basis, the Court determined that a stay of any trial pending the President’s leaving

office was not supported by equitable principles.16

B.

W e believe that these precedents, U nited S tates v. Nixon, N ixon v. F itzgerald,

and C linton v. Jones, are consistent with the Department’s analysis and conclusion

in 1973. The cases embrace the methodology, applied in the OLC memorandum,

of constitutional balancing. That is, they balance the constitutional interests under­

lying a claim of presidential immunity against the governmental interests in

rejecting that immunity. And, notwithstanding C linton's conclusion that civil

litigation regarding the President’s unofficial conduct would not unduly interfere

with his ability to perform his constitutionally assigned functions, we believe that

C linton and the other cases do not undermine our earlier conclusion that the bur­

dens of crim in al litigation would be so intrusive as to violate the separation of

powers.

1.

The balancing analysis relied on in the 1973 OLC memorandum has since been

adopted as the appropriate mode o f analysis by the Court. In 1996, this Office

summarized the principles of analysis for resolving separation of powers issues

found in the Court’s recent cases. See The C onstitutional Separation o f P ow ers

B etw een the P resid en t a n d Congress, 20 Op. O.L.C. 124, 133-35 (1996). As noted

there, ‘ ‘ ‘the proper inquiry focuses on the extent to which [a challenged act] pre­

16 One final recent precedent m ents bnef m ention, the federal district court’s decision to hold President Clinton

in civil contempt for statements made in the course of a deposition taken in the Jones case and to order him to

pay expenses (including attorneys’ fees) to the plaintiff and costs to the court. See Jones i\ Clinton, 36 F Supp

2d 1118 (E.D. Ark 1999) This decision was not appealed, and for purposes of our analysis here we assume arguendo

that it is correct But a court order cuing a sitting President for civil contempt does not support the proposition

that a sitting President can be subject even to cnm inal contempt sanctions, let alone indictment and criminal prosecu­

tion. Civil contem pt differs from criminal contempt because the former is designed to ensure compliance with court

orders or to remedy harms inflicted upon another litigant, while cnminal contempt is intended to punish the commis­

sion o f a public w rong See U nited Mine Workers v Bagwell, 512 U.S 821, 826-30 (1994) A civil contempt

proceeding is thus not likely to be either as consum ing o f the defendant’s tim e or as detnmental to the defendant’s

public standing as a criminal contempt proceeding; that is particularly true when the civil contempt sanction takes

the form o f an award o f costs to the court or o th er litigant. Significantly, the distnct court that imposed the contempt

citation em phasized the narrow scope of its decision. See Jones, 36 F Supp. 2d at 1125 (explaining lhat “ the Court

recognizes that significant constitutional issues w ould anse were this Court to impose sanctions against the President

that impaired his decision-making or otherwise impaired him in the performance of his official duties,” and empha­

sizing that “ [n]o such sanction will be im posed” ) The court further noted that, while “ the power [upheld by

the Supreme Court in Clinton v. Jones] to determ ine the legality o f the President’s unofficial conduct includes with

it the pow er to issue civil contem pt citations and impose sanctions for his unofficial conduct which abuses the

judicial process,” i d , the Supreme Court’s decision did not imply the existence of any authonty to impose cnminal

sanctions on the President, id. at 1134 n,22 ( “ th e question o f whether a President can be held in criminal contempt

of court and subjected to criminal penalties raises constitutional issues not addressed by the Supreme Court in the

Jones case” ) For these reasons, this distnct court decision does not affect our analysis of the soundness of the

D epartm ent’s 1973 conclusion that it would be unconstitutional to indict or prosecute a President while he remains

in office

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vents the Executive Branch from accomplishing its constitutionally assigned func­

tions.’ ” Id. at 133 (quoting A dm inistrator o f G eneral Services, 433 U.S. at 443).

The inquiry is complex, because even where the acts of another branch would

interfere with the executive’s “ accomplishing its functions,” this “ would not lead

inexorably to” invalidation; rather, the Court “ would proceed to ‘determine

whether that impact is justified by an overriding need to promote’ ” legitimate

governmental objectives. Id. (quoting A dm inistrator o f G eneral Services, 433 U.S.

at 443).

These inquiries formed the basis for the Court’s analysis in U nited S tates v.

Nixon, where the Court employed a balancing test to preserve the opposing

interests of the executive and judicial branches with respect to the President’s

claim of privilege over confidential communications. The Court’s resort to a bal­

ancing test was quite explicit. See e.g., 418 U.S. at 711-12 (“ In this case we

must weigh the importance of the general privilege of confidentiality of Presi­

dential communications in the performance of the President’s responsibilities

against the inroads of such a privilege on the fair administration of criminal jus­

tice.” ). In Nixon v. F itzgerald, the Court’s recognition of an absolute presidential

immunity from civil suits for damages concerning official conduct also reflected

a balance of competing interests. As the Court explained, “ [i]t is settled law that

the separation-of-powers doctrine does not bar every exercise of jurisdiction over

the President of the United States. But our cases also have established that a court,

before exercising jurisdiction, must balance the constitutional weight of the interest

to be served against the dangers of intrusion on the authority and functions of

the Executive Branch.” 457 U.S. at 753-54. And in Clinton v. Jones, the Court

again acknowledged that “ ‘[e]ven when a branch does not arrogate power to itself

. . . the separation-of-powers doctrine requires that a branch not impair another

in the performance of its constitutional duties.’ ” 520 U.S. at 701 (quoting Loving

v. U nited States, 517 U.S. 748, 757 (1996)).17

We now explain why, in light of the post-1973 cases, we agree with the 1973

conclusions that indicting and prosecuting a sitting President would “ prevent the

executive from accomplishing its constitutional functions” and that this impact

cannot “ be justified by an overriding need” to promote countervailing and legiti­

mate government objectives.

17 Although the Court in Clinton v Jones did not explicitly use the language of “ balancing” to weigh the Presi­

dent’s interests against those o f the civil litigant, the Court did assess both what it saw as the rather minor disrupuon

to the President’s office from defending against such civil actions as well as the interests in the pnvate litigant

in avoiding delay in adjudication See id. at 707-08 In any event, the Court may not have explicitly invoked the

second part o f the analysis (weighing the intrusions on the execuUve branch against the legitimate governmental

interests opposed to immunity), because it found the burdens o f civil litigation insufficiently weighty to warrant

an extended inquiry. See Administrator o f General Services, 433 U.S at 443 (emphasis added) (explaining that

when there is a potential for disruption o f presidential authonty, “ the proper inquiry focuses on the extent to which

it prevents the Executive Branch from accomplishing its constitutionally assigned funcuons Only where the

potential fo r disruption is present must we then determine whether that impact is jusufied by an overriding need

to promote objectives within the constitutional authority o f Congress.” ), cited with approval in Clinton v Jones,

520 U.S. at 701

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2.

