b'A Sntttimig P r e sid en ts Amemalbility to Imdidtmeimt and Crimimal\n\nPiroseOTttiom\nThe in dictm ent o r cn m in al prosecution o f a sitting P resident would unconstitutionally underm ine the\ncap acity o f the executive branch to p erform its constitutionally assigned functions\n\nOctober 16, 2000\nM\n\nem orandum\n\nO p in io n\n\nfor t h e\n\nA tto rn ey G eneral\n\nIn 1973, the Department concluded that the indictment or criminal prosecution\nof a sitting President would impermissibly undermine the capacity of the executive\nbranch to perform its constitutionally assigned functions. We have been asked\nto summarize and review the analysis provided in support of that conclusion, and\nto consider whether any subsequent developments in the law lead us today to\nreconsider and modify or disavow that determination.1 We believe that the conclu\xc2\xad\nsion reached by the Department in 1973 still represents the best interpretation\nof the Constitution.\nThe Department\xe2\x80\x99s consideration of this issue in 1973 arose in two distinct legal\ncontexts. First, the Office of Legal Counsel ( \xe2\x80\x9c OLC\xe2\x80\x9d ) prepared a comprehensive\nmemorandum in the fall of 1973 that analyzed whether all federal civil officers\nare immune from indictment or criminal prosecution while in office, and, if not,\nwhether the President and Vice President in particular are immune from indictment\nor criminal prosecution while in office. See Memorandum from Robert G. Dixon,\nJr., Assistant Attorney General, Office of Legal Counsel, Re: A m en ability o f the\nP residen t, Vice P resid en t and o th er C ivil O fficers to F ederal C rim inal Prosecution\nw h ile in O ffice (Sept. 24, 1973) ( \xe2\x80\x9c OLC M emo\xe2\x80\x9d ). The OLC memorandum con\xc2\xad\n\ncluded that all federal civil officers except the President are subject to indictment\nand criminal prosecution while still in office; the President is uniquely immune\nfrom such process. Second, the Department addressed the question later that same\nyear in connection with the grand jury investigation of then-Vice President Spiro\nAgnew. In response to a motion by the Vice President to enjoin grand jury pro\xc2\xad\nceedings against him, then-Solicitor General Robert Bork filed a brief arguing\nthat, consistent with the Constitution, the Vice President could be subject to indict\xc2\xad\nment and criminal prosecution. S ee Memorandum for the United States Con\xc2\xad\ncerning the Vice President\xe2\x80\x99s Claim of Constitutional Immunity (filed Oct. 5,\n1973), In re P ro ceed in g s o f th e G rand Jury Im paneled D ecem ber 5, 1972:\n1 Since that time, the Department has touched on this and related questions in the course of resolving other ques\xc2\xad\ntions, see, e g . The President \xe2\x80\x94 Interpretation o f 18 U.S C. \xc2\xa7603 as Applicable to Activities in the White H ouse,\n3 Op. O.L.C. 31, 32 (1979); B n ef for the United States as Amicus Curiae in Support of Petitioner at 15 n 8, Clinton\nv. Jones, 520 U.S. 681 (1997) (No. 95-1853), but it has not undertaken a comprehensive reexamination of the\nmatter. W e note that various lawyers and legal scholars have recently espoused a range of views of the matter\nSee, e .g , Impeachment o r Indictm ent\xe2\x80\xa2 Is a Sitting President Subject to the Compulsory Criminal Process\' Hearings\nBefore the Subcomm. on the Constitution, Federalism, and Property Rights o f the Senate Comm, on the Judiciary,\n105th Cong (1998)\n\n222\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nA pplication o f Spiro T. Agnew, Vice P residen t o f the U nited States (D. Md. 1973)\n\n(No. 73-965) (\xe2\x80\x9c SG B rie f\xe2\x80\x99). In so arguing, however, Solicitor General Bork was\ncareful to explain that the President, unlike the Vice President, could not constitu\xc2\xad\ntionally be subject to such criminal process while in office.\nIn this memorandum, we conclude that the determinations made by the Depart\xc2\xad\nment in 1973, both in the OLC memorandum and in the Solicitor General\xe2\x80\x99s brief,\nremain sound and that subsequent developments in the law validate both the\nanalytical framework applied and the conclusions reached at that time. In Part\nI, we describe in some detail the Department\xe2\x80\x99s 1973 analysis and conclusions.\nIn Part n , we examine more recent Supreme Court case law and conclude that\nit comports with the Department\xe2\x80\x99s 1973 conclusions.2\nI.\n\nA.\nThe 1973 OLC memorandum comprehensively reviewed various arguments both\nfor and against the recognition of a sitting President\xe2\x80\x99s immunity from indictment\nand criminal prosecution. What follows is a synopsis of the memorandum\xe2\x80\x99s anal\xc2\xad\nysis leading to its conclusion that the indictment or criminal prosecution of a sit\xc2\xad\nting President would be unconstitutional because it would impermissibly interfere\nwith the President\xe2\x80\x99s ability to carry out his constitutionally assigned functions\nand thus would be inconsistent with the constitutional structure.\n1.\nThe OLC memorandum began by considering whether the plain terms of the\nImpeachment Judgment Clause prohibit the institution of criminal proceedings\nagainst any officer subject to that Clause prior to that officer\xe2\x80\x99s conviction upon\nimpeachment. OLC Memo at 2. The memorandum concluded that the plain terms\nof the Clause do not impose such a general bar to indictment or criminal trial\nprior to impeachment and therefore do not, by themselves, preclude the criminal\nprosecution of a sitting President. Id. at 7.3\n2 Implicit in the Department\xe2\x80\x99s constitutional analysis o f this question in 1973 was the assumption that the President\nwould oppose an attempt to subject him to indictment or prosecution. We proceed on the same assumption today\nand therefore do not inquire whether it would be constitutional to indict or try the President with his consent.\nThe Department\xe2\x80\x99s previous analysis also focused exclusively on federal rather than state prosecution of a sitting\nPresident. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns\nthat may be implicated by state cnminal prosecution o f a sitting President. See Clinton v Jones, 520 U S 681,\n691 (1997) (noting that a state cnminal prosecution o f a sitting President would raise \xe2\x80\x9c federalism and comity\xe2\x80\x9d\nconcerns rather than separation o f powers concerns)\n3 In a memorandum prepared earlier this year, we concluded that neither the Impeachment Judgment Clause nor\nany other provision o f the Constitution precludes the prosecution o f a former President who, while still in office,\nwas impeached by the House o f Representatives but acquitted by the Senate See Whether a Former President May\nContinued\n\n223\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nThe Impeachment Judgment Clause provides:\nJudgment in Cases of Impeachment shall not extend further than\nto removal from Office, and disqualification to hold and enjoy any\nOffice of honor, Trust o r Profit under the United States: but the\nParty convicted shall nevertheless be liable and subject to Indict\xc2\xad\nment, Trial, Judgment and Punishment, according to Law.\nU.S. Const, art. I, \xc2\xa7 3, cl. 7. The textual argument that the criminal prosecution\no f a person subject to removal by impeachment may not precede conviction by\nthe Senate arises from the reference to the \xe2\x80\x9c Party convicted\xe2\x80\x9d being liable for\n\xe2\x80\x9c Indictment, Trial, Judgment and Punishment.\xe2\x80\x9d This textual argument draws sup\xc2\xad\nport from Alexander Hamilton\xe2\x80\x99s discussion of this Clause in The F ederalist Nos.\n65, 69, and 77, in which he explained that an offender would still be liable to\ncriminal prosecution in the ordinary course of the law after removal by way of\nimpeachment. OLC Memo at 2.4\nThe OLC memorandum explained, however, that the use of the term \xe2\x80\x98\xe2\x80\x98neverthe\xc2\xad\nless\xe2\x80\x9d cast doubt on the argument that the Impeachment Judgment Clause con\xc2\xad\nstitutes a bar to the prosecution o f a person subject to impeachment prior to the\ntermination of impeachment proceedings. Id. at 3. \xe2\x80\x9c Nevertheless\xe2\x80\x9d indicates that\nthe Framers intended the Clause to signify only that prior conviction in the Senate\nwould not constitute a bar to subsequent prosecution, not that prosecution of a\nperson subject to impeachment could occur only after conviction in the Senate.\nId. \xe2\x80\x9c The purpose of this clause thus is to permit criminal prosecution in spite\nof the prior adjudication by the Senate, i.e., to forestall a double jeopardy argu\xc2\xad\nm ent.\xe2\x80\x9d Id .5\nBe Indicted and Tried f o r the Same Offenses f o r Which He Was Impeached by the House and Acquitted by the\nSenate, 24 O p O L.C. I l l (2000)\n4 In The Federalist No 69, Hamilton explained:\nThe President o f the Umted States would be liable to be impeached, tried, and upon conviction . .\nremoved from office, and would afterwards be liable to prosecution and punishment in the ordinary course\nof law. The person o f the King o f Great Britain is sacred and inviolable: there is no constitutional tribunal\nto which he is amenable, no punishment to which he can be subjected without involving the cnsis of\na national revolution\nThe Federalist No. 69, at 416 (Alexander Hamilton) (Clinton Rossiter e d , 1961) (emphasis added). Similarly, in\nThe Federalist No 65, he stated\nthe punishment which may be the consequence o f conviction upon impeachment is not to terminate the\nchastisement o f the offender. After having been sentenced to a perpetual ostracism from the esteem and\nconfidence and honors and emoluments of h is country, he will still be liable to prosecution and punishment\nm the ordinary course o f law.\nId. at 3 98-99 (emphasis added). Moreover, in The Federalist No. 77, he maintained that the President is \xe2\x80\x9c at all\ntimes liable to impeachment, trial, dismission from office . . . and to the forfeiture of life and estate by subsequent\nprosecution in the common course o f law \xe2\x80\x9d Id. at 464 (emphasis added) In addition, Gouvemeur Morris stated\nat the Convention that \xe2\x80\x9c [a] conclusive reason fo r making the Senate instead of the Supreme Court the Judge of\nimpeachments, was that the latter was to try th e President after the trial of the impeachment.\xe2\x80\x9d 2 Records o f the\nFederal Convention o f 1787, at 500 (Max Farrand ed., 1974).\n5 In our recent memorandum exploring in detail the meaning o f the Impeachment Judgment Clause, we concluded\nthat the relationship between this clause and double jeopardy principles is somewhat more complicated than the\n1973 OLC M emo suggests See Whether a Form er President May Be Indicted and Tried fo r the Same Offenses\n\n224\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nThe OLC memorandum further explained that if the text of the Impeachment\nJudgment Clause barred the criminal prosecution of a sitting President, then the\nsame text would necessarily bar the prosecution of all other \xe2\x80\x9c civil officers\xe2\x80\x9d\nduring their tenure in office. The constitutional practice since the Founding, how\xc2\xad\never, has been to prosecute and even imprison civil officers other than the Presi\xc2\xad\ndent while they were still in office and prior to their impeachment. See, e.g.,\nid. at 4\xe2\x80\x947 (cataloguing cases). In addition, the conclusion that the Impeachment\nJudgment Clause constituted a textual bar to the prosecution of a civil officer\nprior to the termination of impeachment proceedings \xe2\x80\x9c would create serious prac\xc2\xad\ntical difficulties in the administration of the criminal law.\xe2\x80\x9d Id. at 7. Under such\nan interpretation, a prosecution of a government official could not proceed until\na court had resolved a variety of complicated threshold constitutional questions:\nThese include, first, whether the suspect is or was an officer of\nthe United States within the meaning of Article II, section 4 of\nthe Constitution, and second, whether the offense is one for which\nhe could be impeached. Third, there would arise troublesome cor\xc2\xad\nollary issues and questions in the field of conspiracies and with\nrespect to the limitations of criminal proceedings.\nId. The memorandum concluded that \xe2\x80\x9c [a]n interpretation of the Constitution\n\nwhich injects such complications into criminal proceedings is not likely to be a\ncorrect one.\xe2\x80\x9d Id. As a result, the Impeachment Judgment Clause could not itself\nbe said to be the basis for a presidential immunity from indictment or criminal\ntrial.\n\n2.\nThe OLC memorandum next considered \xe2\x80\x9c whether an immunity of the President\nfrom criminal proceedings can be justified on other grounds, in particular the\nconsideration that the President\xe2\x80\x99s subjection to the jurisdiction of the courts would\nbe inconsistent with his position as head of the Executive branch.\xe2\x80\x9d OLC Memo\nat 18. In examining this question, the memorandum first considered the contention\nthat the express, limited immunity conferred upon members of Congress by the\nArrest and Speech or Debate Clauses of Article I, Section 6 of the Constitution\nnecessarily precludes the conclusion that the President enjoys a broader, implicit\nimmunity from criminal process.6 One might contend that the Constitution\xe2\x80\x99s grant\nfo r Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O L C at 128-30. Nothing in\nour more recent analysis, however, calls into question the 1973 OLC M emo\xe2\x80\x99s conclusions.\n6 Article I, Section 6, Clause 1 provides\nThe Senators and Representatives shall . in all Cases, except Treason, Felony and Breach of the Peace,\nbe privileged from A rrest during their Attendance at the Session o f their respective Houses, and in going\nContinued\n\n225\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\nof a limited immunity to members of Congress reflects a determination that federal\nofficials enjoy no immunity absent a specific textual grant.\nThe OLC memorandum determined that this contention was not \xe2\x80\x9c necessarily\nconclusive.\xe2\x80\x9d OLC Memo at 18. \xe2\x80\x9c [I]t could be said with equal validity that Article\nI, sec. 6, clause 1 does not confer any immunity upon the members of Congress,\nbut rather limits the complete immunity from judicial proceedings which they\notherwise would enjoy as members of a branch co-equal with the judiciary.\xe2\x80\x9d Id.\nThus, in the absence of a specific textual provision withdrawing it, the President\nwould enjoy absolute immunity. In addition, the textual silence regarding the exist\xc2\xad\nence of a presidential immunity from criminal proceedings may merely reflect\nthe fact that it \xe2\x80\x9c may have been too well accepted to need constitutional mention\n(by analogy to the English Crown), and that the innovative provision was the\nspecified process of impeachment extending even to the President.\xe2\x80\x9d Id. at 19.\nFinally, the historical evidence bearing on whether or not an implicit presidential\nimmunity from judicial process was thought to exist at the time of the Founding\nwas ultimately \xe2\x80\x9c not conclusive.\xe2\x80\x9d Id. at 20.\n3.\nThe OLC memorandum next proceeded to consider whether an immunity from\nindictment or criminal prosecution was implicit in the doctrine of separation of\npowers as it then stood. OLC Memo at 20. After reviewing judicial precedents\nand an earlier OLC opinion,7 id. at 21-24, the OLC memorandum concluded that\n\xe2\x80\x9c under our constitutional plan it cannot be said either that the courts have the\nsame jurisdiction over the President as if he were an ordinary citizen or that the\nPresident is absolutely immune from the jurisdiction of the courts in regard to\nany kind of claim.\xe2\x80\x9d Id. at 24. As a consequence, \xe2\x80\x9c [t]he proper approach is to\nfind the proper balance between the normal functions of the courts and the special\nresponsibilities and functions of the Presidency.\xe2\x80\x9d Id.\nThe OLC memorandum separated into two parts the determination of the proper\nconstitutional balance with regard to the indictment or criminal prosecution of\na sitting President. First, the memorandum discussed whether any of the consider\xc2\xad\nations that had lead to the rejection of the contention that impeachment must pre\xc2\xad\ncede criminal proceedings for ordinary civil officers applied differently with\nrespect to the President in light o f his position as the sole head of an entire branch\nof government. Id.8 Second, the memorandum considered \xe2\x80\x9c whether criminal pro\xc2\xad\nto and returning from the same; and for any Speech or Debate in either House, they shall not be questioned\nin any other Place\n7 See M emorandum from Robert G Dixon, Jr , Assistant Attorney General, Office of Legal Counsel, Re Presi\xc2\xad\ndential Am enability to Judicial Subpoenas (June 25, 1973).\n8 W e note that the statements quoted in footnote 4 above from The Federalist Papers and Gouvemeur Moms,\nwhich provide that the President may be prosecuted after having been tried by the Senate, are consistent with the\nconclusion that the President may enjoy an immunity from cnm inal prosecution while in office that other civil\nofficers do not The quoted statements are not dispositive o f this question, however, as the OLC memorandum\n\n226\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nceedings and execution of potential sentences would improperly interfere with the\nPresident\xe2\x80\x99s constitutional duties and be inconsistent with his status.\xe2\x80\x9d Id.\na.\nThe OLC memorandum\xe2\x80\x99s analysis of the first of these questions began with\na consideration of whether the nature of the defendant\xe2\x80\x99s high office would render\nsuch a trial \xe2\x80\x9c too political for the judicial process.\xe2\x80\x9d OLC Memo at 24. The memo\xc2\xad\nrandum concluded that the argument was, as a general matter, unpersuasive.\nNothing about the criminal offenses for which a sitting President would be tried\nwould appear to render the criminal proceedings \xe2\x80\x9c too political.