Testimony

Thank You, Chairman Ashcroft, for Inviting Me to Testify Today on the Important Subject of Whether a Sitting President Enjoys Immunity from Indictment for Criminal Offenses.

I Will Not Attempt to Repeat My Written Testimony. Instead, with Your Permission, I Will Underscore a Few of the Key Points That the Senate Should Consider in Answering this Question.

Before I Begin, I Would like to State That the Comments I Present Today Are Not Only My Own Views, but Are Also the Views of My Partner, Theodore Olson. Mr. Olson Was Assistant Attorney General in Charge of the Office of Legal Counsel in the Justice Department During the Reagan Administration; I Served as Principal Deputy in That Office During the Bush Administration.

As You Know, the Office of Legal Counsel Is Often Charged with Advising the Executive Branch on the Most Difficult of Constitutional Issues. Both Mr. Olson and I Come to the Issue Before the Committee Today with the Utmost Respect for the Role of the President as Chief Executive under the Constitution.

Further, My Views on Today's Topic Are Independent of the Current Controversy Before the Nation. None of My Remarks Should Be Taken as Referring Directly to President Clinton, or to Any Evidence That May Have Been Developed by Judge Starr.

Let Me Make Two Preliminary Points.

First, it Is Beyond Dispute That at a Minimum, All Officials Subject to Impeachment, Other than the President, Are Also Subject to Indictment Before Impeachment. This Has Been Clear from the Earliest Days of the Republic, When Vice-president Burr Was Indicted While in Office on State Charges for the Murder of Alexander Hamilton.

Second, There Can Be No Doubt That the President Is Subject to Criminal Process Short of Indictment. That Is the Rule of United States V. Nixon, in Which the Supreme Court Ruled That the President Had to Comply with a Subpoena in a Criminal Case. Indeed, in Clinton V. Jones, the Supreme Court Held That the President Was Subject to Civil Process and Could Be a Defendant in a Civil Action.

These Two Points Demonstrate What a Strange Doctrine Presidential Immunity from Indictment Would Be, If it Existed. It Would Be an Immunity Enjoyed Only by the President, and it Would Be a Partial Immunity That Extended Neither to Civil Suits, Nor to All Procedures in Criminal Matters Short of Indictment.

The Proponents of Presidential Immunity from Indictment While in Office Thus Have a Heavy Burden to Carry. In My View, They Have Failed to Demonstrate the Source of Such an Immunity, or to Articulate a Defensible and Consistent Rationale for the Immunity.

Turning First to the Constitution's Text, No Clause Directly Speaks to the Timing or Sequence of Indictment Versus Impeachment. Article I, Section 3, Clause 7, Is Often Cited for the Proposition That Impeachment must Precede Indictment. The Clause, However, by its Terms Applies to All Cases of Impeachment, Yet We Know That at Least Some Officers Subject to Impeachment May Be Indicted While in Office -- Again, Vice-president Burr Is the Prime Example. Thus, this Clause Cannot Be Invoked to Support Presidential Immunity, Because Such a Reading Is Contradicted by the Undeniable Historical Practice.

This Constitutional Silence Militates Strongly Against Any Such Presidential Immunity. The Silence Is Particularly Telling Because the Framers Did Create a Limited Immunity for Legislators, in the Speech and Debate Clause. This Demonstrates That the Framers Knew How to Create an Immunity When They Chose.

Moreover, the Constitution's Failure to Acknowledge Any Presidential Immunity Places the Proponents of Immunity in the Untenable Position of Arguing That the President Somehow Enjoys an Implicit and Unlimited Immunity from Criminal Indictment, Far Broader than the Express Text of the Constitution Grants to Members of Congress.

Thus, the Constitution Does Not Provide a Textual Basis for Presidential Immunity.

The Historical Materials Bearing on this Issue Are Unclear, but What Evidence There Is Points to the Conclusion That Presidents Do Not Enjoy Immunity from Indictment Before Impeachment. Several Individual Quotations from the Historical Record Frequently Invoked to Support Presidential Immunity Have Already Been Rejected by the Supreme Court, in Clinton V. Jones, as Justice Breyer Noted in His Concurrence. In Any Event, However One Balances the Historical Evidence, it Is Undeniable That There Is Scant Support in the Historical Record for So Strange a Doctrine as Presidential Immunity from Criminal Indictment.

Finally, There Is the Argument Based on Constitutional Structure. This Argument Provides That the President Is "Indispensable Man" in the Constitutional System, as the Sole Head of a Unitary Executive Branch, and Thus His Potential Indictment Threatens the Functioning of an Entire Branch -- a Risk Not Present When a Judge or Vice-president Is Indicted.

I Agree with the Underpinnings of this Argument -- the President Does Have a Unique Role under the Constitution, and Is the Head of a Unitary Executive Branch.

But the Constitution Is Concerned with the Office of the President, Not with an Individual Who May Happen to Occupy That Office. It Is Important That the Executive Power Be Exercised Forcefully -- but Defending That Principle Does Not Require the Adoption of an Immunity from Indictment for Any Individual.

Indeed the Constitution Itself -- Both as Originally Adopted and as Subsequently Amended -- Undercuts the "Indispensable Man" Theory by Contemplating That the President May Be Unable to Fulfill His Constitutional Duties, for Reasons Other than Impeachment. Thus, for Example, the Original Constitution Provided in Article Ii That "In Case of the Removal of the President from Office, or of His Death, Resignation, or Inability to Discharge the Powers and Duties of the Said Office," the Vice-president Shall Assume His Duties. That Provision Has Now Been Amended by the Twenty-fifth Amendment, So That There Is a Mechanism for the Temporary Replacement of the President under Certain Circumstances.

Should an Incumbent President Be Indicted, Our Constitutional System Provides for Several Possible Responses. First, the President May Choose to Continue in Office While Fighting the Indictment; or He May Hand over His Authority Temporarily to the Vice-president, under the Twenty-fifth Amendment; or the House May Decide to Initiate Impeachment Proceedings. Under Any Scenario, the Executive Authority of the United States Would Continue to Be Exercised and Our Constitutional Order Preserved.

To Sum Up: Presidential Immunity from Indictment Before Impeachment Is a Doctrine That Is Unsupported by the Constitutional Text, Is Contradicted by the History of Indictments of Public Officers in this Country, and Is Undercut by Several Recent Supreme Court Decisions -- among Them United States V. Nixon, Morrison V. Olson, and Clinton V. Jones.

The Congress Thus May Conclude That There Is No Basis for Discovering a Previously Unknown Presidential Immunity, or for Fabricating One out of Whole Cloth.