Three types of burdens merit consideration: (a) the actual imposition of a

criminal sentence of incarceration, which would make it physically impossible

for the President to carry out his duties; (b) the public stigma and opprobrium

occasioned by the initiation of criminal proceedings, which could compromise the

President’s ability to fulfill his constitutionally contemplated leadership role with

respect to foreign and domestic affairs; and (c) the mental and physical burdens

of assisting in the preparation of a defense for the various stages of the criminal

proceedings, which might severely hamper the President’s performance of his offi­

cial duties. In assessing the significance of these burdens, two features of our

constitutional system must be kept in mind.

First, the Constitution specifies a mechanism for accusing a sitting President

of wrongdoing and removing him from office. See U.S. Const, art. II, §4 (pro­

viding for impeachment by the House, and removal from office upon conviction

in the Senate, of sitting Presidents found guilty of “ Treason, Bribery or other

high Crimes and Misdemeanors” ). While the impeachment process might also,

of course, hinder the President’s performance of his duties, the process may be

initiated and maintained only by politically accountable legislative officials.

Supplementing this constitutionally prescribed process by permitting the indict­

ment and criminal prosecution o f a sitting president would place into the hands

of a single prosecutor and grand jury the practical power to interfere with the

ability of a popularly elected President to carry out his constitutional functions.

Second, “ [t]he President occupies a unique position in the constitutional

scheme.” F itzgerald, 457 U.S. at 749. As the court explained, “ Article II, § 1

of the Constitution provides that ‘[t]he executive Power shall be vested in a Presi­

dent of the United States . . . .’ This grant of authority establishes the President

as the chief constitutional officer of the Executive branch, entrusted with super­

visory and policy responsibilities o f utmost discretion and sensitivity.” Id. at 749-

50. In addition to the grant of executive power, other provisions of Article II

make clear the broad scope and important nature of the powers entrusted to the

President. The President is charged to “ take Care that the Laws be faithfully

executed.” S ee U.S. Const, art. II, §3. He and the Vice President are the only

officials elected by the entire nation. S ee id. art. II, § 1. He is the sole official

for whose temporary disability the Constitution expressly provides procedures to

remedy. S ee id. art. II, § 1, cl. 6; id. amend. XXV. He is the Commander in Chief

of the Army and the Navy. See id. art. II, §2, cl. 2. He has the power to grant

reprieves and pardons for offenses against the United States. See id. He has the

power to negotiate treaties and to receive Ambassadors and other public ministers.

S ee id. art. II, §2, cl. 2. He is the sole representative to foreign nations. He

appoints all of the “ Judges of the supreme Court” and the principal officers of

the government. See id. art. II, § 2, cl. 2. He is the only constitutional officer

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A Sitting President's Amenability to Indictment and Criminal Prosecution

empowered to require opinions from the heads of departments, see id. art. II, § 2,

cl. 1, and to recommend legislation to the Congress. See id. art. II, §3. And he

exercises a constitutional role in the enactment of legislation through the presen­

tation requirement and veto power. See id. art. I, § 7, els. 2, 3.

Moreover, the practical demands on the individual who occupies the Office of

the President, particularly in the modem era, are enormous. President Washington

wrote that “ [t]he duties of my Office * * * at all times * * * require an

unremitting attention,” Brief for the United States as Amicus Curiae in Support

of the Petitioner at 11, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853)

(quoting Arthur B. Tourtellot, The P residen ts on the P residen cy 348 (1964)). In

the two centuries since the Washington Administration, the demands of govern­

ment, and thus of the President’s duties, have grown exponentially. In the words

of Justice Jackson, “ [i]n drama, magnitude and finality [the President’s] decisions

so far overshadow any others that almost alone he fills the public eye and ear.”

Youngstown Sheet & Tube Co. v. Saw yer, 343 U.S. 579, 653 (1952) (Jackson,

J., concurring). In times of peace or war, prosperity or economic crisis, and tran­

quility or unrest, the President plays an unparalleled role in the execution of the

laws, the conduct of foreign relations, and the defense of the Nation. As Justice

Breyer explained in his opinion concurring in the judgment in Clinton v. Jones'.

The Constitution states that the “ executive Power shall be vested

in a President.” Art. II, § 1. This constitutional delegation means

that a sitting President is unusually busy, that his activities have

an unusually important impact upon the lives of others, and that

his conduct embodies an authority bestowed by the entire American

electorate. . . . [The Founders] sought to encourage energetic, vig­

orous, decisive, and speedy execution of the laws by placing in

the hands of a single, constitutionally indispensable, individual the

ultimate authority that, in respect to the other branches, the Con­

stitution divides among many.

520 U.S. at 711-12. The burdens imposed on a sitting President by the initiation

of criminal proceedings (whether for official or unofficial wrongdoing) therefore

must be assessed in light of the Court’s “ long recognition of] the ‘unique position

in the constitutional scheme’ that this office occupies.” Id. at 698 (quoting Nixon

v. Fitzgerald, 457 U.S. at 749).

a.

Given the unique powers granted to and obligations imposed upon the President,

we think it is clear that a sitting President may not constitutionally be imprisoned.

The physical confinement of the chief executive following a valid conviction

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would indisputably preclude the executive branch from performing its constitu­

tionally assigned functions. As Joseph Story wrote:

There are . . . incidental powers, belonging to the executive depart­

ment, which are necessarily implied from the nature of the func­

tions, which are confided to it. Among these, must necessarily be

included the power to perform them, without any obstruction or

impediment whatsoever. T he president cannot, therefore, be liable

to arrest, imprisonment, or detention, while he is in the discharge

o f the duties of his office . . . .

