America's Unwritten Constitution: The Precedents and Principles We Live By (9 page)

Of course, in such situations the vice president may take over. But if so, the votes of millions across the continent are being set aside by a local body of grand jurors and petit jurors from one city or county.
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In these scenarios, the part is undoing the decision of the whole, turning the constitutional
order topsy-turvy. A courageous president faithfully discharging his constitutional duty may at times need to take actions that render him hugely unpopular in one city, county, state, or even region. No single locality should be allowed to prevent or punish this faithful discharge of national duty. Abraham Lincoln became president by dint of a national vote of confidence, and only a comparable national process could properly dislodge him from the presidency.

The Constitution provided for just such a process to dislodge a miscreant president: impeachment. In this process, nationally accountable bodies would make the pivotal decisions to intrude upon, and, if necessary, oust, a nationally elected executive. The House, acting as a special grand jury, would represent not one city or county but all America, as would the Senate in its capacity as impeachment judge and jury. In addition, the American people themselves would have regular opportunities to judge the president at election time and to send him packing if they found him wanting. Once out of office, an ex-president could stand trial for his alleged crimes without undue prejudice to the national business.
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Even if the underlying criminal conduct alleged by a state against the president did not rise to the level of an offense that warranted impeachment and removal, House and Senate members might in certain situations properly view the president’s decision to invoke immunity as itself grossly corrupt and hence impeachable. Imagine a scenario of national peace and prosperity where the president did have spare time, and where the state criminal charges proffered against him seemed on their face to be entirely nonpretextual, based on strong evidence, and susceptible of quick adjudication in an ordinary criminal trial. In such a case, congressmen might believe that an honorable president would waive immunity and clear his name. If the president refused to take this path, that refusal itself might cast doubt on his probity and fitness to hold high office.
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This interpretation of constitutional structure finds considerable support in constitutional history. In two separate
Federalist
essays, Hamilton/Publius suggested that any proper criminal trial of the president should take place only after his impeachment and removal by Congress. The president “would be liable to be impeached, tried, and upon conviction [in an impeachment court] removed from office; and would
afterwards
be liable
to prosecution and punishment in the ordinary course of law” (emphasis added). He would “at all times” be “liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to the forfeiture of life and estate by
subsequent
prosecution in the common course of law” (emphasis added).
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Other leading Federalists expressed similar views. At the Philadelphia Convention, Gouverneur Morris declared that “a conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President
after
the trial of the impeachment” (emphasis added). During the North Carolina ratifying convention of 1788, Governor Samuel Johnston spoke even more sweepingly: “[M]en who were in very high offices could not be come at by the ordinary course of justice; but when called before this high tribunal [of impeachment] and convicted, they would be stripped of their dignity, and reduced to the rank of their fellow-citizens, and then the courts of common law might proceed against them.”
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Several other Founding statesmen and statements muddied the waters. At one point in the Pennsylvania ratifying convention, James Wilson declared that “far from being above the laws, he [the president] is amenable to them in his private character as a citizen, and in his public character by impeachment.” The structural argument for presidential immunity does not flatly contradict Wilson’s generalization, but it does qualify and clarify Wilson’s rhetoric by highlighting that impeachment should ordinarily occur first (unless a president opts to waive his immunity, which he might do precisely in order to avoid an impeachment). The subtle issues of timing and the exact relationship between impeachment and the regular criminal-law process were topics that Wilson (unlike Hamilton, Morris, and Johnston) did not come close to addressing.
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Wilson also boasted that the Constitution did not give the president even “a single privilege,” but this rhetorical exaggeration in the heat of debate has not stood the test of time. Beginning with George Washington, presidents have repeatedly and with the approval of other branches asserted various privileges—including, for instance, privileges to withhold information related to national security, secret international diplomacy, and internal executive-branch deliberations. The last of these privileges
was explicitly endorsed by a unanimous Supreme Court in the 1803 case of
Marbury v. Madison
(in a passage that has escaped the notice of most modern law professors).
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Shortly after the Constitution was ratified, a brief discussion took place in the Senate about whether a sitting president could be criminally prosecuted. Vice President John Adams and Senator Oliver Ellsworth agreed that “you could only impeach him [the president] and no other process whatever lay against him.” Otherwise, “you put it in the power of a common justice to exercise [coercive] authority over him and stop the whole machine of Government.” If, for example, the president were to commit murder in the streets, he would be promptly impeached and removed, and “when he is no longer President you can indict him.” Writing several years later, Thomas Jefferson—not usually an ally of Adams and Ellsworth—offered a similar analysis: “[W]ould the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?”
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In 1833, Justice Joseph Story published a landmark treatise on American constitutional law, and he, too, offered a structural defense of presidential immunity: “There are…incidental powers, belonging to the executive department,
which are necessarily implied
from the nature of the functions, which are confided to it. Among these, must necessarily be the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of his office.” Though Story went on to hedge his bets on the issue of presidential immunity, it would be hard to find a clearer defense of honoring not only what the Constitution says explicitly, but also what it says implicitly.
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IF A SITTING PRESIDENT
may simply brush aside a state prosecutor, may a sitting governor do so as well? After all, many state constitutions purport to vest their governors with “executive power.” Despite this surface similarity, the structural case for gubernatorial immunity is quite weak and in general has not carried the day as a matter of state constitutional law.

