Prosecution of the President of the United States : The Constitution, Executive Power, and the Rule of Law

"This book provides a detailed look at the constitutional, historical, and political arguments concerning presidential immunity from prosecution, as well as the opinions of the Office of Legal Counsel that provided the justification for the decision not to prosecute President Trump. Focusing on those opinions, the book examines the constitutional basis of presidential immunity, both textual and historical, as reflected in the deliberations of the 1787 Convention and the ratification debates. The opinions are viewed in the context of the criminal investigations of Presidents Nixon and Clinton that gave rise to those opinions, as well as the pronouncements of the Supreme Court concerning their claims, and those of President Trump to immunity from judicial inquiry. Lastly, the book analyzes presidential immunity in light of the separation of powers, the availability of impeachment, and the discordance between presidential immunity and the rule of law"-- Provided by the publisher Acknowledgments 7 Also by the Author 8 Contents 9 1 Introduction 13 Bibliography 17 Part I 19 2 The Founding Era 20 The Constitutional Convention of 1787 21 The Ratification Debates 22 The Federalists and the Anti-Federalists 22 The Debates in the State Conventions 23 Commentary Following Ratification 26 The Prosecution of Vice President Aaron Burr for Murder 28 Bibliography 33 3 The Nixon Era and the 1973 Office of Legal Counsel Memorandum 35 The 1973 Memorandum of the Office of Legal Counsel 36 Whether Impeachment and Removal Must Precede Indictment 36 Whether the President is Amenable to Criminal Prosecution While in Office 38 The Prosecution of Vice President Spiro T. Agnew 41 The Bork Memorandum 41 The Berger Critique 44 The White House Tapes Litigation 46 The Proceedings in the District Court 47 The Proceedings in the United States Court of Appeals 49 The Saturday Night Massacre 50 The United States v. Mitchell et al. 50 The Second Litigation Regarding the Recorded Presidential Communications 54 The Litigation in the Supreme Court 55 The Aftermath 58 Bibliography 74 4 The Clinton Era 77 Presidential Immunity from Civil Liability 77 The Criminal Investigation of President William Jefferson Clinton 78 Jones v. Clinton 79 The Starr Investigation 81 The Rotunda Opinion 83 Impeachment Not Prosecution 87 Aftermath 89 Bibliography 94 5 The Senate Judiciary Committee Hearing on Presidential Immunity 97 Bibliography 106 6 The Second Opinion of the Office of Legal Counsel October 16, 2000 107 The 2000 Office of Legal Counsel Memorandum 107 The Effect of the Decisions of the Supreme Court After 1973 108 Balancing the Burdens 111 The Legitimate Government Interests 114 The Effectiveness of the OLC Memoranda 116 Acceptance of the OLC Position by the Courts 117 The Commentary 120 Bibliography 133 7 Donald J. Trump v. Cyrus R. Vance 135 The United States District Court for the Southern District of New York 135 The United States Court of Appeals for the Second Circuit 138 The United States Supreme Court 139 Bibliography 143 Part II 144 8 The Separation of Powers 145 The Separation of Powers Under the Constitution 145 The 1973 OLC Memorandum 148 James Madison 148 Chief Justice Marshall and United States v. Burr 149 Kendall v. United States ex rel. Stokes 155 Attorney General Stanberry’s Argument in Mississippi v. Johnson 156 The June 25, 1973 OLC Memorandum Concerning Presidential Amenability to Subpoenas 157 The Supreme Court 158 United States v. Nixon 158 Clinton v. Jones 159 The 2000 OLC Memorandum 161 The Commentary 163 Bibliography 179 9 Impeachment: Sequentiality 181 The Sequentialist Theory 181 The Criticism 183 Double Jeopardy 183 Unofficial Acts 185 Bibliography 196 10 Impeachment: Criminality 198 Impeachment Is Not a Criminal Proceeding 198 Impeachment in the English Parliament 200 Impeachment as a Criminal Process 200 Impeachment as a Restraint on the Abuse of Office 201 The Last Parliamentary Impeachment: Warren Hastings in 1787 202 High Crimes and Misdemeanors: Official Misconduct 203 Impeachment in Colonial America 204 Impeachment as a Challenge to Royal Authority 205 The Impeachment of Chief Judge Peter Oliver 206 The Federal Convention of 1787 209 Impeachable Offenses Are Not (Necessarily) Crimes 212 The Federal Convention of 1787 213 The Ratification Debates 213 The Commentary 215 The Limitations of Impeachment 220 Impeachment Is a Blunt Instrument 221 Bibliography 239 11 The Rule of Law 243 Bibliography 253 Index 256 "Lowell Brown has written a compendious, even-handed, exhaustively-researched exploration of the arguments for and against the proposition that an American President can be criminally prosecuted while in office. No scholar, advocate, or citizen concerned with the scope of presidential power or the real danger of an emergent culture of executive branch impunity should be without this book." --Frank O. Bowman, Professor of Law at the University of Missouri, USA, and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (2019) This book provides an in depth look at the constitutional, historical, and political arguments concerning presidential immunity from prosecution, as well as the opinions of the Office of Legal Counsel that provided the justification for the decision not to prosecute President Trump. Focusing on those opinions, the book examines the constitutional basis of presidential immunity, both textual and historical, as reflected in the deliberations of the 1787 Convention and the ratification debates. The opinions are viewed in the context of the criminal investigations of Presidents Nixon and Clinton that gave rise to those opinions, as well as the pronouncements of the Supreme Court concerning their claims, and those of President Trump to immunity from judicial inquiry. Lastly, the book analyses presidential immunity in light of the separation of powers, the availability of impeachment, and the discordance between presidential immunity and the rule of law. H. Lowell Brown is a practicing attorney specializing in white collar criminal defense and compliance, and has taught courses in white collar crime, international criminal law and procedure and jurisprudence at the University of Maine Law School, USA. He has written numerous law journal articles on issues of white collar crime and ethics, and is the author of five books, including The American Constitutional Tradition (2017) and High Crimes and Misdemeanors in Presidential Impeachment (2010)