3 Joseph Story, Com m entaries on the C onstitution o f the U nited States 418-19

(1st ed. 1833) ( q u o ted in Nixon v. F itzg era ld , 457 U.S. at 749).18

To be sure, the Twenty-fifth Amendment provides that either the President him­

self, or the Vice-President along with a majority of the executive branch’s prin­

cipal officers or some other congressionally determined body, may declare that

the President is “ unable to discharge the powers and duties of his office,” with

the result that the Vice President assumes the status and powers of Acting Presi­

dent. See U.S. Const, amend. XXV, §§ 3, 4. But it is doubtful in the extreme

that this Amendment was intended to eliminate or otherwise affect any constitu­

tional immunities the President enjoyed prior to its enactment. None of the contin­

gencies discussed by the Framers of the Twenty-fifth Amendment even alluded

to the possibility of a criminal prosecution of a sitting President.19 O f course,

it might be argued that the Twenty-fifth Amendment provides a mechanism to

ensuring that, if a sitting President were convicted and imprisoned, there could

]8See also A lexander M. Bickel, The Constitutional Tangle, The New Republic, Oct 6, 1973, at 14, 15 (“ In

the presidency is embodied the continuity an d indestructibility o f the state It is not possible for the government

to function without a President, and the Constitution contemplates and provides for uninterrupted continuity in that

office. Obviously the presidency cannot be conducted from jail, nor can it be effecuvely earned on while an incum­

bent is defending him self in a cnminal tnal ” ).

,9 The Framers o f the Twenty-fifth Amendment were prim anly concerned with the possibility that a sitting Presi­

dent might be unable to discharge his duties due to incapacitation by physical or mental illness See generally

H earings on Presidential Inability Before th e Subcomm. on Constitutional Amendments o f the Senate Comm on

the Judiciary, 88th Cong. (1963), Hearings on Presidential Inability and Vacancies in the Office o f Vice President

Before the Subcomm. on Constitutional Amendm ents o f the Senate Comm, on the Judiciary, 88th Cong. (1964);

H earings on Presidential Inability Before the House Comm on the Judiciary, 89th Cong. (1965), Hearings on Presi­

dential Inability and Vacancies in the Office o f Vice President Before the Subcomm on Constitutional Amendments

o f the Senate Comm, on the Judiciary, 89th Cong. (1965) ( “ 1965 Senate H eanngs” ); Selected Materials on the

Twenty-Fifth Am endment, S. Doc. No 9 3 -4 2 (1973) which includes Senate Reports Nos 89-1382 and 89-66 But

the am endm ent’s terms “ unable” and “ inability” were not so narrowly defined, apparently out o f a recognition

that situations o f inability m ight take vanous forms not neatly falling into categones o f physical or mental illness

See, e.g , 1965 Senate H eanngs at 20 ( “ [T ]he intention o f this legislation is to deal with any type of inability,

w hether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy

or anything that is imaginable. The inability to perform the powers and duties of the office, for any reason is inability

under the terms lhat we are discussing ” ) (statement o f Sen Bayh); John D Feerick, The Twenty-fifth Amendment

197 (1976) ( “ A lthough the terms ‘unable’ an d ‘inability* are nowhere defined in either Section 3 or 4 of the Amend­

ment (or in Article II), this was not the result o f an oversight. Rather, it reflected a judgm ent that a ngid constitutional

definition was undesirable, since cases of inability could take vanous forms not neatly fitting into such a definition.” ).

Thus, while imprisonment appears not to have been expressly considered by the Framers as a form of inability,

the language o f the Twenty-fifth Amendment might be read broadly enough to encompass such a possibility

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A Sitting President's Amenability to Indictment and Criminal Prosecution

be a transfer of powers to an Acting President rather than a permanent disabling

of the executive branch. But the possibility of Vice-Presidential succession

“ hardly constitutes an argument in favor of allowing other branches to take

actions that would disable the sitting President.” 20 To rationalize the President’s

imprisonment on the ground that he can be succeeded by an “ Acting” replace­

ment, moreover, is to give insufficient weight to the people’s considered choice

as to whom they wish to serve as their chief executive, and to the availability

of a politically accountable process of impeachment and removal from office for

a President who has engaged in serious criminal misconduct.21 While the execu­

tive branch would continue to function (albeit after a period of serious dislocation),

it would still not do so as the people intended, with their elected President at

the helm.22 Thus, we conclude that the Twenty-fifth Amendment should not be

understood sub silentio to withdraw a previously established immunity and

authorize the imprisonment of a sitting President.

b.

Putting aside the possibility of criminal confinement during his term in office,

the severity of the burden imposed upon the President by the stigma arising both

from the initiation of a criminal prosecution and also from the need to respond

to such charges through the judicial process would seriously interfere with his

ability to carry out his constitutionally assigned functions. To be sure, in Clinton

v. Jones the Supreme Court rejected the argument that a sitting President is con­

stitutionally immune from civil suits seeking damages for unofficial misconduct.

But the distinctive and serious stigma of indictment and criminal prosecution

imposes burdens fundamentally different in kind from those imposed by the initi­

ation of a civil action, and these burdens threaten the President’s ability to act

as the Nation’s leader in both the domestic and foreign spheres. C linton’s rea­

soning does not extend to the question whether a sitting President is constitu­

tionally immune from criminal prosecution; nor does it undermine our conclusion

that a proper balancing of constitutional interests in the criminal context dictates

a presidential immunity from such prosecution.

20 1 Laurence H. Tnbe, American Constitutional Law §4 -1 4 , al 755 n.5 (3rd ed. 2000)

21 If the President resists the conclusion that he is “ unable” to discharge his public duties, a transition o f power

to the Vice President as Acting President depends on the concurrence o f both Houses of Congress by a two-thirds

vote But this ultimate congressional decision does not transform the process into a politically accountable one akin

to impeachment proceedings, for the situation forcing Congress’s hand would have been triggered by the decision

o f a single prosecutor and unaccountable grand jury to initiate and pursue the cnminal proceedings in the first

place

22 Although we do not consider here whether an elected President loses his immunity from criminal prosecution

if and while he is temporarily dispossessed of his presidential authonty under either §3 or § 4 o f the Twenty-fifth

Amendment, structural considerations suggest that an elected President remains immune from cnm inal prosecution

until he permanently leaves the Office by the expiration o f his term, resignation, or removal through conviction

upon impeachment

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The greater seriousness of criminal as compared to civil charges has deep roots

not only in the Constitution but also in its common law antecedents. Blackstone

distinguished between criminal and civil liability by describing the former as a

remedy for “ public wrongs” and the latter as a response to “ private wrongs.”

