Hastings Constitutional Law Quarterly
The frequent investigations examining the possibility of executive misconduct suggest the country eventually will have to face a major and hitherto unresolved issue: May Presidents and Vice Presidents be indicted while in office?
Part I reviews what is known about the history of the issue at the time of the adoption of the Constitution. It brings to light the previously unremarked fact that there was explicit disagreement on this point among members of the founding generation, and concludes that we must base our judgment on other considerations.
Part II examines national historical practice since the ratification of the Constitution, and finds that all high federal officeholders-through and including the Vice President-have been uniformly considered subject to criminal prosecution while in office.
Part III considers issues of constitutional theory. Beginning with the Framers' views on the dangers of official abuse, this Part examines the two-fold nature of the Impeachment Clause-separating issues of political suitability to hold office from those of criminal liability for wrongdoing-and then turns to the regime of civil but not criminal immunity that has been developed in the case of other officeholders. It reaches two conclusions. First, holding Presidents and Vice Presidents amenable to criminal prosecution while in office would be consistent with the letter and spirit of the immunity cases. Second, and more significantly, that result would be justified by both the traditional understanding of the purpose of "the rule of law," viz. to curb the bad officeholder, and by a newer one that I propose as an outgrowth of the recent "republican revival" in constitutional scholarship, viz. to demonstrate the virtue of a good officeholder.
Part IV considers and rejects, on factual and legal grounds, a series of practical objections: (A) the argument that indicting the President would effectively constitute a removal from office in derogation of the constitutional exclusivity of the impeachment remedy, (B) the threat that the President might be subject to frivolous prosecutions, and (C) the danger that fear of criminal liability might chill the President from the vigorous discharge of duty.
Eric M. Freedman,
The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/449