\xe2\x80\x9d The only kind\nof offenses that could lead to criminal proceedings against the President would\nbe statutory offenses, and \xe2\x80\x9c their very inclusion in the Penal Code is an indication\nof a congressional determination that they can be adjudicated by a judge and\njury.\xe2\x80\x9d Id. In addition, there would not appear to be any \xe2\x80\x9c weighty reason to dif\xc2\xad\nferentiate between the President and other officeholders\xe2\x80\x9d in regard to the \xe2\x80\x9c polit\xc2\xad\nical\xe2\x80\x9d nature of such a proceeding \xe2\x80\x9c unless special separation of powers based\ninterests can be articulated with clarity.\xe2\x80\x9d Id. at 25.\nThe memorandum also considered but downplayed the potential concern that\ncriminal proceedings against the President would be \xe2\x80\x9c too political\xe2\x80\x9d either because\n\xe2\x80\x9c the ordinary courts may not be able to cope with powerful men\xe2\x80\x9d or because\nno fair trial could be provided to the President. Id. Although the fear that courts\nwould be unable to subject powerful officials to criminal process \xe2\x80\x9c arose in Eng\xc2\xad\nland where it presumably was valid in feudal time,\xe2\x80\x9d \xe2\x80\x9c [i]n the conditions now\nprevailing in the United States, little weight is to be given to it as far as most\nofficeholders are concerned.\xe2\x80\x9d Id. Nor did the memorandum find great weight in\nthe contention that the President, by virtue of his position, could not be assured\na fair criminal proceeding. To be sure, the memorandum continued, it would be\n\xe2\x80\x9c extremely difficult\xe2\x80\x9d to assure a sitting President a fair trial, id., noting that it\n\xe2\x80\x9c might be impossible to impanel a neutral jury.\xe2\x80\x9d Id. However, \xe2\x80\x9c there is a serious\n\xe2\x80\x98fairness\xe2\x80\x99 problem whether the criminal trial precedes or follows impeachment.\xe2\x80\x9d\nId. at 26. And \xe2\x80\x9c the latter unfairness is contemplated and accepted in the impeach\xc2\xad\nment clause itself, thus suggesting that the difficulty in impaneling a neutral jury\nshould not be viewed, in itself, an absolute bar to indictment of a public figure.\xe2\x80\x9d\nId.\n\nThe OLC memorandum next considered whether, in light of the President\xe2\x80\x99s\nunique powers to supervise executive branch prosecutions and assert executive\nrecognized Some statements by subsequent commentators may be read to contemplate cnminal prosecution of incum\xc2\xad\nbent civil officers, including the President See, e g., William Rawle, A View o f the Constitution o f the United States\no f America 215 (2d ed 1829) ( \xe2\x80\x9c But the ordinary tnbunals, as we shall see, are not precluded, either before or\nafter an impeachment, from taking cognizance o f the public and official delinquency.\xe2\x80\x9d ). There is also James W ilson\xe2\x80\x99s\nstatement in the Pennsylvania ratification debates that \xe2\x80\x9c far from being above the laws, he [the President] is amenable\nto them in his pnvate character as a citizen, and in his public character by impeachment." 2 The D ebates in the\nSeveral State Conventions on the Adoption o f the Federal Constitution 480 (Jonathan Elliot ed , 2d ed. 1836).\n\n227\n\n\x0cOpinions of the Office o f Legal Counsel m Volume 24\n\nprivilege, the constitutional balance generally should favor the conclusion that a\nsitting President may not be subjected to indictment or criminal prosecution. Id.\nat 26. According to this argument, the possession of these powers by the President\nrenders the criminal prosecution o f a sitting President inconsistent with the con\xc2\xad\nstitutional structure. It was suggested that such powers, which relate so directly\nto the President\xe2\x80\x99s status as a law enforcement officer, are simply incompatible\nwith the notion that the President could be made a defendant in a criminal case.\nThe memorandum did not reach a definitive conclusion on the weight to be\naccorded the President\xe2\x80\x99s capacity to exercise such powers in calculating the con\xc2\xad\nstitutional balance, although it did suggest that the President\xe2\x80\x99s possession of such\npowers pointed somewhat against the conclusion that the chief executive could\nbe subject to indictment or criminal prosecution during his tenure in office.\nIn setting forth the competing considerations, the memorandum explained that,\non the one hand, \xe2\x80\x9c it could be argued that a President\xe2\x80\x99s status as defendant in\na criminal case would be repugnant to his office of Chief Executive, which\nincludes the power to oversee prosecutions. In other words, just as a person cannot\nbe judge in his own case, he cannot be prosecutor and defendant at the same\ntime.\xe2\x80\x9d Id. This contention \xe2\x80\x9c would lose some of its persuasiveness where, as in\nthe W atergate case, the President delegates his prosecutorial functions to the\nAttorney General, who in turn delegates them [by regulation] to a Special Pros\xc2\xad\necutor.\xe2\x80\x9d Id. At the same time, the status of the Watergate Special Prosecutor\nwas somewhat uncertain, as \xe2\x80\x9c none of these delegations is, or legally can be,\nabsolute or irrevocable.\xe2\x80\x9d Id. The memorandum suggested, therefore, that even\nin the Watergate matter there remained the structural anomaly of the President\nserving as the chief executive and the defendant in a federal prosecution brought\nby the executive branch.9\nThe OLC memorandum also considered the degree to which a criminal prosecu\xc2\xad\ntion of a sitting President is incompatible with the notion that the President pos\xc2\xad\nsesses the power to assert executive privilege in criminal cases. The memorandum\nsuggested that \xe2\x80\x9c the problem of Executive privilege may create the appearance\nof so serious a conflict of interest as to make it appear improper that the President\nshould be a defendant in a criminal case.\xe2\x80\x9d Id. \xe2\x80\x9c If the President claims the privi\xc2\xad\nlege he would be accused of suppressing evidence unfavorable to him. If he fails\nto do so the charge would be that by making available evidence favorable to\nhim he is prejudicing the ability o f future Presidents to claim privilege.\xe2\x80\x9d Id. Ulti\xc2\xad\n9 This particular concern might also \xe2\x80\x9c lose som e of its persuasiveness\xe2\x80\x9d with respect to a prosecution by an inde\xc2\xad\npendent counsel appointed pursuant to the later-enacted Ethics in Government Act of 1978, 28 U.S.C \xc2\xa7\xc2\xa749, 591\net seq , whose status is defined by statute rather than by regulation. In Morrison v. Olson, 487 U S 654 (1988),\nthe Supreme Court rejected the argument that the independent counsel\xe2\x80\x99s statutory protection from removal absent\n\xe2\x80\x9c good cau se\xe2\x80\x9d or some condition substantially impairing the performance of his duties, id. at 663, violates the\nAppointments Clause, U.S Const art. II, \xc2\xa72, cl. 2, or separation o f powers principles more generally, 487 U S.\nat 685-96. But since the 1973 OLC memorandum did not place appreciable weight on this argument in determining\na sitting President\xe2\x80\x99s amenability to criminal prosecution, and since we place no reliance on this argument at all\nin our reconsideration and reaffirmation of the 1973 memorandum\xe2\x80\x99s conclusion, see infra part IIB, we need not\nfurther explore M orrison\'s relevance to this argument\n\n228\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nmately, however, the memorandum did not conclude that the identification of the\npossible incompatibility between the exercise of certain executive powers and the\ncriminal prosecution of a sitting President sufficed to resolve the constitutional\nquestion whether a sitting President may be indicted or tried.\nb.\nThe OLC memorandum then proceeded to the second part of its constitutional\nanalysis, examining whether criminal proceedings against a sitting President\nshould be barred by the doctrine of separation of powers because such proceedings\nwould \xe2\x80\x9c unduly interfere in a direct or formal sense with the conduct of the Presi\xc2\xad\ndency.\xe2\x80\x9d OLC Memo at 27. It was on this ground that the memorandum ultimately\nconcluded that the indictment or criminal prosecution of a sitting President would\nbe unconstitutional.\nAs an initial matter, the memorandum noted that in the Burr case, see U nited\nStates v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694), President Jefferson\nclaimed a privilege to be free from attending court in person. OLC Memo at\n27. Moreover, \xe2\x80\x9c it is generally recognized that high government officials are\nexcepted from the duty to attend court in person in order to testify,\xe2\x80\x9d and \xe2\x80\x9c [t]his\nprivilege would appear to be inconsistent with a criminal prosecution which nec\xc2\xad\nessarily requires the appearance of the defendant for pleas and trial, as a practical\nmatter.\xe2\x80\x9d Id. The memorandum noted, however, that the privilege against personal\nappearance was \xe2\x80\x9c only the general rule.\xe2\x80\x9d Id. The memorandum then suggested\nthat the existence of such a general privilege was not. by itself, determinative\nof the question whether a sitting President could be made a defendant in a criminal\nproceeding. \xe2\x80\x9c Because a defendant is already personally involved in a criminal\ncase (if total immunity be laid aside), it may be questioned whether the normal\nprivilege of high officials not to attend court in person applies to criminal pro\xc2\xad\nceedings in which the official is a defendant.\xe2\x80\x9d Id.\nEven though the OLC memorandum suggested that the existence of a general\nprivilege against personal appearance was not determinative, the memorandum did\nconclude that the necessity of the defendant\xe2\x80\x99s appearance in a criminal trial was\nof great relevance in determining how the proper constitutional balance should\nbe struck. By virtue of the necessity of the defendant\xe2\x80\x99s appearance, the institution\nof criminal proceedings against a sitting President \xe2\x80\x98\xe2\x80\x98would interfere with the Presi\xc2\xad\ndent\xe2\x80\x99s unique official duties, most of which cannot be performed by anyone else.\xe2\x80\x9d\nId. at 28. Moreover, \xe2\x80\x9c [djuring the past century the duties of the Presidency . . .\nhave become so onerous that a President may not be able fully to discharge the\npowers and duties of his office if he had to defend a criminal prosecution.\xe2\x80\x9d Id.\nFinally, \xe2\x80\x9c under our constitutional plan as outlined in Article I, sec. 3, only the\nCongress by the formal process of impeachment, and not a court by any process\nshould be accorded the power to interrupt the Presidency or oust an incumbent.\xe2\x80\x9d\n229\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nId. The memorandum rejected the argument that such burdens should not be\n\nthought conclusive because even an impeachment proceeding that did not result\nin conviction might preclude a President from performing his constitutionally\nassigned duties in the course of defending against impeachment. In contrast to\nthe risks that would attend a criminal proceeding against a sitting President, \xe2\x80\x9c this\nis a risk expressly contemplated by the Constitution, and is a necessary incident\nof the impeachment process.\xe2\x80\x9d Id.\nAs a consequence of the personal attention that a defendant must, as a practical\nmatter, give in defending against a criminal proceeding, the memorandum con\xc2\xad\ncluded that there were particular reasons rooted in separation of powers concerns\nthat supported the recognition o f an immunity for the President while in office.\nWith respect to the physical disabilities alone imposed by criminal prosecution,\n\xe2\x80\x98\xe2\x80\x98in view of the unique aspects of the Office of the President, criminal proceedings\nagainst a President in office should not go beyond a point where they could result\nin so serious a physical interference with the President\xe2\x80\x99s performance of his offi\xc2\xad\ncial duties that it would amount to an incapacitation.\xe2\x80\x9d Id. at 29. To be sure, the\nconcern that criminal proceedings would render a President physically incapable\nof performing constitutionally assigned functions would not be \xe2\x80\x9c quite as serious\nregarding minor offenses leading to a short trial and a fine.\xe2\x80\x9d Id. But \xe2\x80\x9c in more\nserious matters, i.e., those which could require the protracted personal involvement\nof the President in trial proceedings, the Presidency would be derailed if the Presi\xc2\xad\ndent were tried prior to removal.\xe2\x80\x9d Id.\nThe OLC memorandum also explained that the \xe2\x80\x9c non-physical yet practical\ninterferences, in terms of capacity to govern\xe2\x80\x9d that would attend criminal pro\xc2\xad\nceedings against a sitting President must also be considered in the constitutional\nbalance o f competing institutional interests. Id. In this regard, the memorandum\nexplained that \xe2\x80\x98 \xe2\x80\x98the President is the symbolic head of the Nation. To wound him\nby a criminal proceeding is to hamstring the operation o f the whole governmental\napparatus, both in foreign and domestic affairs.\xe2\x80\x9d Id. at 30. In light of the conclu\xc2\xad\nsion that an adjudication o f the President\xe2\x80\x99s criminal culpability would be uniquely\ndestabilizing to an entire branch o f government, the memorandum suggested that\n\xe2\x80\x9c special separation of powers based interests can be articulated with clarity\xe2\x80\x9d\nagainst permitting the ordinary criminal process to proceed. Id. at 25. By virtue\nof the impact that an adjudication of criminal culpability might have, a criminal\nproceeding against the President is, in some respects, necessarily political in a\nway that criminal proceedings against other civil officers would not be. In this\nrespect, it would be \xe2\x80\x9c incongruous\xe2\x80\x9d for a \xe2\x80\x9c jury of twelve\xe2\x80\x9d to undertake the\n\xe2\x80\x9c unavoidably political\xe2\x80\x9d task of rendering judgment in a criminal proceeding\nagainst the President. Id. at 30. \xe2\x80\x9c Surely, the House and Senate, via impeachment,\nare more appropriate agencies for such a crucial task, made unavoidably political\nby the nature o f the \xe2\x80\x98defendant.\xe2\x80\x99 \xe2\x80\x9d Id. The memorandum noted further that \xe2\x80\x9c [t]he\ngenius of the jury trial\xe2\x80\x9d was to provide a forum for ordinary people to pass on\n230\n\n\x0cA Sitting President\'s Amenability to Indictment and Cnminal Prosecution\n\n\xe2\x80\x9c matters generally within the experience or contemplation of ordinary, everyday\nlife.\xe2\x80\x9d Id. at 31. The memorandum therefore asked whether it would \xe2\x80\x9c be fair to\nsuch an agency to give it responsibility for an unavoidably political judgment\nin the esoteric realm of the Nation\xe2\x80\x99s top Executive.\xe2\x80\x9d Id.\nIn accord with this conclusion about the propriety of leaving such matters to\nthe impeachment process, the memorandum noted that \xe2\x80\x9c [u]nder our developed\nconstitutional order, the presidential election is the only national election, and\nthere is no effective substitute for it.\xe2\x80\x9d Id. at 32. A criminal trial of a sitting Presi\xc2\xad\ndent, however, would confer upon a jury of twelve the power, in effect, to overturn\nthis national election. \xe2\x80\x9c The decision to terminate this mandate . . . is more fit\xc2\xad\ntingly handled by the Congress than by a jury, and such congressional power\nis founded in the Constitution.\xe2\x80\x9d Id. In addition, the impeachment process is better\nsuited to the task than is a criminal proceeding because appeals from a criminal\ntrial could \xe2\x80\x9c drag out for months.\xe2\x80\x9d Id. at 31. By contrast, \xe2\x80\x9c [t]he whole country\nis represented at the [impeachment] trial, there is no appeal from the verdict, and\nremoval opens the way for placing the political system on a new and more healthy\nfoundation.\xe2\x80\x9d Id.\n4.\nThe OLC memorandum concluded its analysis by addressing \xe2\x80\x9c [a] possibility\nnot yet mentioned,\xe2\x80\x9d which would be \xe2\x80\x9c to indict a sitting President but defer further\nproceedings until he is no longer in office.\xe2\x80\x9d OLC Memo at 29. The memorandum\nstated that \xe2\x80\x9c [f]rom the standpoint of minimizing direct interruption of official\nduties \xe2\x80\x94 and setting aside the question of the power to govern \xe2\x80\x94 this procedure\nmight be a course to be considered.\xe2\x80\x9d Id. The memorandum suggested, however,\nthat \xe2\x80\x9c an indictment hanging over the President while he remains in office would\ndamage the institution of the Presidency virtually to the same extent as an actual\nconviction.\xe2\x80\x9d Id. In addition, there would be damage to the executive branch\n\xe2\x80\x9c flowing from unrefuted charges.\xe2\x80\x9d Id. Noting that \xe2\x80\x9c the modem Presidency, under\nwhatever party, has had to assume a leadership role undreamed of in the eighteenth\nand early nineteenth centuries,\xe2\x80\x9d the memorandum stated that \xe2\x80\x9c [t]he spectacle of\nan indicted President still trying to serve as Chief Executive boggles the imagina\xc2\xad\ntion.\xe2\x80\x9d Id. at 30.\nThe memorandum acknowledged that, \xe2\x80\x9c it is arguable that . . . it would be pos\xc2\xad\nsible to indict a President, but defer trial until he was out of office, without in\nthe meantime unduly impeding the power to govern, and the symbolism on which\nso much of his real authority rest.\xe2\x80\x9d Id. at 31. But the memorandum nevertheless\nconcluded that\n[g]iven the realities of modem politics and mass media, and the\ndelicacy of the political relationships which surround the Presidency\n231\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nboth foreign and domestic, there would be a Russian roulette aspect\nto the course of indicting the President but postponing trial, hoping\nin the meantime that the power to govern could survive.\nId. In light of the effect that an indictment would have on the operations of the\n\nexecutive branch, \xe2\x80\x9c an impeachment proceeding is the only appropriate way to\ndeal with a President while in office.