4 William Blackstone, C om m entaries *5. As he explained, “ [t]he distinction of

public wrongs from private, of crimes and misdemeanors from civil injuries, seems

principally to consist in this: that private wrongs, or civil injuries, are an infringe­

ment or privation of the civil rights which belong to individuals, considered merely

as individuals; public wrongs, or crimes and misdemeanors, are a breach and vio­

lation of the public rights and duties due to the whole community, considered

as a community, in its social aggregate capacity.” Id. This fundamental distinction

explains why a criminal prosecution may proceed without the consent of the

victim and why it is brought in the name of the sovereign rather than the person

immediately injured by the wrong. The peculiar public opprobrium and stigma

that attach to criminal proceedings also explain, in part, why the Constitution pro­

vides in Article III for a right to a trial by jury for all federal crimes, see Lew is

v. U n ited S tates, 518 U.S. 322, 334 (1996) (Kennedy, J. concurring), and provides

in the Sixth Amendment for a “ speedy and public trial,” U.S. Const, amend.

VI, see K lo p fe r v. N orth Carolina, 386 U.S. 213, 222 (1967) (pendency of an

indictment “ may subject [the defendant] to public scorn” and “ indefinitely

prolong[ j this oppression, as well as the ‘anxiety and concern accompanying

public accusation’ ” ) (citation omitted).23

The magnitude of this stigma and suspicion, and its likely effect on presidential

respect and stature both here and abroad, cannot fairly be analogized to that caused

by initiation of a private civil action. A civil complaint filed by a private person

is understood as reflecting one person’s allegations, filed in court upon payment

of a filing fee. A criminal indictment, by contrast, is a public rather than private

allegation of wrongdoing reflecting the official judgment of a grand jury acting

under the general supervision of the District Court. Thus, both the ease and public

meaning of a civil filing differ substantially from those of a criminal indictment.

Cf. F D IC v. M allen , 486 U.S. 230, 243 (1988) (“ Through the return of the indict­

ment, the Government has already accused the appellee of serious wrong­

doing.” ).24 Indictment alone risks visiting upon the President the disabilities that

23 In K lopfer, the Supreme Court held that the Sixth Amendment right to a speedy tnal is violated by the practice

o f having a prosecutor indefinitely suspend a prosecution after a grand jury returns an indictment. One of the purposes

o f the speedy tnal nght is to enable the defendant to be freed, as promptly as reasonably possible, from the “ disabling

cloud o f doubt and anxiety that an overhanging indictment invanably cam es with it ” 1 Laurence H Tnbe, American

Constitutional Law § 4 -1 4 , at 756. Cf In re Winship, 397 U.S. 358, 363 (1970) (“ The accused during a cnminal

prosecution has at stake interests o f immense importance, both because of the possibility that he may lose his liberty

upon conviction and because o f the certainty that he would be stigmatized by the conviction ” ).

24 In M allen, for example, the Court rejected a due process challenge to a statute authorizing the immediate suspen­

sion for up to 90 days, without a pre-suspension hearing, of a bank officer or director who is indicted for a felony

involving dishonesty or breach o f trust. In describing the significance of indictment for purposes of the due process

calculus, the Court observed as follows

The returning o f the indictment establishes that an independent body has determined that there is probable

cause to believe that the officer has committed a crime This finding is relevant in at least two

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A Sitting President's Amenability to Indictment and Criminal Prosecution

stem from the stigma and opprobrium associated with a criminal charge, under­

mining the President’s leadership and efficacy both here and abroad. Initiation

of a criminal proceeding against a sitting President is likely to pose a far greater

threat than does civil litigation of severely damaging the President’s standing and

credibility in the national and international communities. While this burden may

be intangible, nothing in the Supreme Court’s recent case law draws into question

the Department’s previous judgment that “ to wound [the President] by a criminal

proceeding is to hamstring the operation of the whole governmental apparatus,

both in foreign and domestic affairs.” OLC Memo at 30.

c.

Once criminal charges are filed, the burdens of responding to those charges

are different in kind and far greater in degree than those of responding to civil

litigation. The Court in Clinton v. Jones clearly believed that the process of

defending himself in civil litigation would not impose unwieldy burdens on the

President’s time and energy. The Court noted that “ [m]ost frivolous and vexatious

litigation is terminated at the pleading stage or on summary judgment, with little

if any personal involvement of the defendant.” 520 U.S. at 708. Moreover, even

if the litigation proceeds all the way to trial, the Court explicitly assumed that

“ there would be no necessity for the President to attend in person, though he

could elect to do so.” Id. at 692.

These statements are palpably inapposite to criminal cases. The constitutional

provisions governing criminal prosecutions make clear the Framers’ belief that

an individual’s mental and physical involvement and assistance in the preparation

of his defense both before and during any criminal trial would be intense, no

less so for the President than for any other defendant. The Constitution con­

templates the defendant’s attendance at trial and, indeed, secures his right to be

present by ensuring his right to confront witnesses who appear at the trial. See

U.S. Const, amend. VI; Illinois v. Allen , 397 U.S. 337, 338 (i970) (“ One of

the most basic of the rights guaranteed by the Confrontation Clause is the

accused’s right to be present in the courtroom at every stage of his trial.” ); see

a lso Fed. R. Crim. P. 43(a); U nited States v. G agnon, 470 U.S. 522, 526 (1985)

(Due Process Clause also protects right to be present). The Constitution also

guarantees the defendant a right to counsel, which is itself premised on the defend­

ant’s ability to communicate with such counsel and assist in the preparation of

important ways First, the finding o f probable cause by an independent body demonstrates that the suspen­

sion is not arbitrary Second, the return of the indictment itself is an objective fact that will in most cases

raise serious public concern that the bank is not being managed in a responsible manner.

486 U S at 244-45.

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his own defense. S ee U.S. Const, amend. VI.25 These protections stand in stark

contrast to the Constitution’s relative silence as to the rights of parties in civil

proceedings, and they underscore the unique mental and physical burdens that

would be placed on a President facing criminal charges and attempting to fend

off conviction and punishment. These burdens inhere not merely in the actual

trial itself, but also in the substantial preparation a criminal trial demands.