Governors differ from presidents along several dimensions. First, most state constitutions over the years have created prosecutorial structures strongly independent of, and designed to counterbalance the power of, state governors. Today, the great majority of states elect their attorneys general and governors independently, whereas at the federal level the attorney general answers directly to the president and has done so without interruption since the days of George Washington. Structurally, state executive and prosecution powers do not truly revolve around a single, unitary executive as they do under the federal Constitution. Second, presidents are entrusted with vast powers of diplomacy and national security on which the very existence of the nation may depend. Governors have no comparable authority. In this respect, the executive power of a state is inherently different from the executive power of the United States. Intruding upon a sitting governor is not the same as distracting or disabling a president during a potential international crisis. Third, when a state prosecutor brings suit under state law in state court against a sitting state governor, the specter of the part undermining the whole does not arise as it does when a single state tries to undo the effects of a national presidential election.
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The fact that presidents may properly enjoy certain implicit privileges that governors do not (and vice versa) reminds us that even though advocates for certain implicit presidential privileges may stress the words “executive Power”—and indeed I invoked these very words a few pages back—this phrase is not always the weight-bearing workhorse it might seem. Like other textual arguments, the appeal to the Article II clause vesting the president with “executive Power” is at times merely a handy textual label affixed to an argument whose main force derives from constitutional structure and spirit—that is, from America’s implicit Constitution.
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BUT WHAT ABOUT THE RULE OF LAW?
Does presidential immunity from state prosecution and imprisonment improperly place the president above the law? In a word, no. For this immunity is itself implicit in America’s highest law, the Constitution.

Consider, one last time, the Article I, section 6, clause guaranteeing congressional freedom of speech and debate. No one today sensibly says that this particularly absolute form of congressional free speech places
congressmen above the law. The law itself provides for this privilege and does so for sound reasons of public policy. So, too, with federal judicial immunities from state libel law, immunities that are implicit in the Constitution’s structure and history rather than explicit in the Constitution’s text. The same thing is true of any presidential immunity derived from the Constitution itself—an immunity that of course applies equally to all presidents, liberal and conservative alike. This immunity does not arise from some sort of aristocratic birth privilege. Rather, it exists for those who have been democratically selected to serve as the nation’s first officer. Here, what might at first seem like a mere private privilege really serves a larger public purpose, safeguarding the rights of the American people to choose their president, unfettered by any clever state effort to nullify that national choice.

It is worth reiterating that none of the immunities that we have considered allows unchecked lawlessness. These immunities simply create alternative legal structures of decision and judgment. Congress itself may punish congressional speakers who abuse the Article I speech privilege. Appellate tribunals may review, reverse, and chastise judges who wantonly defame others, and abusive judges may also be removed from office by an impeachment court. Likewise, presidents may be judged by America’s high court of impeachment; and once out of office they may be tried on bona fide state charges, just like the rest of us (with all the standard rights of other citizens and of other federal officers to protect them from state vendettas).
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The real question is not “Are presidents above the law?” but rather “What is the law for presidents?” Rightly understood, the law itself says that sitting national executives should be judged nationally and impartially. Though the Constitution does not say this in so many words, no single state criminal judge or jury may properly preside over an unconsenting incumbent president, just as no vice president may properly preside over his own impeachment. No party may properly judge his own case, and no part may properly judge the whole. Principles such as these make sense of the entire document.

THIS CHAPTER HAS HOPPED WITH
abandon from one specific constitutional topic to another to another. Substantively, the topics—the proper composition of impeachment courts, the scope of congressional lawmaking power and the limits on state authority to tax federal entities, the sweep of free-speech rights, and the immunity of sitting presidents from criminal prosecution—share little in common and are rarely discussed together. Some topics (such as the limited authority of states to tax federal entities) are pure issues of governmental structure; others (such as the freedom of speech) raise classic questions of individual right. Some matters (for example, impeachment) would almost never come before regular courts, while others (for instance, the scope of congressional lawmaking power) are the stuff of daily adjudication.

There is a method—
le mot juste
—in this madness. A single methodological idea unifies all the foregoing case studies and hypotheticals. On each topic, clause-bound literalism fails. Sometimes the key clause in isolation is simply indeterminate. (The phrase “executive Power” can be read narrowly or broadly on the issue of presidential immunity from prosecution.) Other times, the most salient clause, in isolation, sends a rather misleading message. (The First Amendment speaks only of “Congress,” but surely presidents, federal courts, and states must also honor citizens’ rights to express political opinions.) On occasion the Constitution’s true meaning is very nearly the opposite of what the applicable clause seems to say quite expressly. (The vice president does not properly preside over his own impeachment.) This chapter’s unifying idea is that we must read the Constitution as a whole—between the lines, so to speak.

The Constitution does not expressly command us to do this. The rule of holistic construction is itself unwritten. But it is a rule deeply faithful to the written Constitution, even as it tells readers to transcend narrow literalism.