A Disabled Executive: The Special Counsel Investigation and Presidential Immunities

Bob Bauer
Monday, June 19, 2017, 10:10 AM

The press reports that the White House has suffered from “mass hysteria” over the Special Counsel investigation and the president’s responses to it. Our most senior government officials, including our vice president, are hiring lawyers.

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The press reports that the White House has suffered from “mass hysteria” over the Special Counsel investigation and the president’s responses to it. Our most senior government officials, including our vice president, are hiring lawyers. The Administration is facing difficulties in attracting qualified nominees to fill key positions. The daily White House press briefing is deluged with key questions that the official spokespersons decline to answer and instead refer to the president’s private lawyer. The Special Counsel investigation is now fully underway and media coverage is high-pitched and nonstop. And intense days of coverage are kicked off in the morning by shrill presidential tweets.

The investigation is beginning to consume the Trump Administration. Most notably, the president seems to have little capacity for managing these pressures. As suggested by his inability to stay off Twitter, he is evidently not one to “compartmentalize” sufficiently to push the inquiry to one side while carrying on regular business. Special Counsel Robert Mueller is barely into his task and so one might ask: what happens when the investigation begins to accelerate and, worse, if indictment becomes a possibility?

It is at this point that the long-standing constitutional question, so far unaddressed by any court, is again raised: do the strains on a presidency under investigation require the conclusion that the president cannot be indicted while in office? As recently as 2000, the Office of Legal Counsel affirmed the position it took in 1973 with an emphatic “yes.” And does this conclusion lead inexorably to another one—that this claimed presidential immunity from indictment or prosecution extends to investigations as well?

OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”

The 2000 opinion landed hard on conclusion that “given the potentially momentous political consequences for the Nation at stake, there is a fundamental, structural incompatibility between the ordinary application of the criminal process and the Office of the President." Of course, delay in either indictment or trial until a term ended would be costly to the administration of justice: but “while significant, [they] are not controlling. In the case of clear and serious criminal wrongdoing, Congress can act to impeach, and this outcome is more consistent with democratic values than “shifting an awesome power to unelected persons lacking an explicit constitutional role vis-à-vis the President.” The opinion also rejected the option of allowing for indictment but deferring trial, embracing the 1973’s judgment that this half-measure is just a gamble that the president could somehow still govern under indictment. (It characterizes this gamble, in what in the current context is a striking double entendre, as “Russian roulette.”)

This analysis was always open to serious objections, but the shocks to the system from Mr. Mueller's investigation makes its weakness all the more apparent. From the beginning it was unclear how the OLC’s reasoning distinguished between indictments and prosecutions, on the one hand, and investigations, on the other. The institution of a serious investigation into presidential wrongdoing has been sufficient to lead to” mass hysteria” in the West Wing. It has clearly and heavily burdened the president—one need only read his tweets—and disrupted normal business and the recruitment of personnel for key positions. So, while few doubt that the president is subject to investigation, it is hard to see how these disruptions can be easily distinguished from those associated with indictment. The difference is one of degree, not of kind, and as the Nixon experience established, those differences are indeed fine.

And as the current investigation continues—interviews are conducted, documents requested, witnesses hire lawyers, and inevitably leaks issue from sundry quarters—these distractions will worsen. The more serious and far-reaching the investigation becomes, the greater will be disruption. By the time of his resignation, President Nixon had not been indicted, but his capacity for governance had been all but extinguished.

It is possible, of course, to believe that for just these reasons OLC did not go far enough, and that it should have clearly extended temporary immunity to the investigative stage. The drafters in 1973 and 2000 declined to take this next step. Doubtless they were constrained by a powerful democratic norm, reflected in the Supreme Court’s pointed rejection in United States v. Nixon of any suggestion that the president, as the head of a unitary executive branch, is somehow “above the law.” True, the Court stated that “the Framers of the Constitution sought to provide a comprehensive system” of separated powers, but “the separate powers were not intended to operate with absolute independence.” The president would have to yield some of his or her authority within this executive domain to the impartial administration of the criminal laws.

The OLC in 1973 anticipated these profound concerns and Nixon was decided a year later. Another three decades afterward, by the time of the most recent OLC pass on the question, the norm had only gained in force. The result was a president at least required to submit to investigation, even if he or she could not in the end be indicted, stand trial, and be convicted. That is the line that OLC drew and has held in assuring that the president is not “above the law.”