It cannot be said of a felony criminal trial, as the Court said of the civil action

before it in C linton v. Jones, that such a proceeding, “ if properly managed by

the District Court, . . . [is] highly unlikely to occupy any substantial amount of

petitioner’s time.” Clinton, 520 U.S. at 702.26 The Court there emphasized the

many ways in which a district court adjudicating a civil action against the Presi­

dent could and should use flexibility in scheduling so as to accommodate the

demands of the President’s constitutionally assigned functions on his time and

energy. S ee id. at 706 (noting that a district court “ has broad discretion to stay

proceedings as an incident to its power to control its own docket” ).27 The Court

explicitly “ assume[d] that the testimony of the President, both for discovery and

for use at trial, may be taken at the White House at a time that will accommodate

his busy schedule.” Id. at 691—92. The Court thus concluded that “ [a] 1though

scheduling problems may arise, there is no reason to assume that the district courts

will be . . . unable to accommodate the President’s needs.” Id. at 709.28

Although the Court determined in Clinton v. Jones that “ [t]he fact that a federal

court’s exercise of its traditional Article III jurisdiction may significantly burden

the time and attention of the chief Executive is not sufficient to establish a viola­

tion o f the Constitution,” 520 U.S. at 703, this determination must be understood

in light of the Court’s own characterizations o f the manageable burdens imposed

25 In theory, o f course, the President could decline to appear at his own criminal tnal, notwithstanding the strong

Anglo-American tradition against trials in absentia But availability of this option says little about the constitutional

issue, there is no evidence that the Framers intended that the President waive an entire panoply of constitutional

guarantees and n sk conviction in order to fulfill his public obligations.

26W ith respect specifically to concerns about mental preoccupation, the Court in Clinton v. Jones “ recogmze[d]

that a President, like any other official or private citizen, may become distracted or preoccupied by pending litiga­

tion,” 520 U.S at 705 n.40, but likened this distraction to other “ vexing” distractions caused by “ a variety of

demands on their time, . . . som e pnvate, som e political, and some as a result of official duty.” Id As a “ predictive

judgm ent,” id. at 702, however, the level o f mental preoccupation entailed by a threat of criminal conviction and

imprisonment would likely far exceed that entailed by a private civil action

27 In his opinion concurring in the judgment, Justice Breyer further emphasized the C ourt’s assumptions with

respect to the scheduling flexibility properly due the President by the district court He explained that he agreed

“ with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits

based upon his private conduct ” 520 U S. at 710. Nevertheless, he emphasized that

once the President sets forth and explains a conflict between judicial proceeding and public duties, the

m atter changes A t that point, the Constitution permits a judge to schedule a tnal in an ordinary civil

damages action (where postponement normally is possible without overwhelming damage to a plaintiff)

only within the constraints o f a constitutional principle — a principle lhat forbids a federal judge in such

a case to interfere with the President’s discharge o f his public duties.

Id.

28 The Court added that, “ [although Presidents have responded to written interrogatories, given depositions, and

provided videotaped tn al testimony, no sitting President has ever testified, or been ordered to testify, in open court ”

Id. at 692 n 14. In cnrrunal litigation, as compared to civil litigation, however, the presence of the accused is a

sina qua non o f a valid trial, absent extraordinary circumstance.

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by civil litigation. By contrast, criminal proceedings do not allow for the flexibility

in scheduling and procedures upon which Clinton v. Jones relied. Although the

Court emphasized that “ our decision rejecting the immunity claim and allowing

the case to proceed does not require us to confront the question whether a court

may compel the attendance of the President at any specific time or place,” id.

at 691, a criminal prosecution would require the President’s personal attention

and attendance at specific times and places, because the burdens of criminal

defense are much less amenable to mitigation by skillful trial management. Indeed,

constitutional rights and values are at stake in the defendant’s ability to be present

for all phases of his criminal trial. For the President to maintain the kind of effec­

tive defense the Constitution contemplates, his personal appearance throughout

the duration of a criminal trial could be essential. Yet the Department has consist­

ently viewed the requirement that a sitting President personally appear at a trial

at a particular time and place in response to judicial process to raise substantial

separation of powers concerns. See Memorandum for Arthur B. Culvahouse, Jr.,

Counsel to the President, from Douglas W. Kmiec, Assistant Attorney General,

Office of Legal Counsel, Re: C onstitutional C oncerns Im plicated b y D em an d f o r

P residen tial E vidence in a C rim inal Prosecution (Oct. 17, 1988).29

In contrast to ordinary civil litigation, moreover, which the Court in Clinton

v. Jones described as allowing the trial court to minimize disruptions to the Presi­

dent’s schedule, the Sixth Amendment’s guarantee to criminal defendants of a

“ speedy and public trial,” U.S. Const, amend. VI, circumscribes the trial court’s

flexibility. Once a defendant is indicted, his right to a speedy trial comes into

play. See U nited States v. M arion, 404 U.S. 307 (1971) (defendant’s speedy trial

right is triggered when he is “ accused” by being indicted). In addition, under

the federal Speedy Trial Act, the trial judge’s discretion is constrained in order

to meet the statutory speedy trial deadlines. See 18 U.S.C. §§3161-3174 (1994).

While a defendant may waive his speedy trial rights, it would be a peculiar con­

stitutional argument to say that the President’s ability to perform his constitutional

29 The Kmiec memorandum explained that “ it has been the rule since the Presidency of Thomas Jefferson lhat

a judicial subpoena in a criminal case may be issued to the President, and any challenge to the subpoena must

be based on the nature o f the information sought rather than any immunity from process belonging to the President ”

See Memorandum for Arthur B Culvahouse, Jr., Counsel to the President, from Douglas W Kmiec, Assistant

Attorney General, Office o f Legal Counsel, Re Constitutional Concerns Implicated by Demand fo r Presidential

Evidence in a Criminal Prosecution at 2 (Oct. 17, 1988). However, the memorandum proceeded to explain,

“ (although there are no judicial opinions squarely on point, historical precedent has clearly established that sitting

Presidents are not required to testify in person at cnminal trials.” Id. at 3 (reviewing precedents) The memorandum

noted in particular that Attorney General Wirt had advised President Monroe in 1818 that “ [a] subpoena ad

testificandum may I think be properly awarded to the President o f the U.S . But if the presence o f the chief

magistrate be required at the seat o f government by his official duties, I think those duties paramount to any claim

which an individual can have upon him, and that his personal attendance on the court from which the summons

proceeds ought to be, and must, o f necessity, be dispensed with . 11 Id at 4 (quoting Opinion of Attorney

General Wirt, January 13, 1818, quoted in Ronald D. Rotunda, Presidents and Ex-Presidents as Witnesses. A B n e f

Historical Footnote," 1975 U. Ill L. F. J, 6) The memorandum concluded that “ the controlling pnnciple that

emerges from the histoncal precedents is that a sitting President may not be required to testify in court at a criminal

tnal because his presence is required elsewhere for his ‘official duties’ — or, in the vernacular of the time, required

at ‘the seat o f government.’ “ Id at 6 (citations and footnote omitted).

