Constitutional Cliffhangers

by Brian C. Kalt

Overview

The United States Constitution's provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president's attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

 

Product Details

ISBN-13:	9780300178012
Publisher:	Yale University Press
Publication date:	01/24/2012
Sold by:	Barnes & Noble
Format:	eBook
Pages:	224
File size:	604 KB

About the Author

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

Read an Excerpt

Constitutional Cliffhangers

A LEGAL GUIDE FOR PRESIDENTS AND THEIR ENEMIES

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By BRIAN C. KALT

Yale UNIVERSITY PRESS

Copyright © 2012 Brian C. Kalt
All rights reserved.
ISBN: 978-0-300-17801-2

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Excerpt

CHAPTER 1

Prosecuting a President

For two years, federal special prosecutor Jack Flaherty has been investigating a sordid White House scandal involving bribery, extortion, and a sprinkling of sex and drugs. Recently, Flaherty turned the investigation toward President David Hobson after concluding that Hobson had been aware of some of the crimes and covered them up.

Before, President Hobson had been cooperating fully with Flaherty's investigators. This bolstered his claims that he was uninvolved in any crimes, and kept him afloat politically. Now that Hobson is a target, though, he decides that Flaherty is an overzealous bully intoxicated with the idea of bringing down a president. He contemplates asking his attorney general to fire Flaherty but figures that the political cost would be too high—it would make Hobson look like he has something to hide and would drag down his party in the upcoming midterm elections.

Things heat up when Flaherty announces a deal with Jon Kupitsky, a target of the investigation whom President Hobson recently fired as his chief of staff. Kupitsky pleads guilty to some charges and testifies that Hobson ordered a cover-up. In exchange, Flaherty drops other charges against Kupitsky and recommends a lighter sentence for the remaining ones. Hobson forcefully denies Kupitsky's accusation. His media team highlights Kupitsky's own indisputably spectacular corruption and suggests that Kupitsky fabricated his allegations (and several documents) right after he was fired.

The House of Representatives begins an impeachment inquiry, but President Hobson's defense is believable enough, and he has kept enough public and partisan support to stall things in committee. Flaherty soldiers on, though, presenting more evidence against Hobson to the grand jury. The president's lawyers negotiate to try to delay the proceedings for two-and-a-half years, until Hobson's second term expires. But Flaherty refuses to extend any special treatment to the president. He hopes that the impeachment effort will be revived when Hobson is indicted or, failing that, when damning testimony comes out at trial. At Flaherty's urging, the grand jury indicts the president.

Hobson's political support is affected, but not much—most people had made up their minds about him already—and he resists the suggestion that he temporarily cede power to the vice president. "I'm innocent," he says, "and we cannot let one person's baseless slander determine who occupies the White House. I owe it to my fellow Americans to continue working hard for them."

Politically, Hobson still cannot fire Flaherty, but he can challenge the indictment in court. So he does, claiming that it is unconstitutional to prosecute a sitting president. His supporters take to the airwaves and enthusiastically endorse and amplify his constitutional arguments; his enemies line up behind Flaherty and Flaherty's constitutional arguments against presidential immunity. The country, which was already transfixed by the scandal, turns its attention to this legal technicality.

FOR AS LONG AS THERE HAS BEEN A PRESIDENCY, Americans have debated whether sitting presidents can be prosecuted. There are good arguments on both sides, and nobody has tried to prosecute a president yet, so reasonable minds have differed and the issue remains unresolved. But if a prosecutor ever brings criminal charges against a sitting president, the question will no longer be avoidable. This chapter discusses how such a case might arise, what the two sides would argue, and how such a controversy might be prevented.

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.

The Legal Case for Immunity: Federal Prosecution

The Constitution vests all federal executive power in one man: the president. The voters twice sent President Hobson to that office, and he is working hard for them every day. The Constitution doesn't allow a loose cannon like Jack Flaherty to take President Hobson off the job. I'm not saying that the president is above the law, I'm saying that this case has to wait until he is just David Hobson, not President Hobson. Constitutionally, only Congress can hasten that day.

—PRO-HOBSON PUNDIT

Past presidential lawyers and their opponents have already written detailed legal arguments on both sides of this issue; the only thing missing is an actual court decision that chooses a winner. This section will explore the president's legal case for temporary federal immunity. (State immunity is covered later, separately.)

The president's claims are relatively subtle. Acknowledging that the text of the Constitution says nothing explicit about his immunity, the president would argue that the structure of the Constitution protects the presidency from being impeded or obstructed. Structuralism is a common technique for interpreting constitutional provisions. Rather than just reading individual provisions in isolation, structuralism tries to fit them into the overall framework of government that the Constitution creates. Here, the president's arguments would center on two aspects of that framework: the president's unique constitutional position and Congress's preeminent role in pursuing the president.

The President Is Special

Prosecute anyone else in the government and life goes on. Prosecute the president and things—life-and-death things—don't get done.

—PRESIDENT HOBSON'S SPOKESWOMAN

The president's argument begins with the notion that he is constitutionally unique. This is crucial for his case because federal judges, cabinet secretaries, and two vice presidents have been prosecuted while in office, ahead of or instead of any impeachment. Members of Congress (who are subject to expulsion, not impeachment) have been prosecuted while in office too. If none of these officials is totally immune from prosecution while in office, why would the president be?