\xe2\x80\x9d Id. at 32.\nIn reaching this conclusion regarding indictment, the memorandum noted that\nthere are \xe2\x80\x9c certain drawbacks,\xe2\x80\x9d such as the possibility that the statute of limitations\nmight run, thereby resulting in \xe2\x80\x9c a complete hiatus in criminal liability.\xe2\x80\x9d Id. As\nthe statute of limitations is ultimately within the control of Congress, however,\nthe memorandum\xe2\x80\x99s analysis concluded as follows: \xe2\x80\x9c We doubt . . . that this gap\nin the law is sufficient to overcome the arguments against subjecting a President\nto indictment and criminal trial while in office.\xe2\x80\x9d Id.\nB.\nOn October 5, 1973, less than two weeks after OLC issued its memorandum,\nSolicitor General Robert Bork filed a brief in the United States District Court\nfor the District of Maryland that addressed the question whether it would be con\xc2\xad\nstitutional to indict or criminally try a sitting President. Then-Vice President\nAgnew had moved to enjoin, principally on constitutional grounds, grand jury\nproceeding against him. See SG B rief at 3. In response to this motion, Solicitor\nGeneral Bork provided the court with a brief that set forth \xe2\x80\x9c considerations based\nupon the Constitution\xe2\x80\x99s text, history, and rationale which indicate that all civil\nofficers of the United States other than the President are amenable to the federal\ncriminal process either before o r after the conclusion of impeachment pro\xc2\xad\nceedings.\xe2\x80\x9d Id .10\n1.\nAs had the OLC memorandum, the Solicitor General\xe2\x80\x99s brief began by noting\nthat \xe2\x80\x9c [t]he Constitution provides no explicit immunity from criminal sanctions\nfor any civil officer.\xe2\x80\x9d SG Brief at 4. Indeed, the brief noted that the only textual\ngrant of immunity for federal officials appears in the Arrest and Speech or Debate\nClauses of Article I, Section 6. In referring to these clauses, the brief rejected\nthe suggestion that the immunities set forth there could be understood to be a\npartial withdrawal from members o f Congress of a broader implicit immunity that\nall civil officers, including the President, generally enjoyed; indeed, \xe2\x80\x9c [t]he intent\n10 Unlike the OLC memorandum, the Solicitor General\xe2\x80\x99s brief did not specifically distinguish between indictment\nand other phases o f the \xe2\x80\x9c criminal process\xe2\x80\x9d W hile explaining that \xe2\x80\x9c the President is immune from indictment and\ntrial prior to removal from office,\xe2\x80\x9d SG Brief at 20, the brief did not specifically opine as to whether the President\ncould be indicted as long as further process was postponed until he left office.\n\n232\n\n\x0cA Sitting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nof the Framers was to the contrary.\xe2\x80\x9d SG Brief at 5.11 In light of the textual omis\xc2\xad\nsion of any express grant of immunity from criminal process for civil officers\ngenerally, \xe2\x80\x9c it would require a compelling constitutional argument to erect such\nan immunity for a Vice President.\xe2\x80\x9d Id.\nIn considering whether such a compelling argument could be advanced, the brief\ndistinguished the case of the President from that of the Vice President. Although\nthe Vice President had suggested that the Impeachment Judgment Clause itself\ndemonstrated that \xe2\x80\x98 \xe2\x80\x98impeachment must precede indictment\xe2\x80\x99\xe2\x80\x99 for all civil officers,\nthe records of the debates of the constitutional convention did not support that\nconclusion. Id. The Solicitor General argued, in accord with the OLC memo\xc2\xad\nrandum, that the \xe2\x80\x9c principal operative effect\xe2\x80\x9d of the Impeachment Judgment\nClause \xe2\x80\x98\xe2\x80\x98is solely the preclusion of pleas of double jeopardy in criminal prosecu\xc2\xad\ntions following convictions upon impeachments.\xe2\x80\x9d Id. at 7. In any event, the\ndiscussion of the Impeachment Judgment Clause in the convention focused almost\nexclusively on the Office of the President, and \xe2\x80\x9c the Framers did not debate the\nquestion whether impeachment generally must precede indictment.\xe2\x80\x9d Id. at 6.\nTo the extent that the convention did debate the timing of impeachment relative\nto indictment, the brief explained, the convention records \xe2\x80\x9c show that the Framers\ncontemplated that this sequence should be mandatory only as to the President.\xe2\x80\x9d\nId. Moreover, the remarks contained in those records \xe2\x80\x9c strongly suggest an under\xc2\xad\nstanding that the President, as Chief Executive, would not be subject to the ordi\xc2\xad\nnary criminal process.\xe2\x80\x9d Id. The Framers\xe2\x80\x99 \xe2\x80\x9c assumption that the President would\nnot be subject to criminal process\xe2\x80\x9d did not, however, rest on a general principle\napplicable to all civil officers. Id. Instead, the assumption was \xe2\x80\x9c based upon the\ncrucial nature of his executive powers.\xe2\x80\x9d Id. As the brief stated:\nThe President\xe2\x80\x99s immunity rests not only upon the matters just dis\xc2\xad\ncussed but also upon his unique constitutional position and powers\n. . . . There are substantial reasons, embedded not only in the con\xc2\xad\nstitutional framework but in the exigencies of government, for\ndistinguishing in this regard between the President and all lesser\nofficers including the Vice President.\nId. at 7.\n\n2.\nIn explaining why, as an initial matter, the Vice President could be indicted\nand tried while still in office, the brief argued that indictment would not effect\nthe de facto removal of that officer. SG Brief at 11. \xe2\x80\x9c [I]t is clear from history\n11 In this respect, the Solicitor General\xe2\x80\x99s brief more forcefully rejected this suggestion than did the OLC m em o\xc2\xad\nrandum, which reasoned that the clauses gave rise \xe2\x80\x9c with equal validity\xe2\x80\x9d to competing inferences on this point\nSee OLC Memo at 18\n\n233\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nthat a criminal indictment, or even trial and conviction, does not, standing alone,\neffect the removal of an impeachable federal officer.\xe2\x80\x9d Id. at 11-12. The brief\nnoted the past constitutional practice of indicting and even convicting federal\njudges during their tenure, as well as the fact that Vice President Aaron Burr\n\xe2\x80\x9c was subject to simultaneous indictment in two states while in office, yet he\ncontinued to exercise his constitutional responsibilities until the expiration of his\nterm.\xe2\x80\x9d Id. at 12. \xe2\x80\x9c Apparently, neither Burr nor his contemporaries considered\nhim constitutionally immune from indictment. Although counsel for the Vice\nPresident asserted that Burr\xe2\x80\x99s indictments were \xe2\x80\x98allowed to die,\xe2\x80\x99 that was merely\nbecause \xe2\x80\x98Burr thought it best not to visit either New York or New Jersey.\xe2\x80\x99 \xe2\x80\x9d\nId. at 12 n* (citations omitted). The brief therefore determined that \xe2\x80\x9c [cjertainly\nit is clear that criminal indictment, trial, and even conviction of a Vice President\nwould not, ipso fa c to , cause his removal; subjection of a Vice President to the\ncriminal process therefore does not violate the exclusivity of the impeachment\npower as the means of his removal from office.\xe2\x80\x9d Id. at 13.\nThe brief did conclude, however, that the \xe2\x80\x9c structure of the Constitution\xe2\x80\x9d pre\xc2\xad\ncluded the indictment of the President. Id. at 15. In framing the inquiry into\nwhether considerations of constitutional structure supported the recognition of an\nimmunity from criminal process for certain civil officers, the brief explained that\nthe \xe2\x80\x9c Constitution is an intensely practical document and judicial derivation of\npowers and immunities is necessarily based upon consideration of the document\xe2\x80\x99s\nstructure and of the practical results of alternative interpretations.\xe2\x80\x9d Id. As a con\xc2\xad\nsequence,\n[t]he real question underlying the issue of whether indictment of\nany particular civil officer can precede conviction upon impeach\xc2\xad\nm ent\xe2\x80\x94 and it is constitutional in every sense because it goes to\nthe heart of the operation o f government \xe2\x80\x94 is whether a govern\xc2\xad\nmental function would be seriously impaired if a particular civil\nofficer were liable to indictment before being tried on impeachment.\nId. at 15-16. Given that the constitutional basis for the recognition of a civil offi\xc2\xad\n\ncer\xe2\x80\x99s immunity from criminal process turned on the resolution of this question,\nthe answer \xe2\x80\x9c must necessarily vary with the nature and functions of the office\ninvolved.\xe2\x80\x9d Id. at 16.\nThe brief then proceeded to consider the consequences that criminal prosecu\xc2\xad\ntions would have on the performance of the constitutional functions that are the\nresponsibility of various civil officers. As a matter of constitutional structure,\nArticle III judges should enjoy no constitutional immunity from the criminal\nprocess because while a \xe2\x80\x9c judge m ay be hampered in the performance of his duty\nwhen he is on trial for a felony . . . his personal incapacity in no way threatens\nthe ability of the judicial branch to continue to function effectively.\xe2\x80\x9d Id. at 16.\n234\n\n\x0cA Sitting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nSimilarly, no such immunity should be recognized for members o f Congress. The\nlimited immunity in the Arrest and Speech or Debate Clauses reflected\na recognition that, although the functions of the legislature are not\nlightly to be interfered with, the public interest in the expeditious\nand even-handed administration of the criminal law outweighs the\ncost imposed by the incapacity of a single legislator. Such inca\xc2\xad\npacity does not seriously impair the functioning of Congress.\nId. at 16-17.\n\nThe brief argued that the same structural considerations that counseled against\nthe recognition of an immunity from criminal process for individual judges or\nlegislators also counseled against the recognition of such an immunity for the\nVice President:\nAlthough the office of the Vice Presidency is of course a high one,\nit is not indispensable to the orderly operation of government. There\nhave been many occasions in our history when the nation lacked\na Vice President, and yet suffered no ill consequences. And, as has\nbeen discussed above, at least one Vice President successfully ful\xc2\xad\nfilled the responsibilities of his office while under indictment in\ntwo states.\nId. al 18 (citation omitted). The brief noted that the Vice President had only three\n\nconstitutional functions: to replace the President in certain extraordinary cir\xc2\xad\ncumstances; to make, in certain extraordinary circumstances, a written declaration\nof the President\xe2\x80\x99s inability to discharge the powers and duties of his office; and\nto preside over the Senate and cast the deciding vote in the case of a tie in that\nbody. Id. at 19. None of these \xe2\x80\x9c constitutional functions is substantially impaired\nby [the Vice President\xe2\x80\x99s] liability to the criminal process.\xe2\x80\x9d Id.\n3The Solicitor General\xe2\x80\x99s brief explained that recognition of presidential immunity\nfrom criminal process, in contrast to the vice presidential immunity, was com\xc2\xad\npelled by a consideration of the constitutional structure. After noting that\n\xe2\x80\x9c [ajlmost all legal commentators agree . . . that an incumbent President must\nbe removed from office through conviction upon an impeachment before being\nsubject to the criminal process,\xe2\x80\x9d SG Brief at 17, the brief repeated its determina\xc2\xad\ntion that the Framers assumed \xe2\x80\x9c that the nation\xe2\x80\x99s Chief Executive, responsible as\nno other single officer is for the affairs of the United States, would not be taken\nfrom duties that only he can perform unless and until it is determined that he\n235\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nis to be shorn of those duties by the Senate.\xe2\x80\x9d Id. A proper understanding of the\nconstitutional structure reflects this shared assumption; in this regard it is \xe2\x80\x9c note\xc2\xad\nworthy that the President is the only officer of government for whose temporary\ndisability the Constitution provides procedure to qualify a replacement.\xe2\x80\x9d Id. at\n18. This provision constituted a textual recognition \xe2\x80\x9c that the President is the only\nofficer of government for whose temporary disability while in office incapacitates\nan entire branch of government.\xe2\x80\x9d Id.\nFinally, the brief noted that the conclusion that the Framers assumed that the\nPresident would enjoy an immunity from criminal process was supported by other\nconsiderations of constitutional structure beyond the serious interference with the\ncapacity of the executive branch to perform its constitutional functions. The\n\xe2\x80\x9c Framers could not have contemplated prosecution of an incumbent President\nbecause they vested in him complete power over the execution of the laws, which\nincludes, of course, the power to control prosecutions.\xe2\x80\x9d Id. at 20.\nC.\nThe foregoing review demonstrates that, in 1973, the Department applied a con\xc2\xad\nsistent approach in analyzing the constitutional question whether a sitting President\nmay be subject to indictment and criminal prosecution. Both the OLC memo\xc2\xad\nrandum and the Solicitor General\xe2\x80\x99s brief recognized that the President is not above\nthe law, and that he is ultimately accountable for his misconduct that occurs\nbefore, during, and after his service to the country. Each also recognized, however,\nthat the President occupies a unique position within our constitutional order.\nThe Department concluded that neither the text nor the history of the Constitu\xc2\xad\ntion ultimately provided dispositive guidance in determining whether a President\nis amenable to indictment or criminal prosecution while in office. It therefore\nbased its analysis on more general considerations of constitutional structure.\nBecause of the unique duties and demands of the Presidency, the Department con\xc2\xad\ncluded, a President cannot be called upon to answer the demands of another branch\nof the government in the same manner as can all other individuals. The OLC\nmemorandum in particular concluded that the ordinary workings of the criminal\nprocess would impose burdens upon a sitting President that would directly and\nsubstantially impede the executive branch from performing its constitutionally\nassigned functions, and the accusation or adjudication of the criminal culpability\nof the nation\xe2\x80\x99s chief executive by either a grand jury returning an indictment or\na petit jury returning a verdict would have a dramatically destabilizing effect upon\nthe ability of a coordinate branch of government to function. The Department\ntherefore concluded in both the OLC memorandum and the Solicitor General\xe2\x80\x99s\nbrief that, while civil officers generally may be indicted and criminally prosecuted\nduring their tenure in office, the constitutional structure permits a sitting President\n236\n\n\x0cA Sitting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nto be subject to criminal process only after he leaves office or is removed there\xc2\xad\nfrom through the impeachment process.\n\nII.\nSince the Department set forth its constitutional analysis in 1973, the Supreme\nCourt has decided three cases that are relevant to whether a sitting President may\nbe subject to indictment or criminal prosecution.12 U nited States v. Nixon, 418\nU.S. 683 (1974), addressed whether the President may assert a claim of executive\nprivilege in response to a subpoena in a criminal case that seeks records of\ncommunications between the President and his advisors. Nixon v. F itzgerald, 457\nU.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997), both addressed the\nextent to which the President enjoys a constitutional immunity from defending\nagainst certain types of civil litigation, with F itzgerald focusing on official mis\xc2\xad\nconduct and Jon es focusing primarily on misconduct \xe2\x80\x9c unrelated to any of his\nofficial duties as President of the United States and, indeed, occurr[ing] before\nhe was elected to that office.\xe2\x80\x9d Id. at 686.13\nNone of these cases directly addresses the questions whether a sitting President\nmay be indicted, prosecuted, or imprisoned.14 We would therefore hesitate before\n,2 We do not consider either Nixon v Administrator o f General Services, 433 U S. 425 (1977), or Morrison v.\nOlson, 487 U.S 654 (1988), to be directly relevant to this question, and thus we do not discuss either o f them\nextensively. Nixon v Administrator o f General Services involved a suit brought by former President Nixon to enjoin\nenforcement of a federal statute taking custody of and regulating access to his Presidential papers and various tape\nrecordings, in part on the ground that the statute violated the separation of powers While the case did analyze\nthe separation o f powers claim under a balancing test o f the sort w e embrace here, w e m fm text accompanying\nnote 17, the holding and reasoning do not shed appreciable light on the question before us\nMorrison v Olson considered and rejected various separation o f powers challenges to the independent counsel\nprovisions o f the Ethics in Government Act of 1978, which authorized a court-appointed independent counsel to\ninvestigate and prosecute the President and certain other high-ranking executive branch officials for violations of\nfederal cnminal laws Morrison focused on whether a particular type o f prosecutor could pursue cnminal investiga\xc2\xad\ntions and prosecutions o f executive branch officials, in a case involving the cnminal investigation of an infenor\nfederal officer The Court accordingly had no occasion to and did not consider whether the Act could constitutionally\nbe invoked to support an independent counsel\xe2\x80\x99s indictment of a silting President.