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duties should not be considered unduly disrupted by a criminal trial merely

because the President could, in theory, waive his personal constitutional right to

a speedy trial. The Constitution should not lightly be read to put its Chief Execu­

tive officer to such a choice.

In sum, unlike private civil actions for damages — or the two other judicial proc­

esses with which such actions were compared in Clinton v. Jones (subpoenas for

documents or testimony and judicial review and occasional invalidation of the

President’s official acts, see 520 U.S. at 703-05) — criminal litigation uniquely

requires the President’s person al time and energy, and will inevitably entail a

considerable if not overwhelming degree o f mental preoccupation.30 Indictment

also exposes the President to an official pronouncement that there is probable

cause to believe he committed a criminal act, see, e.g., U nited S tates v. R. E n ter­

p rises, Inc., 498 U.S. 292, 297-98 (1991), impairing his credibility in carrying

out his constitutional responsibilities to “ take Care that the Laws be faithfully

executed,” U.S. Const, art. II, § 3, and to speak as the “ sole organ” of the United

States in dealing with foreign nations. U nited States v. C urtiss-W right E xport

C o rp., 299 U.S. 304, 319-20 (1936); see a lso C hicago & Southern A ir Lines

v. W aterm an S.S. C orp., 333 U.S. 103, 111 (1948) (describing the President “ as

the Nation’s organ for foreign affairs” ); U nited States v. Louisiana, 363 U.S. 1,

35 (1960) (“ The President . . . is the constitutional representative of the United

States in its dealings with foreign nations.” ). These physical and mental burdens

imposed by an indictment and criminal prosecution of a sitting President are of

an entirely different magnitude than those imposed by the types of judicial process

previously upheld by the Court.

It is conceivable that, in a particular set of circumstances, a particular criminal

charge will not in fact require so much time and energy of a sitting President

so as materially to impede the capacity of the executive branch to perform its

constitutionally assigned functions. It would be perilous, however, to make a judg­

ment in advance as to whether a particular criminal prosecution would be a case

o f this sort. Thus a categorical rule against indictment or criminal prosecution

is most consistent with the constitutional structure, rather than a doctrinal test

that would require the court to assess whether a particular criminal proceeding

is likely to impose serious burdens upon the President.31

30 W hile illustrating the potentially burdensome nature o f judicial review o f Presidential acts with the “ most dra­

matic exam ple” o f Youngstown Sheet & Tube Co. v Sawyer, 343 U S 579 (1952) (invalidating President Trum an’s

order directing the seizure and operation of steel mills), the Court mentioned “ the substantial time that the President

must necessarily have devoted to the matter as a result of judicial involvement ” Clinton v Jones, 520 U S at

703. O f course, it is most frequently the case that the President spends little or no time personally engaged in

such confrontations, with the task o f defending hjs policies in court falling to subordinate executive branch officials

See, e g ., M aeva Marcus, Truman and the S teel Seizure Case 102-77 (1977) (describing in detail Department of

Justice attorneys’ involvement in the steel seizure litigation w ithout discussing any role played personally in the

litigation by President Truman). Such a routine delegation o f responsibilities is unavailable when the President person­

ally faces cnm inal charges

31 Cf. Clinton v Jones, 520 U.S at 706 ( “ Indeed, if the Framers of the Constitution had thought it necessary

to protect the President from the burdens of private litigation, we think it far more likely that they would have

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3.

Having identified the burdens imposed by indictment and criminal prosecution

on the President’s ability to perform his constitutionally assigned functions, we

must still consider whether these burdens are “justified by an overriding need

to promote” legitimate governmental objectives, Administrator o f General Serv­

ices, 433 U.S. at 443, in this case the expeditious initiation of criminal pro­

ceedings. United States v. Nixon underscored the legitimacy and importance of

facilitating criminal proceedings in general. Although Nixon did not address the

interest in facilitating criminal proceedings against the President, it is fair to say

that there exists an important national interest in ensuring that no person —

including the President — is above the law. Clinton v. Jones underscored the legit­

imacy and importance of allowing civil proceedings against the President for

unofficial misconduct to go forward without undue delay. Nevertheless, after

weighing the interests in facilitating immediate criminal prosecution of a sitting

President against the interests underlying temporary immunity from such prosecu­

tion, considered in light of alternative means of securing the rule of law, we adhere

to our 1973 determination that the balance of competing interests requires recogni­

tion of a presidential immunity from criminal process.

Recognizing an immunity from prosecution for a sitting President would not

preclude such prosecution once the President’s term is over or he is otherwise

removed from office by resignation or impeachment.32 The relevant question,

therefore, is the nature and strength of any governmental interests in immediate

prosecution and punishment.

With respect to immediate punishment, the legitimate objectives of retribution

and specific deterrence underlying the criminal justice system compete against

a recognition of presidential immunity from penal incarceration. The obvious and

overwhelming burdens that such incarceration would impose on the President’s

ability to perform his constitutionally assigned functions, however, clearly support

the conclusion that a sitting President may not constitutionally be imprisoned upon

a criminal conviction. See supra note 18 and accompanying text. The public’s

general interest in retribution and deterrence does not provide an “ overriding

need” for immediate as opposed to deferred incarceration.

With respect to immediate prosecution, we can identify three other govern­

mental interests that might be impaired by deferring indictment and prosecution

adopted a categorical rule than a rule that required the President to litigate the question whether a specific case

belonged in the ‘exceptional case’ subcategory ” )

32 The temporary nature o f the immunity claimed here distinguishes it from that pressed in Nvcon v. Fitzgerald,

which established a permanent immunity from civil suits challenging official conduct. The temporary immunity

considered here is also distinguishable from that pressed by the President but rejected in United States v. Nixon,

since the claim o f executive privilege justifying the withholding o f evidence relevant to the criminal prosecution

of other persons would apparently have suppressed the evidence without any identifiable time limitation The asserted

privilege might therefore have forever thwarted the public’s interest in enforcing its cnminal laws See United States

v. Nixon, 418 U.S at 713 ( “ Without access to specific facts a cnminal prosecution may be totally frustrated.” ).

