Brian C. Kalt—

Practicalities

As they were designing the presidency, the delegates at the Constitutional Convention in 1787 discussed hypothetical criminal presidents. In recent decades—the era of the independent counsel—things have gotten less hypothetical, with serious investigations affecting Presidents Nixon, Reagan, Bush, Clinton, and Bush.

Nixon and Clinton came closest to being prosecuted in office, and their cases reveal some important practical points. First, prosecutors are reluctant to prosecute presidents, especially if it means getting ahead of the impeachment process. Nixon certainly appeared to be a crook, but special prosecutor Leon Jaworski asked the grand jury only to declare him an “unindicted co-conspirator.” Jaworski had no reason to stick his neck out, because Congress was investigating Nixon and eventually began impeachment proceedings. When Nixon resigned, the immunity issue became moot. President Clinton’s pursuers let Congress go first too. After Clinton was acquitted by the Senate, criminal prosecution still loomed. On January 19, 2001, one day before any presidential immunity he had would have expired, Clinton settled with prosecutor Robert Ray, admitting wrongdoing and accepting some non-criminal sanctions. Jaworski and Ray proceeded as though they could prosecute sitting presidents, but decided that they would not.

Prosecutors have plenty of incentive to wait. Any person politically formidable enough to become president and avoid impeachment would have a good chance of finding at least one sympathetic juror. Moreover, a sitting president could complain that the prosecutor was trying to overturn an election and was bypassing Congress (the appropriate forum for accusing presidents). As a constitutional matter, the president’s arguments would have some obvious holes, but as a political matter they could have some power. Any sensible prosecutor would avoid these added burdens if possible.

Most likely, then, a presidential prosecution would go forward only if the president had enough time left in his term (unlike Clinton) but Congress was off the case (unlike Nixon). The prosecutor might move forward if the Senate had acquitted the president (like Clinton) or if the House was not pushing impeachment at all (like our hypothetical President Hobson). If a president survives or avoids impeachment, it does not necessarily mean that the criminal case against him is weak. Some in Congress might believe that the president is guilty, but that his offense is not an impeachable one; others might consider removal from office too harsh a penalty. By contrast, prosecutors and jurors would not care whether the president’s offense was a “high crime or misdemeanor,” and it would not be their job to select a punishment.

Certain cases are good candidates for prosecution but not impeachment, or vice versa. Some factors are tricky. For instance, if the president’s crime is horrendous and his guilt is obvious, prosecutors will want to go after him, but so will Congress. The crime would have to hit a small target: heinous enough to motivate the prosecutor, non-heinous enough for Congress to let it go. Similarly, the preliminary evidence of the president’s guilt would need to be compelling, but not too compelling.

Other factors are easier. The more “private” the crime is—like drugs, assault, or tax evasion, as opposed to bribery—the more likely it is to warrant criminal prosecution but not impeachment. Other one-way factors are the president’s level of political support (crucial in Congress, less relevant in court) and the temperament of the prosecutor (a key factor for the criminal case, but not in Congress).

That last point is significant. Prosecutors are trained to make deals with low-level offenders in order to bring down the big boss, as in this chapter’s opening scenario. But prosecutors also balance their punitive impulses with considerations of efficiency, proportion, and fairness, and independent counsels can be insulated from these considerations. They often have no other cases. Immersed in the details of their main target’s imperfections, it is easier for them to lose perspective and cross the line from “sensible” to “obsessive.” (If the prosecution is instead in state court, the D.A. might be more accountable, but only to local voters or state officials.)

None of this—a president accused of a crime early in his term, Congress unwilling to take up the case, an aggressive prosecutor—is hard to picture. It might not be likely that these factors will come together, but surely it is imaginable.

For its part, the public probably would not care much about the finer legal points in which the lawyers and judges would traffic. For an average citizen, the best reason to allow a sitting president to be prosecuted would be “I think he’s guilty” or “I never liked that guy.” The main argument for immunity would be the opposite. That this completely ignores the legal principles (and the reason for having a trial at all) is beside the point; a president who lacks sufficient popular support and who is credibly accused of a serious crime would be impeached or would resign. If the president is in a position to tough it out, though, public opinion would be less important as the more legalistic and less political courts take center stage.

From Constitutional Cliffhangers: A Legal Guide for Presidents and their Enemies by Brian C. Kalt. Reproduced by permission.

Brian C. Kalt is professor of law at Michigan State University.

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