\n,3The Court noted that Jones\xe2\x80\x99s state law claim for defamation based on statements by \xe2\x80\x9c vanous persons authonzed\nto speak for the President,\xe2\x80\x9d 520 U S . al 685, \xe2\x80\x9c arguably may involve conduct within the outer penm eter of the\nPresident\xe2\x80\x99s official responsibilities \xe2\x80\x9d Id. at 686 For purposes of this memorandum, we use the phrase \xe2\x80\x9c unofficial\nconduct,\xe2\x80\x9d as did the Court, see id. at 693, to refer to conduct unrelated to the President\xe2\x80\x99s official duties. Compare\nNixon v. Fitzgerald, 457 U S. at 756 (recognizing \xe2\x80\x9c absolute Presidential immunity from damages liability for acts\nwithin the \xe2\x80\x98outer perim eter\xe2\x80\x99 of his official responsibility\xe2\x80\x9d ).\n14 See United States v. Nixon, 418 U S . at 687 n 2 (expressly reserving the question whether the President can\nconstitutionally be named an unindicted co-conspirator). See also Jones v. Clinton, 36 F Supp 2d 1118, 1134 n.22\n(E D Ark 1999) ( \xe2\x80\x9c [T]he question o f whether a President can be held in cnminal contempt o f court and subjected\nto cnminal penalties raises constitutional issues not addressed by the Supreme Court in the Jones case.\xe2\x80\x9d ) As a\nmatter of constitutional practice, it remains the case today that no President has ever so much as testified, or been\nordered to testify, in open court, let alone been subject to criminal proceedings as a defendant. Clinton v. Jones,\n520 U.S at 692 n 14.\nIn the reply b n ef for the United States in United States v N ixon, in response to President Nixon\xe2\x80\x99s argument\nthat a sitting President was constitutionally immune from indictment and therefore immune from being named an\nunindicted co-conspirator by a grand jury, Watergate Special Prosecutor Leon Jaworski argued that it was not settled\nas a matter of constitutional law whether a sitting President could be subject to indictment. See Reply B n ef for\nthe United States, United States v. Nixon, 418 U S . 683 (1974) (No 73-1766). He therefore argued that the Court\nContinued\n\n237\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\nconcluding that judicial statements made in the context of these distinct constitu\xc2\xad\ntional disputes would suffice to undermine the Department\xe2\x80\x99s previous resolution\nof the precise constitutional question addressed here. In any event, however, we\nconclude that these precedents are largely consistent with the Department\xe2\x80\x99s 1973\ndeterminations that (1) the proper doctrinal analysis requires a balancing between\nthe responsibilities of the President as the sole head of the executive branch\nagainst the important governmental purposes supporting the indictment and\ncriminal prosecution of a sitting President; and (2) the proper balance supports\nrecognition of a temporary immunity from such criminal process while the Presi\xc2\xad\ndent remains in office. Indeed, U n ited S tates v. Nixon and Nixon v. F itzgerald\nrecognized and embraced the same type of constitutional balancing test anticipated\nin this Office\xe2\x80\x99s 1973 memorandum. Clinton v. Jones, which held that the President\nis not immune from at least certain judicial proceedings while in office, even\nif those proceedings may prove somewhat burdensome, does not change our\nconclusion in 1973 and again today that a sitting President cannot constitutionally\nbe indicted or tried.\nA.\n1.\nIn U n ited S ta tes v. Nixon, the Court considered a motion by President Nixon\nto quash a third-party subpoena duces tecum directing the President to produce\ncertain tape recordings and documents concerning his conversations with aides\nand advisers. 418 U.S. at 686. The Court concluded that the subpoena, which\nhad been issued upon motion by the Watergate Special Prosecutor in connection\nshould not rely on the assumption that a sitting President is immune from indictment in resolving the distinct question\nwhether the President could be named an unindicted co-conspirator In so arguing, the Special Prosecutor rejected\nthe President\xe2\x80\x99s contention that either the historical evidence o f the intent o f the Framers or the plain terms of the\nImpeachment Judgm ent Clause foreclosed the indictment o f a sitting President as a constitutional matter See id.\nat 24 ( \xe2\x80\x9c nothing in the text o f the Consutuuon o r m its history\n. imposes any bar to indictment of an incumbent\nPresident\xe2\x80\x9d ), id at 29 ( \xe2\x80\x9c [T]he simple fact is that the Framers never confronted the issue at all \xe2\x80\x9d ) The Special\nProsecutor then argued, as the Department itself had concluded, that \xe2\x80\x9c [pjnm ary support for such a prohibition must\nbe found, if at all, in considerations of constitutional and public policy including competing factors such as the\nnature and role o f the Presidency in our constitutional system, the importance of the administration of criminal\njustice, and the principle that under our system no person, no matter what his station, is above the law .\xe2\x80\x9d Id. at\n24-25. The Special Prosecutor explained that the contention that the President should be immune from indictment\nbecause the functioning o f the executive branch depends upon a President unburdened by defending against criminal\nchargcs \xe2\x80\x9c is a weighty argum ent and it is enutled to great respect.\xe2\x80\x9d Id. at 31. He noted, however, that \xe2\x80\x9c our constitu\xc2\xad\ntional system has shown itself to be remarkably resilient\xe2\x80\x9d and that \xe2\x80\x9c there are very serious implications to the Presi\xc2\xad\ndent\xe2\x80\x99s position that he has absolute immunity from criminal indictm ent.\xe2\x80\x9d Id at 32 In particular, the Special Pros\xc2\xad\necutor argued that to the extent some cnminal offenses are not impeachable, the recognition of an absolute immunity\nfrom indictment would mean that \xe2\x80\x9c the Constitution has left a lacuna of potentially senous dimensions \xe2\x80\x9d Id. at\n34. The Special Prosecutor ulumately concluded that \xe2\x80\x9c [w]hether these factors compel a conclusion that as a matter\nof constitutional interpretation a sitting President cannot be indicted for violations of federal criminal laws is an\nissue about which, at best, there is presently considerable doubt.\xe2\x80\x9d Id. at 25. He explained further that the resolution\nof this question was not necessary to the decision in Nixon, because the Court confronted only the question whether\nthe President could be named an umndicted co-conspirator\xe2\x80\x94 an event that \xe2\x80\x9c cannot be regarded as equally burden\xc2\xad\nsome.\xe2\x80\x9d Id at 20.\n\n238\n\n\x0cA Silting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nwith the criminal prosecution of persons other than the President, satisfied the\nstandards of Rule 17(c) of Federal Rules of Criminal Procedure.15 The Court\ntherefore proceeded to consider the claim \xe2\x80\x9c that the subpoena should be quashed\nbecause it demands \xe2\x80\x98confidential conversations between a President and his close\nadvisors that it would be inconsistent with the public interest to produce.\xe2\x80\x99 \xe2\x80\x9d Id.\nat 703 (citation omitted).\nIn assessing the President\xe2\x80\x99s constitutional claim of privilege, the Court first\nconsidered the relevant evidence of the Framers\xe2\x80\x99 intent and found that it supported\nthe President\xe2\x80\x99s assertion of a constitutional interest in confidentiality. Id. at 705\nn.15. The Court also rejected the suggestion that the textual omission of a presi\xc2\xad\ndential privilege akin to the congressional privilege set forth in the Arrest and\nSpeech or Debate Clauses was \xe2\x80\x9c dispositive\xe2\x80\x9d of the President\xe2\x80\x99s claim. Id. at 705\nn.16. Considering the privilege claim in light of the constitutional structure as\na whole, the Court concluded that,\n[w]hatever the nature of the privilege of confidentiality of Presi\xc2\xad\ndential communications in the exercise of Art. II powers, the privi\xc2\xad\nlege can be said to derive from the supremacy of each branch\nwithin its own assigned area of constitutional duties. Certain powers\nand privileges flow from the nature of enumerated powers; the\nprotection of the confidentiality of Presidential communications has\nsimilar constitutional underpinnings.\nId. at 705-06 (footnote omitted). Such a privilege must be recognized, the Court\n\nsaid, in light of \xe2\x80\x9c the importance of . . . confidentiality of Presidential commu\xc2\xad\nnications in performance of the President\xe2\x80\x99s responsibilities.\xe2\x80\x9d Id. at 711. The\ninterest in the confidentiality of Presidential communications was \xe2\x80\x9c weighty indeed\nand entitled to great respect.\xe2\x80\x9d Id. at 712.\nThe Court next considered the extent to which that interest would be impaired\nby presidential compliance with a subpoena. The Court concluded that it was quite\nunlikely that the failure to recognize an absolute privilege for confidential presi\xc2\xad\ndential communications against criminal trial subpoenas would, in practical con\xc2\xad\nsequence, undermine the constitutional interest in the confidentiality of such\ncommunications. \xe2\x80\x9c [W]e cannot conclude that advisers will be moved to temper\n15 In response to an earlier subpoena, President Nixon had asserted that, as a constitutional matter, he was absolutely\nimmune from judicial process while in office The United States Court of Appeals for the District o f Columbia\nCircuit rejected that contention. See Nixon v Sirica, 487 F 2 d 700 (D C . Cir. 1973). The D C . Circuit explained\nthat the President\xe2\x80\x99s constitutional position could not be maintained in light of United Slates v Burr, 25 F Cas\n187 (C.C.D Va 1807) (No 14,694), and it rejected the contention that the Supreme Court\xe2\x80\x99s decision in Mississippi\nv Johnson, 71 U.S. (4 Wall.) 475 (1866), was to the contrary 487 F.2d at 708-12 We note that the Department\xe2\x80\x99s\n1973 analysis did not depend upon a broad contention that the President is immune from all judicial process while\nin office Indeed, the OLC memorandum specifically cast doubt upon such a contention and explained that even\nAttorney General Stanbery had not made such a broad argument in Mississippi v Johnson See OLC Memo at\n23 ( \xe2\x80\x9c Attorney General Stanbery\xe2\x80\x99s reasoning is presumably limited to the power of the courts to review official\naction of the President \xe2\x80\x99\xe2\x80\x99)\n\n239\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\nthe candor of their remarks by the infrequent occasions of disclosure because of\nthe possibility that such conversations will be called for in the context of a\ncriminal prosecution.\xe2\x80\x9d Id. Finally, the Court balanced against the President\xe2\x80\x99s\ninterest in maintaining the confidentiality of his communications \xe2\x80\x9c [t]he impedi\xc2\xad\nment that an absolute, unqualified privilege would place in the way of the primary\nconstitutional duty of the Judicial Branch to do justice in criminal prosecutions.\xe2\x80\x9d\nId. at 707. The Court predicated its conclusion on the determination that \xe2\x80\x9c [t]he\nneed to develop all relevant facts in the adversary system is both fundamental\nand comprehensive. The ends of criminal justice would be defeated if judgments\nwere to be founded on a partial o r speculative presentation of the facts.\xe2\x80\x9d Id. at\n709.\nThe assessment of these competing interests led the Court to conclude that \xe2\x80\x9c the\nlegitimate needs of the judicial process may outweigh Presidential privilege,\xe2\x80\x9d id.\nat 707, and it therefore determined that it was \xe2\x80\x9c necessary to resolve those com\xc2\xad\npeting interests in a manner that preserves the essential functions of each branch.\xe2\x80\x9d\nId. Here, the Court weighed the President\xe2\x80\x99s constitutional interest in confiden\xc2\xad\ntiality, se e id. at 707-08, against the nation\xe2\x80\x99s \xe2\x80\x9c historic commitment to the rule\nof law,\xe2\x80\x9d id. at 708, and the requirement of \xe2\x80\x9c the fair administration of criminal\njustice.\xe2\x80\x9d Id. at 713. The Court ultimately concluded that the President\xe2\x80\x99s general\xc2\xad\nized interest in confidentiality did not suffice to justify a privilege from all\ncriminal subpoenas, although it noted that a different analysis might apply to a\nprivilege based on national security interests. Id. at 706.\n\n2.\nIn Nixon v. F itzgerald, the Supreme Court considered a claim by former Presi\xc2\xad\ndent Nixon that he enjoyed an absolute immunity from a former government\nemployee\xe2\x80\x99s suit for damages for President Nixon\xe2\x80\x99s allegedly unlawful official con\xc2\xad\nduct while in office. The Court endorsed a rule of absolute immunity, concluding\nthat such immunity is \xe2\x80\x9c a functionally mandated incident of the President\xe2\x80\x99s unique\noffice, rooted in the constitutional tradition of the separation of powers and sup\xc2\xad\nported by our history.\xe2\x80\x9d 457 U.S. at 749.\nThe Court reviewed various statements by the Framers and early commentators,\nfinding them consistent with the conclusion that the Constitution was adopted on\nthe assumption that the President would enjoy an immunity from damages liability\nfor his official actions. Id. at 749, 751 n.31. The Court once again rejected the\ncontention that the textual grant o f a privilege to members of Congress in Article\nI, Section 6 precluded the recognition of an implicit privilege on behalf of the\nPresident. S ee id. at 750 n.31.\nBut as in U n ited S tates v. N ixon, the Court found that \xe2\x80\x9c the most compelling\narguments arise from the Constitution\xe2\x80\x99s separation of powers and the Judiciary\xe2\x80\x99s\nhistoric understanding of that doctrine,\xe2\x80\x9d Id. at 752 n.31. It emphasized that \xe2\x80\x9c [t]he\n240\n\n\x0cA Sitting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nPresident occupies a unique position in the constitutional scheme . . . as the chief\nconstitutional officer of the Executive Branch.\xe2\x80\x9d Id. at 749-50. Although other\ngovernment officials enjoy only qualified immunity from civil liability for their\nofficial actions, \xe2\x80\x9c [bjecause of the singular importance of the President\xe2\x80\x99s duties,\ndiversion of his energies by concern with private lawsuits would raise unique risks\nto the effective functioning of government.\xe2\x80\x9d Id. at 751. Such lawsuits would be\nlikely to occur in considerable numbers since the \xe2\x80\x98\xe2\x80\x98President must concern himself\nwith matters likely to \xe2\x80\x98arouse the most intense feelings.\xe2\x80\x99 \xe2\x80\x9d Id. at 752. Yet, the\nCourt noted, \xe2\x80\x9c it is in precisely such cases that there exists the greatest public\ninterest in providing an official \xe2\x80\x98the maximum ability to deal fearlessly and impar\xc2\xad\ntially\xe2\x80\x99 with the duties of his office.\xe2\x80\x9d Id. (citations omitted). The Court emphasized\nthat the \xe2\x80\x9c visibility\xe2\x80\x9d of the President\xe2\x80\x99s office would make him \xe2\x80\x9c an easily identifi\xc2\xad\nable target for suits for civil damages,\xe2\x80\x9d and that \xe2\x80\x9c [c]ognizance of this personal\nvulnerability frequently could distract a President from his public duties, to the\ndetriment of not only the President and his office but also the Nation that the\nPresidency was designed to serve.\xe2\x80\x9d Id. at 753.\nThe Court next examined whether the constitutional interest in presidential\nimmunity from civil damages arising from the performance of official duties was\noutweighed by the governmental interest in providing a forum for the resolution\nof damages actions generally, and actions challenging the legality of official presi\xc2\xad\ndential conduct in particular. The Court concluded that it was appropriate to con\xc2\xad\nsider the \xe2\x80\x9c President\xe2\x80\x99s constitutional responsibilities and status as factors coun\xc2\xad\nseling judicial deference and restraint.\xe2\x80\x9d Id. at 753. As the Court explained,\n[i]t is settled law that the separation-of-powers doctrine does not\nbar every exercise of jurisdiction over the President of the United\nStates. But our cases also have established that a court, before exer\xc2\xad\ncising jurisdiction, must balance the constitutional weight of the\ninterest to be served against the dangers of intrusion on the\nauthority and functions of the Executive Branch.\nId. at 753-54 (citations omitted). In performing this balancing, the Court noted\nthat recognition of a presidential immunity from such suits \xe2\x80\x9c will not leave the\nNation without sufficient protection against misconduct on the part of the Chief\nExecutive,\xe2\x80\x9d in light of other mechanisms creating \xe2\x80\x9c incentives to avoid mis\xc2\xad\nconduct\xe2\x80\x9d (including impeachment). Id. at 757. The Court concluded that the con\xc2\xad\nstitutional interest in ensuring the President\xe2\x80\x99s ability to perform his constitutional\nfunctions outweighed the competing interest in permitting civil actions for unlaw\xc2\xad\nful official conduct to proceed.\n\n241\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n3.\nIn C linton v. Jon es, the Court declined to extend the immunity recognized in\nF itzg era ld to civil suits challenging the legality of a President\xe2\x80\x99s unofficial conduct.\nIn that case, the plaintiff sought to recover compensatory and punitive damages\nfor alleged misconduct by President Clinton occurring before he took federal\noffice. The district court denied the President\xe2\x80\x99s motion to dismiss based on a con\xc2\xad\nstitutional claim of temporary immunity and held that discovery should go for\xc2\xad\nward, but granted a stay of the trial until after the President left office. The court\nof appeals vacated the order staying the trial, while affirming the denial of the\nimmunity-based motion to dismiss. The Supreme Court affirmed, permitting the\ncivil proceedings to go forward against the President while he still held office.