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until after the accused no longer holds the office of President: (1) avoiding the

bar o f a statute of limitations; (2) avoiding the weakening of the prosecution’s

case due to the passage of time; and (3) upholding the rule of law. We consider

each of these in turn.

The interest in avoiding the statute of limitations bar by securing an indictment

while the President remains sitting is a legitimate one. However, we do not believe

it is of significant constitutional weight when compared with the burdens such

an indictment would impose on the Office of the President, especially in light

of alternative mechanisms to avoid a time-bar. First, a President suspected of the

most serious criminal wrongdoing might well face impeachment and removal from

office before his term expired, permitting criminal prosecution at that point.

Second, whether or not it would be appropriate for a court to hold that the statute

of limitations was tolled while the President remained in office (either as a con­

stitutional implication of temporary immunity or under equitable principles33),

Congress could overcome any such obstacle by imposing its own tolling rule.34

At most, therefore, prosecution would be delayed rather than denied.

Apart from concern over statutes of limitations, we recognize that a presidential

immunity from criminal prosecution could substantially delay the prosecution of

a sitting President, and thereby make it more difficult for the ultimate prosecution

to succeed.35 In Clinton v. Jones, the Court observed that — notwithstanding the

continuation of civil discovery — “ delaying trial would increase the danger of

prejudice resulting from the loss of evidence, including the inability of witnesses

to recall specific facts, or the possible death of a party.” 520 U.S. at 707-08.

33 Federal courts have suggested that, in proper circumstances, criminal as well as civil statutes of limitation are

subject to equitable tolling. See, e .g , United States v. Midgtey, 142 F.3d 174, 178-79 (3d Cir 1998) ( “ Although

the doctrine o f equitable tolling is most typically applied to limitation penods on civil actions, there is no reason

to distinguish between the nghts protected by criminal and civil statutes of limitations.” ) (internal quotation omitted);

c f United States v. Levine, 658 F.2d 113, 119-21 (3d C ir 1981) (noting that cnminal statutes of limitations have

a primary purpose o f providing fairness to the accused, but are “ perhaps not inviolable” and are subject to tolling,

suspension, and waiver). Equitable tolling, however, is invoked only spanngly, in the “ rare situation where [it]

is demanded by sound legal principles as well as the interests o f justice ” Alvarez-Machain v. United States, 107

F 3d 696, 701 (9th Cir 1996) (tolling two-year limitation period for FTCA actions where plaintiff had been incarcer­

ated for two years)

34 See, e.g , 18 U S C. § 3287 (1994) (suspension of cnminal statutes of limitation for certain fraud offenses against

the United States until three years after the termination o f hostilities); United States v. Grainger, 346 U.S 235

(1953) (applying this statutory suspension). W e believe Congress denves such authonty from its general power to

“ make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested

by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U S Const,

art I, § 8 , cl. 18. Cf. Clinton v. Jones, 520 U .S. at 709 (“ If Congress deems it appropriate to afford the President

stronger protection, it may respond with appropriate legislation.” ). Indeed, without deciding the question, we note

that Congress may have pow er to enact a tolling provision governing the statute of limitations for conduct that

has already occurred, at least so long as the onginal statutory penod has not already expired C f United States

v. Pow ers, 307 U S . 214 (1939) (rejecung Ex Post Facto challenge to a prosecution based on a statute extending

the life o f a temporary cnm inal statute before its original expiration date); c f, e.g., United States v Grimes, 142

F.3d 1342, 1350-51 (1 1th Cir. 1998) (collecting decisions rejecting Ex Post Facto challenges to statutes extending

the limitations period as applied to conduct for which the original penod had not already run), cert denied, 525

U S. 1088 (1999)

35 In theory, the delay could be as long as 10 years, for a President who onginally assumes the office through

ascension rather than election and then fiilly serves two elected terms. See U S. Const, amend. XXII, § 1 Given

quadrennial elections and the possibility of impeachment, however, it seems unlikely that a President who is senously

suspected o f grave cnm inal wrongdoing would rem ain in office for that length of time

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The Court considered this potential for prejudice to weigh against recognition of

temporary immunity from civil process. We believe that the costs of delay in

the criminal context may differ in both degree and kind from delay in the civil

context.36 But in any event it is our considered view that, when balanced against

the overwhelming cost and substantial interference with the functioning of an

entire branch of government, these potential costs of delay, while significant, are

not controlling. In the constitutional balance, the potential for prejudice caused

by delay fails to provide an “ overriding need” sufficient to overcome the jus­

tification for temporary immunity from criminal prosecution.

Finally, recognizing a temporary immunity would not subvert the important

interest in maintaining the “ rule of law.” To be sure, as the Court has emphasized,

“ [n]o man in this country is so high that he is above the law.” United States

v. Lee , 106 U.S. 196, 220 (1882). Moreover, the complainant here is the Govern­

ment seeking to redress an alleged crime against the public rather than a private

person seeking compensation for a personal wrong, and the Court suggested in

Nixon v. Fitzgerald that “ there is a lesser public interest in actions for civil dam­

ages than, for example, in criminal prosecutions,” 457 U.S. at 754 n.37; see id.

(describing United States v. Nixon as “ basing holding on special importance of

evidence in a criminal trial and distinguishing civil actions as raising different

questions not presented for decision” ). However, unlike the immunities claimed

in both Nixon cases, see supra note 32, the immunity from indictment and criminal

prosecution for a sitting President would generally result in the delay, but not

the forbearance, of any criminal trial. Moreover, the constitutionally specified

impeachment process ensures that the immunity would not place the President

“ above the law.” A sitting President who engages in criminal behavior falling

into the category of “ high Crimes and Misdemeanors,” U.S. Const, art. II, §4,

is always subject to removal from office upon impeachment by the House and

conviction by the Senate, and is thereafter subject to criminal prosecution.

4.

