Going Back to School

Going Back to School

Twelve years of public school, four years of college, a semester of law school, three years to get a Masters, and twenty-six years of teaching history and government: throughout that time I learned and taught that the President of the United States was “immune” from prosecution while in office.

In high school I was more than fixated on the Watergate crisis: I watched the three committees hearings almost gavel to gavel, I read everything I could about it, I memorized the Nixon re-election campaign personnel charts.  The Special Prosecutor’s office of Archibald Cox and Leon Jarworski made it clear then, that they did not think they could charge a President.  In their major indictments, when the Attorney General, the Chief of Staff, the Secretary of Treasury and others were brought to trial, there was an eighth “unnamed and unindicted co-conspirator.”  It was clear who this was:  President of the United States Richard M. Nixon.

The Watergate special prosecutors thought their only option was for the House to impeach the President, and the Senate to hold a  trial and remove him.  I thought it was gospel, or in the legal term:  black letter law.

This week the legal team for President Trump re-asserted the claim that the President, while serving, is outside of the reach of the legal system.  Mayor Giuliani went as far as to say that Trump could have shot (FBI Director) Comey in the Oval Office, and there would be nothing the courts could do. While Guiliani may have been tricked into the old “law school game” of taking a position to its most absurd end, this is where they stand.

Seeing that position, I went back to the actual “black letter law,” the Constitution of the United States.  The US Constitution in Article 1, Section 6 does create limited immunity for members of Congress:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Constitutional convention considered the possibility that members of the government might be subject to the legal system.  In order to keep them from arrests that might be used to prevent them from attending sessions, they were given limited immunity.  It also protected them from legal liability for what they might say in debate.

The authors knew that the sessions of Congress would be limited (four or five months a year in the beginning) and carved out exceptions for major crimes. Members of Congress were clearly NOT above the law.

US Constitution Article 2, Section 4 speaks to the removal of the President:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

This is the only place where possible criminal activity by the President is addressed.  So while the authors of the Constitution clearly thought about criminal immunity for members of Congress (Art.1, §6,) they did not mention it when it came to the President, other than grounds for impeachment.  The President then, clearly is NOT above the law.  The Constitution outlines the process of removing him from office, but it specifically does not grant him criminal immunity.

So where did the “immunity” idea came from?  Like all good controversies in US History, enter Thomas Jefferson and Aaron Burr.

After Burr shot Hamilton (giving drama to the ending of an amazing musical) he headed west across the Appalachians.  He got involved with a group plotting to break away from the United States, and in 1807 was brought to trial for treason.  Burr subpoenaed the President of the United States, Thomas Jefferson, to testify on his behalf at the trial in Richmond.  Chief Justice John Marshall, sitting as a traveling federal judge, presided in the case.

Jefferson refused to appear, citing the pressing duties of the Presidency. Marshall did not enforce nor did he rule on the subpoena (but Burr was acquitted.)  So a precedent was sort of established relieving the President from appearing in court.  Presidents have cited Jefferson and Marshall ever since.

On the other hand, when Richard Nixon refused a subpoena to hand over evidence (tapes) to the Special Prosecutors, the Supreme Court ruled 8-0 requiring release. Nixon might have refused (guaranteeing his impeachment.) Instead, he chose to comply, and was forced to resign within the month.

And when Bill Clinton said he was too busy to testify in a civil case, the Supreme Court unanimously ruled that that he couldn’t hide behind privilege.  He ultimately did testify, and lied, and was impeached (but not convicted or removed.)

So where is the “black letter law” granting the President immunity?  There isn’t any.  There is a series of norms and traditions that respects the President’s time, and treats him with special care.    Presidents deserve the respect that this implies, and Giuliani has a point when he stated that the President should be worried about North Korea not Bob Mueller.  But when it comes to the assertion that he is immune, there is no statute or Constitutional provision they can cite.

To history and government classes from 1978 to 2006, you have my apologies.  I can blame Special Prosecutor Leon Jaworski, but I failed to find the nuance in his position.   And to everyone else:  this President has been nothing if not a “norm and tradition breaker.”   It is no wonder they are worried that this one might be broken.