\nIn considering the President\xe2\x80\x99s claim of a temporary immunity from suit, the\nCourt first distinguished Nixon v. F itzgerald, maintaining that \xe2\x80\x9c [t]he principal\nrationale for affording certain public servants immunity from suits for money dam\xc2\xad\nages arising out of their official acts is inapplicable to unofficial conduct.\xe2\x80\x9d Clinton\nv. Jones, 520 U.S. at 692-93. The point of immunity for official conduct, the\nCourt explained, is to \xe2\x80\x9c enabl[e] such officials to perform their designated func\xc2\xad\ntions effectively without fear that a particular decision may give rise to personal\nliability.\xe2\x80\x9d Id. at 693. But \xe2\x80\x9c [t]his reasoning provides no support for an immunity\nfor unofficial conduct.\xe2\x80\x9d Id. at 694. Acknowledging F itzg era ld \'%additional concern\nthat \xe2\x80\x9c \xe2\x80\x98[b]ecause of the singular importance of the President\xe2\x80\x99s duties, diversion\nof his energies by concern with private lawsuits would raise unique risks to the\neffective functioning of government,\xe2\x80\x99 \xe2\x80\x9d the Court treated this prior statement as\ndictum because \xe2\x80\x9c [i]n context . . . it is clear that our dominant concern\xe2\x80\x9d had\nbeen the chilling effect that liability for official conduct would impose on the\nPresident\xe2\x80\x99s performance of his official duties. Id. at 694 n.19 (quoting Nixon v.\nF itzg erald, 457 U.S. at 751).\nAfter determining that the historical evidence of the Framers\xe2\x80\x99 understanding\nof presidential immunity was either ambiguous or conflicting and thus could not\nby itself support the extension of presidential immunity to unofficial conduct, see\nid. at 695-97, the Court considered the President\xe2\x80\x99s argument that the \xe2\x80\x9c text and\nstructure\xe2\x80\x9d of the Constitution supported his claim to a temporary immunity. The\nCourt accepted his contention that \xe2\x80\x9c the doctrine of separation of powers places\nlimits on the authority of the Federal Judiciary to interfere with the Executive\nBranch,\xe2\x80\x9d id. at 697-98, and conceded that the powers and obligations conferred\nupon a single President suggest that he occupies a \xe2\x80\x9c \xe2\x80\x98unique position in the con\xc2\xad\nstitutional scheme.\xe2\x80\x99 \xe2\x80\x9d Id. at 698 (quoting N ixon v. F itzgerald, 457 U.S. at 749).\nBut \xe2\x80\x9c [i]t does not follow . . . that separation-of-powers principles would be vio\xc2\xad\nlated by allowing this action to proceed.\xe2\x80\x9d Id. at 699.\nRather than claiming that allowing the civil suit would either aggrandize judicial\npower or narrow any constitutionally defined executive powers, the President\n242\n\n\x0cA Silting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nargued that, as an inevitable result of the litigation, \xe2\x80\x9c burdens will be placed on\nthe President that will hamper the performance of his official duties,\xe2\x80\x9d id. at 701,\nboth in the Jon es case and others that might follow. The Court first rejected the\nfactual premise of the President\xe2\x80\x99s claim, asserting that the President\xe2\x80\x99s \xe2\x80\x9c predictive\njudgment finds little support in either history or the relatively narrow compass\nof the issues raised in this particular case.\xe2\x80\x9d Id. at 702. \xe2\x80\x9c As for the case at hand,\xe2\x80\x9d\nthe Court continued, \xe2\x80\x9c if properly managed by the District Court, it appears to\nus highly unlikely to occupy any substantial amount of petitioner\xe2\x80\x99s time.\xe2\x80\x9d Id.\nThe Court emphasized at the outset that it was not \xe2\x80\x9c confront[ing] the question\nwhether a court may compel the attendance of the President at any specific time\nor place,\xe2\x80\x9d id. at 691, and it \xe2\x80\x9c assume[d] that the testimony of the President, both\nfor discovery and for use at trial, may be taken at the White House at a time\nthat will accommodate his busy schedule, and that, if a trial is held, there would\nbe no necessity for the President to attend in person.\xe2\x80\x9d Id. at 691-92.\nMoreover, the Court explained, \xe2\x80\x9c even quite burdensome interactions\xe2\x80\x9d between\nthe judicial and executive branches do not \xe2\x80\x9c necessarily rise to the level of con\xc2\xad\nstitutionally forbidden impairment of the Executive\xe2\x80\x99s ability to perform its con\xc2\xad\nstitutionally mandated functions.\xe2\x80\x9d Id.; see also id. at 703 ( \xe2\x80\x9c that a federal court\xe2\x80\x99s\nexercise of its traditional Article III jurisdiction may significantly burden the time\nand attention of the Chief Executive is not sufficient to establish a violation of\nthe Constitution\xe2\x80\x9d ). Noting that courts frequently adjudicate civil suits challenging\nthe legality of official presidential actions, the Court also observed that courts\noccasionally have ordered Presidents to provide testimony and documents or other\nmaterials. Id. at 703-05 (citing U nited States v. Nixon as an example). By\ncomparison, the Court asserted, \xe2\x80\x9c [t]he burden on the President\xe2\x80\x99s time and energy\nthat is a mere byproduct of [the power to determine the legality of his unofficial\nconduct through civil litigation] surely cannot be considered as onerous as the\ndirect burden imposed by judicial review and the occasional invalidation of his\nofficial actions.\xe2\x80\x9d Id. at 705.\nFinally, the Court agreed with the court of appeals that the district court abused\nits discretion by invoking its equitable powers to defer any trial until after the\nPresident left office, even while allowing discovery to continue apace. The Court\nobserved that such a \xe2\x80\x9c lengthy and categorical stay takes no account whatever\nof the respondent\xe2\x80\x99s interest in bringing the case to trial,\xe2\x80\x9d id. at 707, in particular\nthe concern that delay \xe2\x80\x9c would increase the danger of prejudice resulting from\nthe loss of evidence, including the inability of witnesses to recall specific facts,\nor the possible death of a party.\xe2\x80\x9d Id. at 707-08. On the other hand, continued\nthe Court, assuming careful trial management, \xe2\x80\x9c there is no reason to assume that\nthe district courts will be either unable to accommodate the President\xe2\x80\x99s [sched\xc2\xad\nuling] needs or unfaithful to the tradition \xe2\x80\x94 especially in matters involving\nnational security \xe2\x80\x94 of giving \xe2\x80\x98the utmost deference to Presidential responsibil\xc2\xad\nities.\xe2\x80\x99 \xe2\x80\x9d Id. at 709 (quoting United States v. Nixon, 418 U.S. at 710-11). On this\n243\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 24\n\nbasis, the Court determined that a stay of any trial pending the President\xe2\x80\x99s leaving\noffice was not supported by equitable principles.16\nB.\nW e believe that these precedents, U nited S tates v. Nixon, N ixon v. F itzgerald,\nand C linton v. Jones, are consistent with the Department\xe2\x80\x99s analysis and conclusion\nin 1973. The cases embrace the methodology, applied in the OLC memorandum,\nof constitutional balancing. That is, they balance the constitutional interests under\xc2\xad\nlying a claim of presidential immunity against the governmental interests in\nrejecting that immunity. And, notwithstanding C linton\'s conclusion that civil\nlitigation regarding the President\xe2\x80\x99s unofficial conduct would not unduly interfere\nwith his ability to perform his constitutionally assigned functions, we believe that\nC linton and the other cases do not undermine our earlier conclusion that the bur\xc2\xad\ndens of crim in al litigation would be so intrusive as to violate the separation of\npowers.\n1.\nThe balancing analysis relied on in the 1973 OLC memorandum has since been\nadopted as the appropriate mode o f analysis by the Court. In 1996, this Office\nsummarized the principles of analysis for resolving separation of powers issues\nfound in the Court\xe2\x80\x99s recent cases. See The C onstitutional Separation o f P ow ers\nB etw een the P resid en t a n d Congress, 20 Op. O.L.C. 124, 133-35 (1996). As noted\nthere, \xe2\x80\x98 \xe2\x80\x98 \xe2\x80\x98the proper inquiry focuses on the extent to which [a challenged act] pre\xc2\xad\n16 One final recent precedent m ents bnef m ention, the federal district court\xe2\x80\x99s decision to hold President Clinton\nin civil contempt for statements made in the course of a deposition taken in the Jones case and to order him to\npay expenses (including attorneys\xe2\x80\x99 fees) to the plaintiff and costs to the court. See Jones i\\ Clinton, 36 F Supp\n2d 1118 (E.D. Ark 1999) This decision was not appealed, and for purposes of our analysis here we assume arguendo\nthat it is correct But a court order cuing a sitting President for civil contempt does not support the proposition\nthat a sitting President can be subject even to cnm inal contempt sanctions, let alone indictment and criminal prosecu\xc2\xad\ntion. Civil contem pt differs from criminal contempt because the former is designed to ensure compliance with court\norders or to remedy harms inflicted upon another litigant, while cnminal contempt is intended to punish the commis\xc2\xad\nsion o f a public w rong See U nited Mine Workers v Bagwell, 512 U.S 821, 826-30 (1994) A civil contempt\nproceeding is thus not likely to be either as consum ing o f the defendant\xe2\x80\x99s tim e or as detnmental to the defendant\xe2\x80\x99s\npublic standing as a criminal contempt proceeding; that is particularly true when the civil contempt sanction takes\nthe form o f an award o f costs to the court or o th er litigant. Significantly, the distnct court that imposed the contempt\ncitation em phasized the narrow scope of its decision. See Jones, 36 F Supp. 2d at 1125 (explaining lhat \xe2\x80\x9c the Court\nrecognizes that significant constitutional issues w ould anse were this Court to impose sanctions against the President\nthat impaired his decision-making or otherwise impaired him in the performance of his official duties,\xe2\x80\x9d and empha\xc2\xad\nsizing that \xe2\x80\x9c [n]o such sanction will be im posed\xe2\x80\x9d ) The court further noted that, while \xe2\x80\x9c the power [upheld by\nthe Supreme Court in Clinton v. Jones] to determ ine the legality o f the President\xe2\x80\x99s unofficial conduct includes with\nit the pow er to issue civil contem pt citations and impose sanctions for his unofficial conduct which abuses the\njudicial process,\xe2\x80\x9d i d , the Supreme Court\xe2\x80\x99s decision did not imply the existence of any authonty to impose cnminal\nsanctions on the President, id. at 1134 n,22 ( \xe2\x80\x9c th e question o f whether a President can be held in criminal contempt\nof court and subjected to criminal penalties raises constitutional issues not addressed by the Supreme Court in the\nJones case\xe2\x80\x9d ) For these reasons, this distnct court decision does not affect our analysis of the soundness of the\nD epartm ent\xe2\x80\x99s 1973 conclusion that it would be unconstitutional to indict or prosecute a President while he remains\nin office\n\n244\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nvents the Executive Branch from accomplishing its constitutionally assigned func\xc2\xad\ntions.\xe2\x80\x99 \xe2\x80\x9d Id. at 133 (quoting A dm inistrator o f G eneral Services, 433 U.S. at 443).\nThe inquiry is complex, because even where the acts of another branch would\ninterfere with the executive\xe2\x80\x99s \xe2\x80\x9c accomplishing its functions,\xe2\x80\x9d this \xe2\x80\x9c would not lead\ninexorably to\xe2\x80\x9d invalidation; rather, the Court \xe2\x80\x9c would proceed to \xe2\x80\x98determine\nwhether that impact is justified by an overriding need to promote\xe2\x80\x99 \xe2\x80\x9d legitimate\ngovernmental objectives. Id. (quoting A dm inistrator o f G eneral Services, 433 U.S.\nat 443).\nThese inquiries formed the basis for the Court\xe2\x80\x99s analysis in U nited S tates v.\nNixon, where the Court employed a balancing test to preserve the opposing\ninterests of the executive and judicial branches with respect to the President\xe2\x80\x99s\nclaim of privilege over confidential communications. The Court\xe2\x80\x99s resort to a bal\xc2\xad\nancing test was quite explicit. See e.g., 418 U.S. at 711-12 (\xe2\x80\x9c In this case we\nmust weigh the importance of the general privilege of confidentiality of Presi\xc2\xad\ndential communications in the performance of the President\xe2\x80\x99s responsibilities\nagainst the inroads of such a privilege on the fair administration of criminal jus\xc2\xad\ntice.\xe2\x80\x9d ). In Nixon v. F itzgerald, the Court\xe2\x80\x99s recognition of an absolute presidential\nimmunity from civil suits for damages concerning official conduct also reflected\na balance of competing interests. As the Court explained, \xe2\x80\x9c [i]t is settled law that\nthe separation-of-powers doctrine does not bar every exercise of jurisdiction over\nthe President of the United States. But our cases also have established that a court,\nbefore exercising jurisdiction, must balance the constitutional weight of the interest\nto be served against the dangers of intrusion on the authority and functions of\nthe Executive Branch.\xe2\x80\x9d 457 U.S. at 753-54. And in Clinton v. Jones, the Court\nagain acknowledged that \xe2\x80\x9c \xe2\x80\x98[e]ven when a branch does not arrogate power to itself\n. . . the separation-of-powers doctrine requires that a branch not impair another\nin the performance of its constitutional duties.\xe2\x80\x99 \xe2\x80\x9d 520 U.S. at 701 (quoting Loving\nv. U nited States, 517 U.S. 748, 757 (1996)).17\nWe now explain why, in light of the post-1973 cases, we agree with the 1973\nconclusions that indicting and prosecuting a sitting President would \xe2\x80\x9c prevent the\nexecutive from accomplishing its constitutional functions\xe2\x80\x9d and that this impact\ncannot \xe2\x80\x9c be justified by an overriding need\xe2\x80\x9d to promote countervailing and legiti\xc2\xad\nmate government objectives.\n17 Although the Court in Clinton v Jones did not explicitly use the language of \xe2\x80\x9c balancing\xe2\x80\x9d to weigh the Presi\xc2\xad\ndent\xe2\x80\x99s interests against those o f the civil litigant, the Court did assess both what it saw as the rather minor disrupuon\nto the President\xe2\x80\x99s office from defending against such civil actions as well as the interests in the pnvate litigant\nin avoiding delay in adjudication See id. at 707-08 In any event, the Court may not have explicitly invoked the\nsecond part o f the analysis (weighing the intrusions on the execuUve branch against the legitimate governmental\ninterests opposed to immunity), because it found the burdens o f civil litigation insufficiently weighty to warrant\nan extended inquiry. See Administrator o f General Services, 433 U.S at 443 (emphasis added) (explaining that\nwhen there is a potential for disruption o f presidential authonty, \xe2\x80\x9c the proper inquiry focuses on the extent to which\nit prevents the Executive Branch from accomplishing its constitutionally assigned funcuons\nOnly where the\npotential fo r disruption is present must we then determine whether that impact is jusufied by an overriding need\nto promote objectives within the constitutional authority o f Congress.\xe2\x80\x9d ), cited with approval in Clinton v Jones,\n520 U.S. at 701\n\n245\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n2.\nThree types of burdens merit consideration: (a) the actual imposition of a\ncriminal sentence of incarceration, which would make it physically impossible\nfor the President to carry out his duties; (b) the public stigma and opprobrium\noccasioned by the initiation of criminal proceedings, which could compromise the\nPresident\xe2\x80\x99s ability to fulfill his constitutionally contemplated leadership role with\nrespect to foreign and domestic affairs; and (c) the mental and physical burdens\nof assisting in the preparation of a defense for the various stages of the criminal\nproceedings, which might severely hamper the President\xe2\x80\x99s performance of his offi\xc2\xad\ncial duties. In assessing the significance of these burdens, two features of our\nconstitutional system must be kept in mind.\nFirst, the Constitution specifies a mechanism for accusing a sitting President\nof wrongdoing and removing him from office. See U.S. Const, art. II, \xc2\xa74 (pro\xc2\xad\nviding for impeachment by the House, and removal from office upon conviction\nin the Senate, of sitting Presidents found guilty of \xe2\x80\x9c Treason, Bribery or other\nhigh Crimes and Misdemeanors\xe2\x80\x9d ). While the impeachment process might also,\nof course, hinder the President\xe2\x80\x99s performance of his duties, the process may be\ninitiated and maintained only by politically accountable legislative officials.\nSupplementing this constitutionally prescribed process by permitting the indict\xc2\xad\nment and criminal prosecution o f a sitting president would place into the hands\nof a single prosecutor and grand jury the practical power to interfere with the\nability of a popularly elected President to carry out his constitutional functions.\nSecond, \xe2\x80\x9c [t]he President occupies a unique position in the constitutional\nscheme.\xe2\x80\x9d F itzgerald, 457 U.S. at 749. As the court explained, \xe2\x80\x9c Article II, \xc2\xa7 1\nof the Constitution provides that \xe2\x80\x98[t]he executive Power shall be vested in a Presi\xc2\xad\ndent of the United States . . . .\xe2\x80\x99 This grant of authority establishes the President\nas the chief constitutional officer of the Executive branch, entrusted with super\xc2\xad\nvisory and policy responsibilities o f utmost discretion and sensitivity.\xe2\x80\x9d Id. at 74950. In addition to the grant of executive power, other provisions of Article II\nmake clear the broad scope and important nature of the powers entrusted to the\nPresident. The President is charged to \xe2\x80\x9c take Care that the Laws be faithfully\nexecuted.