The answer is that the president really is uniquely indispensable. Vice presidents are legally inessential, day to day. Cabinet secretaries have narrow portfolios and a seemingly unlimited supply of deputies ready to fill in for them. The federal judiciary can constitutionally be whittled down to almost nothing, and it contains hundreds of interchangeable judges. Congress was designed to be in recess much of the time, and when it is in session, it can operate with nearly half of its 535 members absent. Moreover, judging and legislating are deliberative, even leisurely processes. In sum, prosecuting one of these other sorts of officials does not prevent the government from functioning.

By comparison, the president is head of state, head of government, and head of the executive branch, and he is just one person. The president is on call all day, every day, and must be ready to make snap decisions. If an emergency occurs during a congressional recess, the Constitution relies on a watchful president to reconvene Congress. The nature of the president's job—commanding the military, engaging in diplomacy, protecting the country, and generally taking care that the laws are executed—requires this level of vigilance. The Constitution has several detailed provisions for ensuring that if the president is gone he immediately has a substitute. But if the president is merely impeded, as he would be if he is prosecuted, then essential functions of government may be impeded too.

The president's special role requires special protection. In other contexts, courts have recognized that the Constitution can block actions that "unduly trammel" presidential authority or "interfere impermissibly" with presidential duties. Courts must consider this before they exercise jurisdiction over the president. Even if they have a good reason to drag the president into court, they still "must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the executive branch." The Supreme Court has used a similar balancing test to make presidents permanently immune from civil liability for official acts, to reject temporary immunity for sitting presidents from civil liability for private acts, and to find a limited "executive privilege" to withhold documents. Clearly, this is the test that would be used in this case. The core of the president's argument is that prosecuting a president before he leaves office is more disruptive to the president, and thus to the country, than any punitive interest can justify.

To be sure, courts have ample power to check the executive branch; they can issue injunctions against the president for official action, for instance. More to the point, as Jonathan Turley has argued, when the doctrine of separation of powers protects presidents from courts, it is in just that context: the president's official powers. Private conduct is another matter altogether. On the civil side, the Supreme Court has ruled that sitting presidents can be subjected to private lawsuits. Turley questions whether a criminal court really "would gain control" or "would interfere with" the presidency, since the prosecution "would be brought against a citizen who happens to be President, not the presidency itself."

But the president can argue that he is the only person in the government for whom the personal and the official are linked so inextricably. The Constitution vests federal legislative power in a House and Senate, and judicial power in a set of courts, but it gives executive power—the task of steering the ship of state—to just one person. As Alex Bickel put it, "In the presidency is embodied the continuity and indestructibility of the state." Even if there are dozens of people running the executive branch, their authority is supposed to flow from the president's. If the president is arrested, prosecuted, or jailed, the presidency and the executive branch of the government are too, in a way that just isn't so with an injunction or a private civil suit.

Another approach is to ask whom the Constitution empowers to disrupt the presidency. Here again the president's uniqueness comes into play. The president is the country's only nationally elected official (other than his understudy, the vice president). Members of Congress represent a district or, at most, a state. Federal judges are appointed for life and insulated from representing anybody, so that they can focus on being true to the law. Members of the cabinet and other federal officers are unelected and serve at the pleasure of the president. While these other officials surely see themselves as working for the nation as a whole, they do not have the same electoral connection as the president to all three hundred million Americans. Therefore, unlike everyone else, it is inappropriate for the president—the nation's tribune—to be displaced from his duties by just anyone.

The Constitution puts Congress (which collectively is responsible to roughly the same electorate as the president) in charge of dealing with allegedly criminal presidents, through the impeachment process. Contrast that with the president's civil liability for off-the-job conduct, for which impeachment is not available, and from which sitting presidents are not immune. Even impeachment was controversial to the Framers. When they drafted the Constitution's impeachment and removal provisions, they hotly debated whether to make sitting presidents subject to them. There was a strong presumption that presidents would serve out their terms, in other words, and it took some effort to give Congress the power to impeach and remove a criminal president. It would be odd if the Framers, who were so hesitant to allow criminal presidents to be pursued by Congress, had been willing to let them be pursued by anyone else. Similarly, it would be odd if a president who survived impeachment—the constitutionally specified removal process, designed to be hard to do—could then be displaced by a single prosecutor, judge, and jury.

Who's in Charge Here?

According to the Constitution, the president is the boss. Not "the president plus any special prosecutors who decide to disagree with him." If the president says someone shouldn't be prosecuted in federal court, then that person doesn't get prosecuted. If they get prosecuted anyway, that's unconstitutional.

—PRO-HOBSON PUNDIT

The president's opponents would note that the prosecutor, not the court, is imposing on the president here. Because the president sits atop the federal prosecutorial hierarchy, this eliminates the separation-of-powers problem; no other branch is "unduly trammeling" the presidency if the president is, in essence, prosecuting himself. Indeed, if a sitting president consents to being prosecuted by his subordinates, there is no constitutional cliffhanger to worry about. But this chapter presumes the opposite: our President Hobson is pursued by an independent counsel who, while technically subordinate to the president, is politically insulated. A president who is unwilling to fire an independent counsel may not necessarily consent to everything the counsel does in court.
(Continues...)

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Excerpted from Constitutional Cliffhangers by BRIAN C. KALT. Copyright © 2012 by Brian C. Kalt. Excerpted by permission of Yale UNIVERSITY PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Preface....................     ix     

Acknowledgments....................     xi     

Introduction....................     1     

1 Prosecuting a President....................     11     

2 The Presidential Self-Pardon Controversy....................     39     

3 Removing a "Disabled" President....................     61     

4 The Line of Succession Controversy....................     83     

5 Impeaching an Ex-President....................     106     

6 The Third-Term Controversy....................     133     

7 Getting Out of Trouble....................     158     

Notes....................     181     

Index....................     241