We recognize that invoking the impeachment process itself threatens to

encumber a sitting President’s time and energy and to divert his attention from

36 On the one hand, there may be less reason to fear a prejudicial loss of evidence in the cnminal context A

grand jury could continue to gather evidence throughout the penod o f immunity, even passing this task down to

subsequently empaneled grand juries if necessary. See Fed. R. C nm . P 6(e)(3)(C)(m) Moreover, in the event of

suspicion of senous wrongdoing by a sitting President, the media and even Congress (through its own investigatory

powers) would likely pursue, collect and preserve evidence as well These multiple mechanisms for securing and

preserving evidence could mitigate somewhat the effect of a particular witness’s failed recollection or demise By

contrast, many civil litigants would lack the resources and incentives to pursue and preserve evidence in the same

comprehensive manner

On the other hand, the consequences of any prejudicial loss o f evidence that does occur in the cnminaJ context

are more grave, given the presumptively greater stakes for both the United States and the defendant in criminal

litigation See United States v Nixon, 418 U S at 711-13, 713 (in emphasizing the importance o f access to evidence

in a pending cnminal trial, giving significant weight in the constitutional balance to “ the fundamental demands

of due process o f law in the fair administration of cnm inal justice” ).

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his public duties. But the impeachment process is explicitly established by the

Constitution. While in some circumstances an impeachment and subsequent Senate

trial might interfere with the President’s exercise of his constitutional responsibil­

ities in ways somewhat akin to a criminal prosecution, “ this is a risk expressly

contemplated by the Constitution, and it is a necessary incident of the impeach­

ment process.” OLC Memo at 28. In other words, the Framers themselves specifi­

cally determined that the public interest in immediately removing a sitting Presi­

dent whose continuation in office poses a threat to the Nation’s welfare outweighs

the public interest in avoiding the Executive burdens incident thereto.

The constitutionally prescribed process of impeachment and removal, moreover,

lies in the hands of duly elected and politically accountable officials. The House

and Senate are appropriate institutional actors to consider the competing interests

favoring and opposing a decision to subject the President and the Nation to a

Senate trial and perhaps removal. Congress is structurally designed to consider

and reflect the interests of the entire nation, and individual Members of Congress

must ultimately account for their decisions to their constituencies. By contrast,

the most important decisions in the process o f criminal prosecution would lie in

the hands of unaccountable grand and petit jurors, deliberating in secret, perhaps

influenced by regional or other concerns not shared by the general polity, guided

by a prosecutor who is only indirectly accountable to the public. The Framers

considered who should possess the extraordinary power of deciding whether to

initiate a proceeding that could remove the President — one of only two constitu­

tional officers elected by the people as a whole — and placed that responsibility

in the elected officials of Congress. It would be inconsistent with that carefully

considered judgment to permit an unelected grand jury and prosecutor effectively

to “ remove” a President by bringing criminal charges against him while he

remains in office.

Thus, the constitutional concern is not merely that any particular indictment

and criminal prosecution of a sitting President would unduly impinge upon his

ability to perform his public duties. A more general concern is that permitting

such criminal process against a sitting President would affect the underlying

dynamics of our governmental system in profound and necessarily unpredictable

ways, by shifting an awesome power to unelected persons lacking an explicit con­

stitutional role vis-a-vis the President. Given the potentially momentous political

consequences for the Nation at stake, there is a fundamental, structural incompati­

bility between the ordinary application of the criminal process and the Office of

the President.

For these reasons we believe that the Constitution requires recognition of a

presidential immunity from indictment and criminal prosecution while the Presi­

dent is in office.

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A Sitting President's Amenability to Indictment and Criminal Prosecution

5.

In 1973, this Department concluded that a grand jury should not be permitted

to indict a sitting President even if all subsequent proceedings were postponed

until after the President left office. The Court’s emphasis in Clinton v. Jones on

the interests of Article III courts in allowing ordinary judicial processes to go

forward against a sitting President, and its reliance on scheduling discretion to

prevent those processes from interfering with performance of the President’s con­

stitutional duties, might be thought to call this aspect of the Department’s 1973

determination into question. We have thus separately reconsidered whether, if the

constitutional immunity extended only to criminal prosecution and confinement

but not indictment, the President’s ability to perform his constitutional functions

would be unduly burdened by the mere pendency of an indictment against which

he would need to defend himself after leaving office.

We continue to believe that the better view of the Constitution accords a sitting

President immunity from indictment by itself. To some degree, indictment alone

will spur the President to devote some energy and attention to mounting his even­

tual legal defense.37 The stigma and opprobrium attached to indictment, as we

explained above, far exceed that faced by the civil litigant defending a claim.

Given “ the realities of modem politics and mass media, and the delicacy of the

political relationships which surround the Presidency both foreign and domestic,”

there would, as we explained in 1973, “ be a Russian roulette aspect to the course

of indicting the President but postponing trial, hoping in the meantime that the

power to govern could survive.” OLC Memo at 3 1.38 Moreover, while the burdens

imposed on a sitting President by indictment alone may be less onerous than those

imposed on the President by a full scale criminal prosecution, the public interest

in indictment alone would be concomitantly weaker assuming that both trial and

punishment must be deferred, and weaker still given Congress’ power to extend

the statute of limitations or a court’s possible authority to recognize an equitable

tolling.

Balancing these competing concerns, we believe the better view is the one

advanced by the Department in 1973: a sitting President is immune from indict­

ment as well as from further criminal process. Where the President is concerned,

37 C f Moore v. Arizona, 414 U.S. 25, 27 (1973) (indictment with delayed tnal “ may disrupt [a defendant’s]

employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety

in him, his family and his friends” ) (citations omitted) Indeed, indictment coupled with temporary immunity from

further prosecution may even magnify the problem, since the President would be legally stigmatized as an alleged

cnminal without any meaningful opportunity to respond to his accusers in a court of law

38 Our conclusion would hold true even if such an indictment could lawfully be filed, and were filed, under seal.

Given the indictment’s target it would be very difficult to preserve its secrecy C f United States v Nixon, 418

U S. at 687 n.4 (noting parties’ acknowledgment that “ disclosures to the news media made the reasons for continu­

ance of the protective order no longer meaningful,” with respect to the “ grand jury’s immediate finding relating

to the status of the President as an unmdicted co-conspirator” ) Permitting a prosecutor and grand jury to issue

even a sealed indictment would allow them to take an unacceptable gamble with fundamental constitutional values

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only the House of Representatives has the authority to bring charges of criminal

misconduct through the constitutionally sanctioned process of impeachment.

in.

In 1973, 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. No court has addressed this ques­

tion directly, but the judicial precedents that bear on the continuing vaUdity of

our constitutional analysis are consistent with both the analytic approach taken

and the conclusions reached. Our view remains that a sitting President is constitu­

tionally immune from indictment and criminal prosecution.

RANDOLPH D. MOSS

Assistant Attorney General

Office o f Legal Counsel

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