\xe2\x80\x9d S ee U.S. Const, art. II, \xc2\xa73. He and the Vice President are the only\nofficials elected by the entire nation. S ee id. art. II, \xc2\xa7 1. He is the sole official\nfor whose temporary disability the Constitution expressly provides procedures to\nremedy. S ee id. art. II, \xc2\xa7 1, cl. 6; id. amend. XXV. He is the Commander in Chief\nof the Army and the Navy. See id. art. II, \xc2\xa72, cl. 2. He has the power to grant\nreprieves and pardons for offenses against the United States. See id. He has the\npower to negotiate treaties and to receive Ambassadors and other public ministers.\nS ee id. art. II, \xc2\xa72, cl. 2. He is the sole representative to foreign nations. He\nappoints all of the \xe2\x80\x9c Judges of the supreme Court\xe2\x80\x9d and the principal officers of\nthe government. See id. art. II, \xc2\xa7 2, cl. 2. He is the only constitutional officer\n246\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nempowered to require opinions from the heads of departments, see id. art. II, \xc2\xa7 2,\ncl. 1, and to recommend legislation to the Congress. See id. art. II, \xc2\xa73. And he\nexercises a constitutional role in the enactment of legislation through the presen\xc2\xad\ntation requirement and veto power. See id. art. I, \xc2\xa7 7, els. 2, 3.\nMoreover, the practical demands on the individual who occupies the Office of\nthe President, particularly in the modem era, are enormous. President Washington\nwrote that \xe2\x80\x9c [t]he duties of my Office * * * at all times * * * require an\nunremitting attention,\xe2\x80\x9d Brief for the United States as Amicus Curiae in Support\nof the Petitioner at 11, Clinton v. Jones, 520 U.S. 681 (1997) (No. 95-1853)\n(quoting Arthur B. Tourtellot, The P residen ts on the P residen cy 348 (1964)). In\nthe two centuries since the Washington Administration, the demands of govern\xc2\xad\nment, and thus of the President\xe2\x80\x99s duties, have grown exponentially. In the words\nof Justice Jackson, \xe2\x80\x9c [i]n drama, magnitude and finality [the President\xe2\x80\x99s] decisions\nso far overshadow any others that almost alone he fills the public eye and ear.\xe2\x80\x9d\nYoungstown Sheet & Tube Co. v. Saw yer, 343 U.S. 579, 653 (1952) (Jackson,\nJ., concurring). In times of peace or war, prosperity or economic crisis, and tran\xc2\xad\nquility or unrest, the President plays an unparalleled role in the execution of the\nlaws, the conduct of foreign relations, and the defense of the Nation. As Justice\nBreyer explained in his opinion concurring in the judgment in Clinton v. Jones\'.\nThe Constitution states that the \xe2\x80\x9c executive Power shall be vested\nin a President.\xe2\x80\x9d Art. II, \xc2\xa7 1. This constitutional delegation means\nthat a sitting President is unusually busy, that his activities have\nan unusually important impact upon the lives of others, and that\nhis conduct embodies an authority bestowed by the entire American\nelectorate. . . . [The Founders] sought to encourage energetic, vig\xc2\xad\norous, decisive, and speedy execution of the laws by placing in\nthe hands of a single, constitutionally indispensable, individual the\nultimate authority that, in respect to the other branches, the Con\xc2\xad\nstitution divides among many.\n520 U.S. at 711-12. The burdens imposed on a sitting President by the initiation\nof criminal proceedings (whether for official or unofficial wrongdoing) therefore\nmust be assessed in light of the Court\xe2\x80\x99s \xe2\x80\x9c long recognition of] the \xe2\x80\x98unique position\nin the constitutional scheme\xe2\x80\x99 that this office occupies.\xe2\x80\x9d Id. at 698 (quoting Nixon\nv. Fitzgerald, 457 U.S. at 749).\na.\nGiven the unique powers granted to and obligations imposed upon the President,\nwe think it is clear that a sitting President may not constitutionally be imprisoned.\nThe physical confinement of the chief executive following a valid conviction\n247\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nwould indisputably preclude the executive branch from performing its constitu\xc2\xad\ntionally assigned functions. As Joseph Story wrote:\nThere are . . . incidental powers, belonging to the executive depart\xc2\xad\nment, which are necessarily implied from the nature of the func\xc2\xad\ntions, which are confided to it. Among these, must necessarily be\nincluded the power to perform them, without any obstruction or\nimpediment whatsoever. T he president cannot, therefore, be liable\nto arrest, imprisonment, or detention, while he is in the discharge\no f the duties of his office . . . .\n3 Joseph Story, Com m entaries on the C onstitution o f the U nited States 418-19\n(1st ed. 1833) ( q u o ted in Nixon v. F itzg era ld , 457 U.S. at 749).18\nTo be sure, the Twenty-fifth Amendment provides that either the President him\xc2\xad\nself, or the Vice-President along with a majority of the executive branch\xe2\x80\x99s prin\xc2\xad\ncipal officers or some other congressionally determined body, may declare that\nthe President is \xe2\x80\x9c unable to discharge the powers and duties of his office,\xe2\x80\x9d with\nthe result that the Vice President assumes the status and powers of Acting Presi\xc2\xad\ndent. See U.S. Const, amend. XXV, \xc2\xa7\xc2\xa7 3, 4. But it is doubtful in the extreme\nthat this Amendment was intended to eliminate or otherwise affect any constitu\xc2\xad\ntional immunities the President enjoyed prior to its enactment. None of the contin\xc2\xad\ngencies discussed by the Framers of the Twenty-fifth Amendment even alluded\nto the possibility of a criminal prosecution of a sitting President.19 O f course,\nit might be argued that the Twenty-fifth Amendment provides a mechanism to\nensuring that, if a sitting President were convicted and imprisoned, there could\n]8See also A lexander M. Bickel, The Constitutional Tangle, The New Republic, Oct 6, 1973, at 14, 15 (\xe2\x80\x9c In\nthe presidency is embodied the continuity an d indestructibility o f the state It is not possible for the government\nto function without a President, and the Constitution contemplates and provides for uninterrupted continuity in that\noffice. Obviously the presidency cannot be conducted from jail, nor can it be effecuvely earned on while an incum\xc2\xad\nbent is defending him self in a cnminal tnal \xe2\x80\x9d ).\n,9 The Framers o f the Twenty-fifth Amendment were prim anly concerned with the possibility that a sitting Presi\xc2\xad\ndent might be unable to discharge his duties due to incapacitation by physical or mental illness See generally\nH earings on Presidential Inability Before th e Subcomm. on Constitutional Amendments o f the Senate Comm on\nthe Judiciary, 88th Cong. (1963), Hearings on Presidential Inability and Vacancies in the Office o f Vice President\nBefore the Subcomm. on Constitutional Amendm ents o f the Senate Comm, on the Judiciary, 88th Cong. (1964);\nH earings on Presidential Inability Before the House Comm on the Judiciary, 89th Cong. (1965), Hearings on Presi\xc2\xad\ndential Inability and Vacancies in the Office o f Vice President Before the Subcomm on Constitutional Amendments\no f the Senate Comm, on the Judiciary, 89th Cong. (1965) ( \xe2\x80\x9c 1965 Senate H eanngs\xe2\x80\x9d ); Selected Materials on the\nTwenty-Fifth Am endment, S. Doc. No 9 3 -4 2 (1973) which includes Senate Reports Nos 89-1382 and 89-66 But\nthe am endm ent\xe2\x80\x99s terms \xe2\x80\x9c unable\xe2\x80\x9d and \xe2\x80\x9c inability\xe2\x80\x9d were not so narrowly defined, apparently out o f a recognition\nthat situations o f inability m ight take vanous forms not neatly falling into categones o f physical or mental illness\nSee, e.g , 1965 Senate H eanngs at 20 ( \xe2\x80\x9c [T ]he intention o f this legislation is to deal with any type of inability,\nw hether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy\nor anything that is imaginable. The inability to perform the powers and duties of the office, for any reason is inability\nunder the terms lhat we are discussing \xe2\x80\x9d ) (statement o f Sen Bayh); John D Feerick, The Twenty-fifth Amendment\n197 (1976) ( \xe2\x80\x9c A lthough the terms \xe2\x80\x98unable\xe2\x80\x99 an d \xe2\x80\x98inability* are nowhere defined in either Section 3 or 4 of the Amend\xc2\xad\nment (or in Article II), this was not the result o f an oversight. Rather, it reflected a judgm ent that a ngid constitutional\ndefinition was undesirable, since cases of inability could take vanous forms not neatly fitting into such a definition.\xe2\x80\x9d ).\nThus, while imprisonment appears not to have been expressly considered by the Framers as a form of inability,\nthe language o f the Twenty-fifth Amendment might be read broadly enough to encompass such a possibility\n\n248\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nbe a transfer of powers to an Acting President rather than a permanent disabling\nof the executive branch. But the possibility of Vice-Presidential succession\n\xe2\x80\x9c hardly constitutes an argument in favor of allowing other branches to take\nactions that would disable the sitting President.\xe2\x80\x9d 20 To rationalize the President\xe2\x80\x99s\nimprisonment on the ground that he can be succeeded by an \xe2\x80\x9c Acting\xe2\x80\x9d replace\xc2\xad\nment, moreover, is to give insufficient weight to the people\xe2\x80\x99s considered choice\nas to whom they wish to serve as their chief executive, and to the availability\nof a politically accountable process of impeachment and removal from office for\na President who has engaged in serious criminal misconduct.21 While the execu\xc2\xad\ntive branch would continue to function (albeit after a period of serious dislocation),\nit would still not do so as the people intended, with their elected President at\nthe helm.22 Thus, we conclude that the Twenty-fifth Amendment should not be\nunderstood sub silentio to withdraw a previously established immunity and\nauthorize the imprisonment of a sitting President.\nb.\nPutting aside the possibility of criminal confinement during his term in office,\nthe severity of the burden imposed upon the President by the stigma arising both\nfrom the initiation of a criminal prosecution and also from the need to respond\nto such charges through the judicial process would seriously interfere with his\nability to carry out his constitutionally assigned functions. To be sure, in Clinton\nv. Jones the Supreme Court rejected the argument that a sitting President is con\xc2\xad\nstitutionally immune from civil suits seeking damages for unofficial misconduct.\nBut the distinctive and serious stigma of indictment and criminal prosecution\nimposes burdens fundamentally different in kind from those imposed by the initi\xc2\xad\nation of a civil action, and these burdens threaten the President\xe2\x80\x99s ability to act\nas the Nation\xe2\x80\x99s leader in both the domestic and foreign spheres. C linton\xe2\x80\x99s rea\xc2\xad\nsoning does not extend to the question whether a sitting President is constitu\xc2\xad\ntionally immune from criminal prosecution; nor does it undermine our conclusion\nthat a proper balancing of constitutional interests in the criminal context dictates\na presidential immunity from such prosecution.\n20 1 Laurence H. Tnbe, American Constitutional Law \xc2\xa74 -1 4 , al 755 n.5 (3rd ed. 2000)\n21 If the President resists the conclusion that he is \xe2\x80\x9c unable\xe2\x80\x9d to discharge his public duties, a transition o f power\nto the Vice President as Acting President depends on the concurrence o f both Houses of Congress by a two-thirds\nvote But this ultimate congressional decision does not transform the process into a politically accountable one akin\nto impeachment proceedings, for the situation forcing Congress\xe2\x80\x99s hand would have been triggered by the decision\no f a single prosecutor and unaccountable grand jury to initiate and pursue the cnminal proceedings in the first\nplace\n22 Although we do not consider here whether an elected President loses his immunity from criminal prosecution\nif and while he is temporarily dispossessed of his presidential authonty under either \xc2\xa73 or \xc2\xa7 4 o f the Twenty-fifth\nAmendment, structural considerations suggest that an elected President remains immune from cnm inal prosecution\nuntil he permanently leaves the Office by the expiration o f his term, resignation, or removal through conviction\nupon impeachment\n\n249\n\n\x0cOpinions of the Office o f Legal Counsel m Volume 24\n\nThe greater seriousness of criminal as compared to civil charges has deep roots\nnot only in the Constitution but also in its common law antecedents. Blackstone\ndistinguished between criminal and civil liability by describing the former as a\nremedy for \xe2\x80\x9c public wrongs\xe2\x80\x9d and the latter as a response to \xe2\x80\x9c private wrongs.\xe2\x80\x9d\n4 William Blackstone, C om m entaries *5. As he explained, \xe2\x80\x9c [t]he distinction of\npublic wrongs from private, of crimes and misdemeanors from civil injuries, seems\nprincipally to consist in this: that private wrongs, or civil injuries, are an infringe\xc2\xad\nment or privation of the civil rights which belong to individuals, considered merely\nas individuals; public wrongs, or crimes and misdemeanors, are a breach and vio\xc2\xad\nlation of the public rights and duties due to the whole community, considered\nas a community, in its social aggregate capacity.\xe2\x80\x9d Id. This fundamental distinction\nexplains why a criminal prosecution may proceed without the consent of the\nvictim and why it is brought in the name of the sovereign rather than the person\nimmediately injured by the wrong. The peculiar public opprobrium and stigma\nthat attach to criminal proceedings also explain, in part, why the Constitution pro\xc2\xad\nvides in Article III for a right to a trial by jury for all federal crimes, see Lew is\nv. U n ited S tates, 518 U.S. 322, 334 (1996) (Kennedy, J. concurring), and provides\nin the Sixth Amendment for a \xe2\x80\x9c speedy and public trial,\xe2\x80\x9d U.S. Const, amend.\nVI, see K lo p fe r v. N orth Carolina, 386 U.S. 213, 222 (1967) (pendency of an\nindictment \xe2\x80\x9c may subject [the defendant] to public scorn\xe2\x80\x9d and \xe2\x80\x9c indefinitely\nprolong[ j this oppression, as well as the \xe2\x80\x98anxiety and concern accompanying\npublic accusation\xe2\x80\x99 \xe2\x80\x9d ) (citation omitted).23\nThe magnitude of this stigma and suspicion, and its likely effect on presidential\nrespect and stature both here and abroad, cannot fairly be analogized to that caused\nby initiation of a private civil action. A civil complaint filed by a private person\nis understood as reflecting one person\xe2\x80\x99s allegations, filed in court upon payment\nof a filing fee. A criminal indictment, by contrast, is a public rather than private\nallegation of wrongdoing reflecting the official judgment of a grand jury acting\nunder the general supervision of the District Court. Thus, both the ease and public\nmeaning of a civil filing differ substantially from those of a criminal indictment.\nCf. F D IC v. M allen , 486 U.S. 230, 243 (1988) (\xe2\x80\x9c Through the return of the indict\xc2\xad\nment, the Government has already accused the appellee of serious wrong\xc2\xad\ndoing.\xe2\x80\x9d ).24 Indictment alone risks visiting upon the President the disabilities that\n23 In K lopfer, the Supreme Court held that the Sixth Amendment right to a speedy tnal is violated by the practice\no f having a prosecutor indefinitely suspend a prosecution after a grand jury returns an indictment. One of the purposes\no f the speedy tnal nght is to enable the defendant to be freed, as promptly as reasonably possible, from the \xe2\x80\x9c disabling\ncloud o f doubt and anxiety that an overhanging indictment invanably cam es with it \xe2\x80\x9d 1 Laurence H Tnbe, American\nConstitutional Law \xc2\xa7 4 -1 4 , at 756. Cf In re Winship, 397 U.S. 358, 363 (1970) (\xe2\x80\x9c The accused during a cnminal\nprosecution has at stake interests o f immense importance, both because of the possibility that he may lose his liberty\nupon conviction and because o f the certainty that he would be stigmatized by the conviction \xe2\x80\x9d ).\n24 In M allen, for example, the Court rejected a due process challenge to a statute authorizing the immediate suspen\xc2\xad\nsion for up to 90 days, without a pre-suspension hearing, of a bank officer or director who is indicted for a felony\ninvolving dishonesty or breach o f trust. In describing the significance of indictment for purposes of the due process\ncalculus, the Court observed as follows\nThe returning o f the indictment establishes that an independent body has determined that there is probable\ncause to believe that the officer has committed a crime\nThis finding is relevant in at least two\n\n250\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nstem from the stigma and opprobrium associated with a criminal charge, under\xc2\xad\nmining the President\xe2\x80\x99s leadership and efficacy both here and abroad. Initiation\nof a criminal proceeding against a sitting President is likely to pose a far greater\nthreat than does civil litigation of severely damaging the President\xe2\x80\x99s standing and\ncredibility in the national and international communities. While this burden may\nbe intangible, nothing in the Supreme Court\xe2\x80\x99s recent case law draws into question\nthe Department\xe2\x80\x99s previous judgment that \xe2\x80\x9c to wound [the President] by a criminal\nproceeding is to hamstring the operation of the whole governmental apparatus,\nboth in foreign and domestic affairs.\xe2\x80\x9d OLC Memo at 30.\nc.\nOnce criminal charges are filed, the burdens of responding to those charges\nare different in kind and far greater in degree than those of responding to civil\nlitigation. The Court in Clinton v. Jones clearly believed that the process of\ndefending himself in civil litigation would not impose unwieldy burdens on the\nPresident\xe2\x80\x99s time and energy. The Court noted that \xe2\x80\x9c [m]ost frivolous and vexatious\nlitigation is terminated at the pleading stage or on summary judgment, with little\nif any personal involvement of the defendant.\xe2\x80\x9d 520 U.S. at 708. Moreover, even\nif the litigation proceeds all the way to trial, the Court explicitly assumed that\n\xe2\x80\x9c there would be no necessity for the President to attend in person, though he\ncould elect to do so.