However, the 2000 OLC opinion did not effectively defend that line. It tried gamely, but more or less in passing, to show that investigations can be managed without undue disruption. In a footnote, it noted that a grand jury could still “collect” and “preserve” evidence, available for use once the president has left office. The picture it presented is that of the grand jury working quietly in the background. More realistic is what we had in the Nixon era and may be seeing develop today: a full-fledged investigation from within the executive branch, by special counsel dedicated to this purpose. It is not a question of a grand jury collecting and preserving but of the Special Counsel investigating. The process is active, not passive.

It is also telling that the used something like this active/passive distinction to downplay the potentially disruptive impact of an investigation. An investigation in a lower key may be less of a threat to governance, but it may also suggest less of a priority for the criminal justice system. A major inquiry at full boil is most often an indication of the seriousness of the potential charges, and yet it is here—where the public interest in a presidency accountable to law is keenest—that the OLC’s concern with disruption is most obviously triggered. By a strange twist of constitutional logic, the president under investigation for the most serious wrongdoing would then have the most compelling claim to immunity.

On the other side, the opinion did not engage seriously with the question of how temporary immunity from indictment or prosecution can be reconciled with the due administration of justice. For example, it included the president’s exposure to the stigma of a criminal charge among the “dramatically destabilizing effects” of an indictment. Of course, unresolved questions of criminal misconduct also cast shadows on a presidency, as the Nixon saga showed. The opinion did not explain how the president’s credibility is enhanced by charges left hanging and defended only by a claim of immunity. It might be just as persuasively argued that the president who engages with the criminal justice process does more honor to the office and invites closer consideration of the merits of his self-defense. “I did no wrong, and here is why” has a more presidential ring and better serves the rule of law than “You can’t get me.”

The OLC opinion acknowledged that failure to subject the president to the normal criminal justice process on even a temporary basis might fatally compromise the prospects for prosecution after he leaves office. Over the course of the time, memories fade or fail, evidence is degraded, and witnesses pass away. The OLC opinion further conceded that “the consequences of any prejudicial loss of evidence that does occur in the criminal context are more grave [than even in the civil litigation], given the presumptively greater stakes for both for the United States and the defendant in criminal litigation.” Yet it discounted these costs when weighing, in the balance, other interests. Mostly the opinion fell back on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.

But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.

It is true that the president could use his executive authority to thwart an investigation. He can fire prosecutors one after the other until he arrives at a pliant replacement. His management of the “unitary executive” gives him at least that authority. It is also highly probable that, whatever its view of the core offense under investigation, Congress would intervene via the impeachment process to restoring the “rule of law.” Charges and evidence of obstruction are what brought about Nixon’s fatal loss of Republican support in the Congress. So far, too, Mr. Trump’s Republican supporters—including his own attorney general—have signaled to him that he should not dismiss Special Counsel Mueller. It is in constitutional theory only that a president may order an end to an investigation directed against him. In practice, he will fail.

If a president is not, then, immune from investigation or indictment, the “dramatically destabilizing effects” on government may be addressed in one of three ways. The president could resign. Congress could move to impeachment. Also available is the 25th Amendment, which permits a president to temporarily vacate the office while fighting the indictment and standing trial—perhaps, in the thick of an investigation, while fending off indictment.

The 2000 opinion was equivocal in its treatment of the 25th Amendment, particularly as an answer to the possible incarceration of a president following conviction. But it also conceded that “the amendment's terms ‘unable’ and ‘inability’ were not . . . narrowly defined, apparently out of a recognition that situations of inability might take various forms not neatly falling into categories of physical or mental illness.” A president who faced what the OLC termed the “substantial preparation” required for a criminal defense, and the “dramatically destabilizing effects” of criminal process on his capacity to govern, would have a clear choice under the 25th Amendment. The same choice is open to the vice president with the support of the Cabinet if they reach this conclusion but the president resists.

In a case where, as of now, neither impeachment nor resignation is probable, the 25th Amendment supplies more of an answer than OLC would credit to the problem of an incapacitated presidency. It is also more convincing than temporary immunity from indictment or prosecution that is grounded in dubious reasoning about the implications of the “constitutional structure” and that, if taken to its logical conclusion, would also insulate a president from investigation into serious criminal wrongdoing.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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