\xe2\x80\x9d Id. at 692.\nThese statements are palpably inapposite to criminal cases. The constitutional\nprovisions governing criminal prosecutions make clear the Framers\xe2\x80\x99 belief that\nan individual\xe2\x80\x99s mental and physical involvement and assistance in the preparation\nof his defense both before and during any criminal trial would be intense, no\nless so for the President than for any other defendant. The Constitution con\xc2\xad\ntemplates the defendant\xe2\x80\x99s attendance at trial and, indeed, secures his right to be\npresent by ensuring his right to confront witnesses who appear at the trial. See\nU.S. Const, amend. VI; Illinois v. Allen , 397 U.S. 337, 338 (i970) (\xe2\x80\x9c One of\nthe most basic of the rights guaranteed by the Confrontation Clause is the\naccused\xe2\x80\x99s right to be present in the courtroom at every stage of his trial.\xe2\x80\x9d ); see\na lso Fed. R. Crim. P. 43(a); U nited States v. G agnon, 470 U.S. 522, 526 (1985)\n(Due Process Clause also protects right to be present). The Constitution also\nguarantees the defendant a right to counsel, which is itself premised on the defend\xc2\xad\nant\xe2\x80\x99s ability to communicate with such counsel and assist in the preparation of\n\nimportant ways First, the finding o f probable cause by an independent body demonstrates that the suspen\xc2\xad\nsion is not arbitrary Second, the return of the indictment itself is an objective fact that will in most cases\nraise serious public concern that the bank is not being managed in a responsible manner.\n486 U S at 244-45.\n\n251\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nhis own defense. S ee U.S. Const, amend. VI.25 These protections stand in stark\ncontrast to the Constitution\xe2\x80\x99s relative silence as to the rights of parties in civil\nproceedings, and they underscore the unique mental and physical burdens that\nwould be placed on a President facing criminal charges and attempting to fend\noff conviction and punishment. These burdens inhere not merely in the actual\ntrial itself, but also in the substantial preparation a criminal trial demands.\nIt cannot be said of a felony criminal trial, as the Court said of the civil action\nbefore it in C linton v. Jones, that such a proceeding, \xe2\x80\x9c if properly managed by\nthe District Court, . . . [is] highly unlikely to occupy any substantial amount of\npetitioner\xe2\x80\x99s time.\xe2\x80\x9d Clinton, 520 U.S. at 702.26 The Court there emphasized the\nmany ways in which a district court adjudicating a civil action against the Presi\xc2\xad\ndent could and should use flexibility in scheduling so as to accommodate the\ndemands of the President\xe2\x80\x99s constitutionally assigned functions on his time and\nenergy. S ee id. at 706 (noting that a district court \xe2\x80\x9c has broad discretion to stay\nproceedings as an incident to its power to control its own docket\xe2\x80\x9d ).27 The Court\nexplicitly \xe2\x80\x9c assume[d] that the testimony of the President, both for discovery and\nfor use at trial, may be taken at the White House at a time that will accommodate\nhis busy schedule.\xe2\x80\x9d Id. at 691\xe2\x80\x9492. The Court thus concluded that \xe2\x80\x9c [a] 1though\nscheduling problems may arise, there is no reason to assume that the district courts\nwill be . . . unable to accommodate the President\xe2\x80\x99s needs.\xe2\x80\x9d Id. at 709.28\nAlthough the Court determined in Clinton v. Jones that \xe2\x80\x9c [t]he fact that a federal\ncourt\xe2\x80\x99s exercise of its traditional Article III jurisdiction may significantly burden\nthe time and attention of the chief Executive is not sufficient to establish a viola\xc2\xad\ntion o f the Constitution,\xe2\x80\x9d 520 U.S. at 703, this determination must be understood\nin light of the Court\xe2\x80\x99s own characterizations o f the manageable burdens imposed\n25 In theory, o f course, the President could decline to appear at his own criminal tnal, notwithstanding the strong\nAnglo-American tradition against trials in absentia But availability of this option says little about the constitutional\nissue, there is no evidence that the Framers intended that the President waive an entire panoply of constitutional\nguarantees and n sk conviction in order to fulfill his public obligations.\n26W ith respect specifically to concerns about mental preoccupation, the Court in Clinton v. Jones \xe2\x80\x9c recogmze[d]\nthat a President, like any other official or private citizen, may become distracted or preoccupied by pending litiga\xc2\xad\ntion,\xe2\x80\x9d 520 U.S at 705 n.40, but likened this distraction to other \xe2\x80\x9c vexing\xe2\x80\x9d distractions caused by \xe2\x80\x9c a variety of\ndemands on their time, . . . som e pnvate, som e political, and some as a result of official duty.\xe2\x80\x9d Id As a \xe2\x80\x9c predictive\njudgm ent,\xe2\x80\x9d id. at 702, however, the level o f mental preoccupation entailed by a threat of criminal conviction and\nimprisonment would likely far exceed that entailed by a private civil action\n27 In his opinion concurring in the judgment, Justice Breyer further emphasized the C ourt\xe2\x80\x99s assumptions with\nrespect to the scheduling flexibility properly due the President by the district court He explained that he agreed\n\xe2\x80\x9c with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits\nbased upon his private conduct \xe2\x80\x9d 520 U S. at 710. Nevertheless, he emphasized that\nonce the President sets forth and explains a conflict between judicial proceeding and public duties, the\nm atter changes A t that point, the Constitution permits a judge to schedule a tnal in an ordinary civil\ndamages action (where postponement normally is possible without overwhelming damage to a plaintiff)\nonly within the constraints o f a constitutional principle \xe2\x80\x94 a principle lhat forbids a federal judge in such\na case to interfere with the President\xe2\x80\x99s discharge o f his public duties.\nId.\n28 The Court added that, \xe2\x80\x9c [although Presidents have responded to written interrogatories, given depositions, and\nprovided videotaped tn al testimony, no sitting President has ever testified, or been ordered to testify, in open court \xe2\x80\x9d\nId. at 692 n 14. In cnrrunal litigation, as compared to civil litigation, however, the presence of the accused is a\nsina qua non o f a valid trial, absent extraordinary circumstance.\n\n252\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\nby civil litigation. By contrast, criminal proceedings do not allow for the flexibility\nin scheduling and procedures upon which Clinton v. Jones relied. Although the\nCourt emphasized that \xe2\x80\x9c our decision rejecting the immunity claim and allowing\nthe case to proceed does not require us to confront the question whether a court\nmay compel the attendance of the President at any specific time or place,\xe2\x80\x9d id.\nat 691, a criminal prosecution would require the President\xe2\x80\x99s personal attention\nand attendance at specific times and places, because the burdens of criminal\ndefense are much less amenable to mitigation by skillful trial management. Indeed,\nconstitutional rights and values are at stake in the defendant\xe2\x80\x99s ability to be present\nfor all phases of his criminal trial. For the President to maintain the kind of effec\xc2\xad\ntive defense the Constitution contemplates, his personal appearance throughout\nthe duration of a criminal trial could be essential. Yet the Department has consist\xc2\xad\nently viewed the requirement that a sitting President personally appear at a trial\nat a particular time and place in response to judicial process to raise substantial\nseparation of powers concerns. See Memorandum for Arthur B. Culvahouse, Jr.,\nCounsel to the President, from Douglas W. Kmiec, Assistant Attorney General,\nOffice of Legal Counsel, Re: C onstitutional C oncerns Im plicated b y D em an d f o r\nP residen tial E vidence in a C rim inal Prosecution (Oct. 17, 1988).29\nIn contrast to ordinary civil litigation, moreover, which the Court in Clinton\nv. Jones described as allowing the trial court to minimize disruptions to the Presi\xc2\xad\ndent\xe2\x80\x99s schedule, the Sixth Amendment\xe2\x80\x99s guarantee to criminal defendants of a\n\xe2\x80\x9c speedy and public trial,\xe2\x80\x9d U.S. Const, amend. VI, circumscribes the trial court\xe2\x80\x99s\nflexibility. Once a defendant is indicted, his right to a speedy trial comes into\nplay. See U nited States v. M arion, 404 U.S. 307 (1971) (defendant\xe2\x80\x99s speedy trial\nright is triggered when he is \xe2\x80\x9c accused\xe2\x80\x9d by being indicted). In addition, under\nthe federal Speedy Trial Act, the trial judge\xe2\x80\x99s discretion is constrained in order\nto meet the statutory speedy trial deadlines. See 18 U.S.C. \xc2\xa7\xc2\xa73161-3174 (1994).\nWhile a defendant may waive his speedy trial rights, it would be a peculiar con\xc2\xad\nstitutional argument to say that the President\xe2\x80\x99s ability to perform his constitutional\n29 The Kmiec memorandum explained that \xe2\x80\x9c it has been the rule since the Presidency of Thomas Jefferson lhat\na judicial subpoena in a criminal case may be issued to the President, and any challenge to the subpoena must\nbe based on the nature o f the information sought rather than any immunity from process belonging to the President \xe2\x80\x9d\nSee Memorandum for Arthur B Culvahouse, Jr., Counsel to the President, from Douglas W Kmiec, Assistant\nAttorney General, Office o f Legal Counsel, Re Constitutional Concerns Implicated by Demand fo r Presidential\nEvidence in a Criminal Prosecution at 2 (Oct. 17, 1988). However, the memorandum proceeded to explain,\n\xe2\x80\x9c (although there are no judicial opinions squarely on point, historical precedent has clearly established that sitting\nPresidents are not required to testify in person at cnminal trials.\xe2\x80\x9d Id. at 3 (reviewing precedents) The memorandum\nnoted in particular that Attorney General Wirt had advised President Monroe in 1818 that \xe2\x80\x9c [a] subpoena ad\ntestificandum may I think be properly awarded to the President o f the U.S .\nBut if the presence o f the chief\nmagistrate be required at the seat o f government by his official duties, I think those duties paramount to any claim\nwhich an individual can have upon him, and that his personal attendance on the court from which the summons\nproceeds ought to be, and must, o f necessity, be dispensed with .\n11 Id at 4 (quoting Opinion of Attorney\nGeneral Wirt, January 13, 1818, quoted in Ronald D. Rotunda, Presidents and Ex-Presidents as Witnesses. A B n e f\nHistorical Footnote," 1975 U. Ill L. F. J, 6) The memorandum concluded that \xe2\x80\x9c the controlling pnnciple that\nemerges from the histoncal precedents is that a sitting President may not be required to testify in court at a criminal\ntnal because his presence is required elsewhere for his \xe2\x80\x98official duties\xe2\x80\x99 \xe2\x80\x94 or, in the vernacular of the time, required\nat \xe2\x80\x98the seat o f government.\xe2\x80\x99 \xe2\x80\x9c Id at 6 (citations and footnote omitted).\n\n253\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nduties should not be considered unduly disrupted by a criminal trial merely\nbecause the President could, in theory, waive his personal constitutional right to\na speedy trial. The Constitution should not lightly be read to put its Chief Execu\xc2\xad\ntive officer to such a choice.\nIn sum, unlike private civil actions for damages \xe2\x80\x94 or the two other judicial proc\xc2\xad\nesses with which such actions were compared in Clinton v. Jones (subpoenas for\ndocuments or testimony and judicial review and occasional invalidation of the\nPresident\xe2\x80\x99s official acts, see 520 U.S. at 703-05) \xe2\x80\x94 criminal litigation uniquely\nrequires the President\xe2\x80\x99s person al time and energy, and will inevitably entail a\nconsiderable if not overwhelming degree o f mental preoccupation.30 Indictment\nalso exposes the President to an official pronouncement that there is probable\ncause to believe he committed a criminal act, see, e.g., U nited S tates v. R. E n ter\xc2\xad\np rises, Inc., 498 U.S. 292, 297-98 (1991), impairing his credibility in carrying\nout his constitutional responsibilities to \xe2\x80\x9c take Care that the Laws be faithfully\nexecuted,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3, and to speak as the \xe2\x80\x9c sole organ\xe2\x80\x9d of the United\nStates in dealing with foreign nations. U nited States v. C urtiss-W right E xport\nC o rp., 299 U.S. 304, 319-20 (1936); see a lso C hicago & Southern A ir Lines\nv. W aterm an S.S. C orp., 333 U.S. 103, 111 (1948) (describing the President \xe2\x80\x9c as\nthe Nation\xe2\x80\x99s organ for foreign affairs\xe2\x80\x9d ); U nited States v. Louisiana, 363 U.S. 1,\n35 (1960) (\xe2\x80\x9c The President . . . is the constitutional representative of the United\nStates in its dealings with foreign nations.\xe2\x80\x9d ). These physical and mental burdens\nimposed by an indictment and criminal prosecution of a sitting President are of\nan entirely different magnitude than those imposed by the types of judicial process\npreviously upheld by the Court.\nIt is conceivable that, in a particular set of circumstances, a particular criminal\ncharge will not in fact require so much time and energy of a sitting President\nso as materially to impede the capacity of the executive branch to perform its\nconstitutionally assigned functions. It would be perilous, however, to make a judg\xc2\xad\nment in advance as to whether a particular criminal prosecution would be a case\no f this sort. Thus a categorical rule against indictment or criminal prosecution\nis most consistent with the constitutional structure, rather than a doctrinal test\nthat would require the court to assess whether a particular criminal proceeding\nis likely to impose serious burdens upon the President.31\n30 W hile illustrating the potentially burdensome nature o f judicial review o f Presidential acts with the \xe2\x80\x9c most dra\xc2\xad\nmatic exam ple\xe2\x80\x9d o f Youngstown Sheet & Tube Co. v Sawyer, 343 U S 579 (1952) (invalidating President Trum an\xe2\x80\x99s\norder directing the seizure and operation of steel mills), the Court mentioned \xe2\x80\x9c the substantial time that the President\nmust necessarily have devoted to the matter as a result of judicial involvement \xe2\x80\x9d Clinton v Jones, 520 U S at\n703. O f course, it is most frequently the case that the President spends little or no time personally engaged in\nsuch confrontations, with the task o f defending hjs policies in court falling to subordinate executive branch officials\nSee, e g ., M aeva Marcus, Truman and the S teel Seizure Case 102-77 (1977) (describing in detail Department of\nJustice attorneys\xe2\x80\x99 involvement in the steel seizure litigation w ithout discussing any role played personally in the\nlitigation by President Truman). Such a routine delegation o f responsibilities is unavailable when the President person\xc2\xad\nally faces cnm inal charges\n31 Cf. Clinton v Jones, 520 U.S at 706 ( \xe2\x80\x9c Indeed, if the Framers of the Constitution had thought it necessary\nto protect the President from the burdens of private litigation, we think it far more likely that they would have\n\n254\n\n\x0cA Sitting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\n3.\nHaving identified the burdens imposed by indictment and criminal prosecution\non the President\xe2\x80\x99s ability to perform his constitutionally assigned functions, we\nmust still consider whether these burdens are \xe2\x80\x9cjustified by an overriding need\nto promote\xe2\x80\x9d legitimate governmental objectives, Administrator o f General Serv\xc2\xad\nices, 433 U.S. at 443, in this case the expeditious initiation of criminal pro\xc2\xad\nceedings. United States v. Nixon underscored the legitimacy and importance of\nfacilitating criminal proceedings in general. Although Nixon did not address the\ninterest in facilitating criminal proceedings against the President, it is fair to say\nthat there exists an important national interest in ensuring that no person \xe2\x80\x94\nincluding the President \xe2\x80\x94 is above the law. Clinton v. Jones underscored the legit\xc2\xad\nimacy and importance of allowing civil proceedings against the President for\nunofficial misconduct to go forward without undue delay. Nevertheless, after\nweighing the interests in facilitating immediate criminal prosecution of a sitting\nPresident against the interests underlying temporary immunity from such prosecu\xc2\xad\ntion, considered in light of alternative means of securing the rule of law, we adhere\nto our 1973 determination that the balance of competing interests requires recogni\xc2\xad\ntion of a presidential immunity from criminal process.\nRecognizing an immunity from prosecution for a sitting President would not\npreclude such prosecution once the President\xe2\x80\x99s term is over or he is otherwise\nremoved from office by resignation or impeachment.32 The relevant question,\ntherefore, is the nature and strength of any governmental interests in immediate\nprosecution and punishment.\nWith respect to immediate punishment, the legitimate objectives of retribution\nand specific deterrence underlying the criminal justice system compete against\na recognition of presidential immunity from penal incarceration. The obvious and\noverwhelming burdens that such incarceration would impose on the President\xe2\x80\x99s\nability to perform his constitutionally assigned functions, however, clearly support\nthe conclusion that a sitting President may not constitutionally be imprisoned upon\na criminal conviction. See supra note 18 and accompanying text. The public\xe2\x80\x99s\ngeneral interest in retribution and deterrence does not provide an \xe2\x80\x9c overriding\nneed\xe2\x80\x9d for immediate as opposed to deferred incarceration.\nWith respect to immediate prosecution, we can identify three other govern\xc2\xad\nmental interests that might be impaired by deferring indictment and prosecution\nadopted a categorical rule than a rule that required the President to litigate the question whether a specific case\nbelonged in the \xe2\x80\x98exceptional case\xe2\x80\x99 subcategory \xe2\x80\x9d )\n32 The temporary nature o f the immunity claimed here distinguishes it from that pressed in Nvcon v. Fitzgerald,\nwhich established a permanent immunity from civil suits challenging official conduct. The temporary immunity\nconsidered here is also distinguishable from that pressed by the President but rejected in United States v. Nixon,\nsince the claim o f executive privilege justifying the withholding o f evidence relevant to the criminal prosecution\nof other persons would apparently have suppressed the evidence without any identifiable time limitation The asserted\nprivilege might therefore have forever thwarted the public\xe2\x80\x99s interest in enforcing its cnminal laws See United States\nv. Nixon, 418 U.S at 713 ( \xe2\x80\x9c Without access to specific facts a cnminal prosecution may be totally frustrated.\xe2\x80\x9d ).\n\n255\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nuntil after the accused no longer holds the office of President: (1) avoiding the\nbar o f a statute of limitations; (2) avoiding the weakening of the prosecution\xe2\x80\x99s\ncase due to the passage of time; and (3) upholding the rule of law. We consider\neach of these in turn.\nThe interest in avoiding the statute of limitations bar by securing an indictment\nwhile the President remains sitting is a legitimate one. However, we do not believe\nit is of significant constitutional weight when compared with the burdens such\nan indictment would impose on the Office of the President, especially in light\nof alternative mechanisms to avoid a time-bar. First, a President suspected of the\nmost serious criminal wrongdoing might well face impeachment and removal from\noffice before his term expired, permitting criminal prosecution at that point.\nSecond, whether or not it would be appropriate for a court to hold that the statute\nof limitations was tolled while the President remained in office (either as a con\xc2\xad\nstitutional implication of temporary immunity or under equitable principles33),\nCongress could overcome any such obstacle by imposing its own tolling rule.34\nAt most, therefore, prosecution would be delayed rather than denied.\nApart from concern over statutes of limitations, we recognize that a presidential\nimmunity from criminal prosecution could substantially delay the prosecution of\na sitting President, and thereby make it more difficult for the ultimate prosecution\nto succeed.35 In Clinton v. Jones, the Court observed that \xe2\x80\x94 notwithstanding the\ncontinuation of civil discovery \xe2\x80\x94 \xe2\x80\x9c delaying trial would increase the danger of\nprejudice resulting from the loss of evidence, including the inability of witnesses\nto recall specific facts, or the possible death of a party.\xe2\x80\x9d 520 U.S. at 707-08.\n33 Federal courts have suggested that, in proper circumstances, criminal as well as civil statutes of limitation are\nsubject to equitable tolling. See, e .g , United States v. Midgtey, 142 F.3d 174, 178-79 (3d Cir 1998) ( \xe2\x80\x9c Although\nthe doctrine o f equitable tolling is most typically applied to limitation penods on civil actions, there is no reason\nto distinguish between the nghts protected by criminal and civil statutes of limitations.\xe2\x80\x9d ) (internal quotation omitted);\nc f United States v. Levine, 658 F.2d 113, 119-21 (3d C ir 1981) (noting that cnminal statutes of limitations have\na primary purpose o f providing fairness to the accused, but are \xe2\x80\x9c perhaps not inviolable\xe2\x80\x9d and are subject to tolling,\nsuspension, and waiver). Equitable tolling, however, is invoked only spanngly, in the \xe2\x80\x9c rare situation where [it]\nis demanded by sound legal principles as well as the interests o f justice \xe2\x80\x9d Alvarez-Machain v. United States, 107\nF 3d 696, 701 (9th Cir 1996) (tolling two-year limitation period for FTCA actions where plaintiff had been incarcer\xc2\xad\nated for two years)\n34 See, e.g , 18 U S C. \xc2\xa7 3287 (1994) (suspension of cnminal statutes of limitation for certain fraud offenses against\nthe United States until three years after the termination o f hostilities); United States v. Grainger, 346 U.S 235\n(1953) (applying this statutory suspension). W e believe Congress denves such authonty from its general power to\n\xe2\x80\x9c make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested\nby this Constitution in the Government of the United States, or in any Department or Officer thereof.\xe2\x80\x9d U S Const,\nart I, \xc2\xa7 8 , cl. 18. Cf. Clinton v. Jones, 520 U .S. at 709 (\xe2\x80\x9c If Congress deems it appropriate to afford the President\nstronger protection, it may respond with appropriate legislation.\xe2\x80\x9d ). Indeed, without deciding the question, we note\nthat Congress may have pow er to enact a tolling provision governing the statute of limitations for conduct that\nhas already occurred, at least so long as the onginal statutory penod has not already expired C f United States\nv. Pow ers, 307 U S . 214 (1939) (rejecung Ex Post Facto challenge to a prosecution based on a statute extending\nthe life o f a temporary cnm inal statute before its original expiration date); c f, e.g., United States v Grimes, 142\nF.3d 1342, 1350-51 (1 1th Cir. 1998) (collecting decisions rejecting Ex Post Facto challenges to statutes extending\nthe limitations period as applied to conduct for which the original penod had not already run), cert denied, 525\nU S. 1088 (1999)\n35 In theory, the delay could be as long as 10 years, for a President who onginally assumes the office through\nascension rather than election and then fiilly serves two elected terms. See U S. Const, amend. XXII, \xc2\xa7 1 Given\nquadrennial elections and the possibility of impeachment, however, it seems unlikely that a President who is senously\nsuspected o f grave cnm inal wrongdoing would rem ain in office for that length of time\n\n256\n\n\x0cA Sitting President\xe2\x80\x99s Amenability to Indictment and Criminal Prosecution\n\nThe Court considered this potential for prejudice to weigh against recognition of\ntemporary immunity from civil process. We believe that the costs of delay in\nthe criminal context may differ in both degree and kind from delay in the civil\ncontext.36 But in any event it is our considered view that, when balanced against\nthe overwhelming cost and substantial interference with the functioning of an\nentire branch of government, these potential costs of delay, while significant, are\nnot controlling. In the constitutional balance, the potential for prejudice caused\nby delay fails to provide an \xe2\x80\x9c overriding need\xe2\x80\x9d sufficient to overcome the jus\xc2\xad\ntification for temporary immunity from criminal prosecution.\nFinally, recognizing a temporary immunity would not subvert the important\ninterest in maintaining the \xe2\x80\x9c rule of law.\xe2\x80\x9d To be sure, as the Court has emphasized,\n\xe2\x80\x9c [n]o man in this country is so high that he is above the law.\xe2\x80\x9d United States\nv. Lee , 106 U.S. 196, 220 (1882). Moreover, the complainant here is the Govern\xc2\xad\nment seeking to redress an alleged crime against the public rather than a private\nperson seeking compensation for a personal wrong, and the Court suggested in\nNixon v. Fitzgerald that \xe2\x80\x9c there is a lesser public interest in actions for civil dam\xc2\xad\nages than, for example, in criminal prosecutions,\xe2\x80\x9d 457 U.S. at 754 n.37; see id.\n(describing United States v. Nixon as \xe2\x80\x9c basing holding on special importance of\nevidence in a criminal trial and distinguishing civil actions as raising different\nquestions not presented for decision\xe2\x80\x9d ). However, unlike the immunities claimed\nin both Nixon cases, see supra note 32, the immunity from indictment and criminal\nprosecution for a sitting President would generally result in the delay, but not\nthe forbearance, of any criminal trial. Moreover, the constitutionally specified\nimpeachment process ensures that the immunity would not place the President\n\xe2\x80\x9c above the law.\xe2\x80\x9d A sitting President who engages in criminal behavior falling\ninto the category of \xe2\x80\x9c high Crimes and Misdemeanors,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa74,\nis always subject to removal from office upon impeachment by the House and\nconviction by the Senate, and is thereafter subject to criminal prosecution.\n4.\nWe recognize that invoking the impeachment process itself threatens to\nencumber a sitting President\xe2\x80\x99s time and energy and to divert his attention from\n36 On the one hand, there may be less reason to fear a prejudicial loss of evidence in the cnminal context A\ngrand jury could continue to gather evidence throughout the penod o f immunity, even passing this task down to\nsubsequently empaneled grand juries if necessary. See Fed. R. C nm . P 6(e)(3)(C)(m) Moreover, in the event of\nsuspicion of senous wrongdoing by a sitting President, the media and even Congress (through its own investigatory\npowers) would likely pursue, collect and preserve evidence as well These multiple mechanisms for securing and\npreserving evidence could mitigate somewhat the effect of a particular witness\xe2\x80\x99s failed recollection or demise By\ncontrast, many civil litigants would lack the resources and incentives to pursue and preserve evidence in the same\ncomprehensive manner\nOn the other hand, the consequences of any prejudicial loss o f evidence that does occur in the cnminaJ context\nare more grave, given the presumptively greater stakes for both the United States and the defendant in criminal\nlitigation See United States v Nixon, 418 U S at 711-13, 713 (in emphasizing the importance o f access to evidence\nin a pending cnminal trial, giving significant weight in the constitutional balance to \xe2\x80\x9c the fundamental demands\nof due process o f law in the fair administration of cnm inal justice\xe2\x80\x9d ).\n\n257\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\nhis public duties. But the impeachment process is explicitly established by the\nConstitution. While in some circumstances an impeachment and subsequent Senate\ntrial might interfere with the President\xe2\x80\x99s exercise of his constitutional responsibil\xc2\xad\nities in ways somewhat akin to a criminal prosecution, \xe2\x80\x9c this is a risk expressly\ncontemplated by the Constitution, and it is a necessary incident of the impeach\xc2\xad\nment process.\xe2\x80\x9d OLC Memo at 28. In other words, the Framers themselves specifi\xc2\xad\ncally determined that the public interest in immediately removing a sitting Presi\xc2\xad\ndent whose continuation in office poses a threat to the Nation\xe2\x80\x99s welfare outweighs\nthe public interest in avoiding the Executive burdens incident thereto.\nThe constitutionally prescribed process of impeachment and removal, moreover,\nlies in the hands of duly elected and politically accountable officials. The House\nand Senate are appropriate institutional actors to consider the competing interests\nfavoring and opposing a decision to subject the President and the Nation to a\nSenate trial and perhaps removal. Congress is structurally designed to consider\nand reflect the interests of the entire nation, and individual Members of Congress\nmust ultimately account for their decisions to their constituencies. By contrast,\nthe most important decisions in the process o f criminal prosecution would lie in\nthe hands of unaccountable grand and petit jurors, deliberating in secret, perhaps\ninfluenced by regional or other concerns not shared by the general polity, guided\nby a prosecutor who is only indirectly accountable to the public. The Framers\nconsidered who should possess the extraordinary power of deciding whether to\ninitiate a proceeding that could remove the President \xe2\x80\x94 one of only two constitu\xc2\xad\ntional officers elected by the people as a whole \xe2\x80\x94 and placed that responsibility\nin the elected officials of Congress. It would be inconsistent with that carefully\nconsidered judgment to permit an unelected grand jury and prosecutor effectively\nto \xe2\x80\x9c remove\xe2\x80\x9d a President by bringing criminal charges against him while he\nremains in office.\nThus, the constitutional concern is not merely that any particular indictment\nand criminal prosecution of a sitting President would unduly impinge upon his\nability to perform his public duties. A more general concern is that permitting\nsuch criminal process against a sitting President would affect the underlying\ndynamics of our governmental system in profound and necessarily unpredictable\nways, by shifting an awesome power to unelected persons lacking an explicit con\xc2\xad\nstitutional role vis-a-vis the President. Given the potentially momentous political\nconsequences for the Nation at stake, there is a fundamental, structural incompati\xc2\xad\nbility between the ordinary application of the criminal process and the Office of\nthe President.\nFor these reasons we believe that the Constitution requires recognition of a\npresidential immunity from indictment and criminal prosecution while the Presi\xc2\xad\ndent is in office.\n258\n\n\x0cA Sitting President\'s Amenability to Indictment and Criminal Prosecution\n\n5.\nIn 1973, this Department concluded that a grand jury should not be permitted\nto indict a sitting President even if all subsequent proceedings were postponed\nuntil after the President left office. The Court\xe2\x80\x99s emphasis in Clinton v. Jones on\nthe interests of Article III courts in allowing ordinary judicial processes to go\nforward against a sitting President, and its reliance on scheduling discretion to\nprevent those processes from interfering with performance of the President\xe2\x80\x99s con\xc2\xad\nstitutional duties, might be thought to call this aspect of the Department\xe2\x80\x99s 1973\ndetermination into question. We have thus separately reconsidered whether, if the\nconstitutional immunity extended only to criminal prosecution and confinement\nbut not indictment, the President\xe2\x80\x99s ability to perform his constitutional functions\nwould be unduly burdened by the mere pendency of an indictment against which\nhe would need to defend himself after leaving office.\nWe continue to believe that the better view of the Constitution accords a sitting\nPresident immunity from indictment by itself. To some degree, indictment alone\nwill spur the President to devote some energy and attention to mounting his even\xc2\xad\ntual legal defense.37 The stigma and opprobrium attached to indictment, as we\nexplained above, far exceed that faced by the civil litigant defending a claim.\nGiven \xe2\x80\x9c the realities of modem politics and mass media, and the delicacy of the\npolitical relationships which surround the Presidency both foreign and domestic,\xe2\x80\x9d\nthere would, as we explained in 1973, \xe2\x80\x9c be a Russian roulette aspect to the course\nof indicting the President but postponing trial, hoping in the meantime that the\npower to govern could survive.\xe2\x80\x9d OLC Memo at 3 1.38 Moreover, while the burdens\nimposed on a sitting President by indictment alone may be less onerous than those\nimposed on the President by a full scale criminal prosecution, the public interest\nin indictment alone would be concomitantly weaker assuming that both trial and\npunishment must be deferred, and weaker still given Congress\xe2\x80\x99 power to extend\nthe statute of limitations or a court\xe2\x80\x99s possible authority to recognize an equitable\ntolling.\nBalancing these competing concerns, we believe the better view is the one\nadvanced by the Department in 1973: a sitting President is immune from indict\xc2\xad\nment as well as from further criminal process. Where the President is concerned,\n37 C f Moore v. Arizona, 414 U.S. 25, 27 (1973) (indictment with delayed tnal \xe2\x80\x9c may disrupt [a defendant\xe2\x80\x99s]\nemployment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety\nin him, his family and his friends\xe2\x80\x9d ) (citations omitted) Indeed, indictment coupled with temporary immunity from\nfurther prosecution may even magnify the problem, since the President would be legally stigmatized as an alleged\ncnminal without any meaningful opportunity to respond to his accusers in a court of law\n38 Our conclusion would hold true even if such an indictment could lawfully be filed, and were filed, under seal.\nGiven the indictment\xe2\x80\x99s target it would be very difficult to preserve its secrecy C f United States v Nixon, 418\nU S. at 687 n.4 (noting parties\xe2\x80\x99 acknowledgment that \xe2\x80\x9c disclosures to the news media made the reasons for continu\xc2\xad\nance of the protective order no longer meaningful,\xe2\x80\x9d with respect to the \xe2\x80\x9c grand jury\xe2\x80\x99s immediate finding relating\nto the status of the President as an unmdicted co-conspirator\xe2\x80\x9d ) Permitting a prosecutor and grand jury to issue\neven a sealed indictment would allow them to take an unacceptable gamble with fundamental constitutional values\n\n259\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nonly the House of Representatives has the authority to bring charges of criminal\nmisconduct through the constitutionally sanctioned process of impeachment.\nin.\n\nIn 1973, the Department of Justice concluded that the indictment and criminal\nprosecution of a sitting President would unduly interfere with the ability of the\nexecutive branch to perform its constitutionally assigned duties, and would thus\nviolate the constitutional separation of powers. No court has addressed this ques\xc2\xad\ntion directly, but the judicial precedents that bear on the continuing vaUdity of\nour constitutional analysis are consistent with both the analytic approach taken\nand the conclusions reached. Our view remains that a sitting President is constitu\xc2\xad\ntionally immune from indictment and criminal prosecution.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice o f Legal Counsel\n\n260\n\n\x0c'