America's Unwritten Constitution: The Precedents and Principles We Live By (85 page)

49
  Civil litigation against a sitting president does not raise the same risk, given that a president does not typically face the threat of a bodily coercion in civil litigation; he remains free to simply boycott the litigation and pay damages if found liable. In the famous case of
Clinton v. Jones
, 520 U.S. 681 (1997), the Supreme Court unanimously ruled that a sitting president had no general immunity from a civil suit brought against him in federal court. Prior to this ruling, some scholars (myself included) did express concern that civil litigation might improperly distract a president from attending to the people’s business. See, e.g., Akhil Reed Amar and Neal Kumar Katyal, “Executive Privileges and Immunities: The
Nixon
and
Clinton
Cases,”
Harvard LR
108 (1995): 701. The
Jones
Court brushed aside these concerns, declaring that “if properly managed by the District Court, [the Paula Jones suit] appears to us highly unlikely to occupy any substantial amount of [the president’s] time.” 520 US. at 702.

50
  Any statute of limitations should be tolled by the president’s invocation of immunity.

51
  As a structural matter, presidential immunity from state prosecution should be waivable; in certain situations a sitting president might prefer an immediate trial to clear his name from an obviously baseless charge. A sitting president could of course also choose to temporarily cede presidential power to his vice president during the pendency of a criminal trial.

52
  
Federalist
Nos. 69, 77.

53
  
Farrand’s Records
, 2:500;
Elliot’s Debates
, 4:37. See also “Letter of Americanus (I) to the Virginia Independent Chronicle” (Dec. 5, 1787), reprinted in
DHRC
, 8:200, 203 (president “is liable to be impeached…and
afterwards
he is subject to indictment, trial, judgment, and punishment according to law”) (emphasis added).

54
  
Elliot’s Debates
, 2:480 (emphasis deleted). James Iredell in North Carolina echoed Wilson: “If the President does a single act by which the people are prejudiced, he is punishable himself, and no other man merely to screen him. If he commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust, or profit. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.” Ibid., 4:109. See also Alexander Contee Hanson, “Remarks on the Proposed Plan of a Federal Government, Addressed to the Citizens of the United States of America, and Particularly to the People of Maryland” (Jan. 1, 1788), in Ford,
Pamphlets
, 226, 233 (“Like any other individual, [the president] is liable to punishment.…Not even his person is particularly protected.”); James Iredell, “Answers to Mr. Mason’s Objections to the New Constitution, Recommended by the Late Convention” (Jan. 1788), in ibid., 352 (“[The president] is not exempt from a trial, if he should be guilty or supposed guilty, of [treason] or any other offence”). As with Wilson’s remarks, none of these discussions focused with precision on whether impeachment and removal would ordinarily need to precede regular criminal prosecution of a sitting president. Iredell, in particular, aimed to contradistinguish presidents from kings—who of course were not subject to ordinary criminal prosecution and were also immune from impeachment or any other regular mechanism of removal from power. As Iredell himself explained, “There are no courts to try him [the king] for any high crimes; nor is there any constitutional method for depriving him of his throne.”
Elliot’s Debates
, 4:109. By contrast, the U.S. Constitution did provide an obvious mechanism for removing a president first, and then prosecuting him in an ordinary criminal court. Read in context, Iredell’s comments should thus not be seen as squarely rejecting the proposition that impeachment and removal (or resignation or waiver) would ordinarily need to precede regular criminal prosecutions of a president.

         
Relatedly, Federalist Tench Coxe asserted that the president “is not so much protected as that of a member of the house of representatives; for he may be proceeded against like any other man in the ordinary course of law.” “An Examination of the Constitution for the United States of America (I),” in Ford,
Pamphlets
, 139. It is not entirely clear whether Coxe was discussing civil or criminal cases or both in juxtaposing presidential
and congressional privileges. His sweeping language seems to encompass both categories, rendering his hasty analysis highly doubtful. For example, Coxe seemed to imply that a president could be sued for common-law libel even for remarks contained within a veto message to Congress or a State of the Union message. If so, presidential messages that the Constitution itself authorizes and requires would receive less protection from state libel law than do ordinary judicial utterances in court or in published opinions. Here, too, great caution is warranted before deriving sweeping conclusions from mere negative implication.

55
  
Elliot’s Debates
, 2:480, 523 (emphasis deleted). For more on
Marbury
and executive privilege, see Chapter 9, text accompanying n. 11.

56
  
Maclay’s Journal
, 167 (Sept. 25, 1789); Jefferson to George Hay, June 20, 1807, in Paul Leicester Ford, ed.,
The Works of Thomas Jefferson
(1905), 10:404 n. 1 (emphasis deleted).

57
  Story,
Commentaries
, 3:418–419, sec. 1563 (emphasis added). The hedging language suggested that the president’s “person must be deemed, in civil cases at least, to possess an official inviolability.” Ibid. The potentially limiting language about “civil cases” suggests that Story here may have been analogizing to the scope of congressional immunity from civil arrest under Article I, section 6. See Amar and Katyal, “Executive Privileges and Immunities,” 711–717.

58
  For more on the difference in unitariness between state and federal executive branches, see Chapter 12. Note also that although governors typically wield pardon pens, a governor may not pardon himself without violating the
nemo judex
principle. For discussion of the similar (albeit implicit) ban on presidential self-pardons, see Chapter 9.

59
  For similar reminders that satisfying textual arguments must attend to the larger structural and institutional contexts within which textual fragments are located, see Black,
Structure and Relationship
, 31; Laurence H. Tribe, “Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation,”
Harvard LR
108 (1995): 1221, 1233.

60
  It is at precisely this point where leading critics of presidential immunity veer furthest off course. See, e.g., Eric M. Freedman, “The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?,”
Hastings Constitutional Law Quarterly
20 (1992): 7; Eric M. Freedman, “On Protecting Accountability,”
Hofstra LR
27 (1999): 677, 709–710; Jonathan Turley, “‘From Pillar to Post’: The Prosecution of American Presidents,”
American Criminal LR
37 (2000): 1049. The real question is not whether a sitting president is absolutely and utterly immune from all criminal proceedings that might be brought against him. Rather, the question is whether the screening of the accusations against him and the judgment about his guilt should be made in the first instance by officials and jurors from a single locality or instead by the great national inquest of Congress. Thus, the most eminent constitutional structuralist of the twentieth century thought that a sitting president should not be fair game in an ordinary criminal court. Charles L. Black Jr.,
Impeachment: A Handbook
(1974), 40.

1
    On the importance of “symbolic expression”—paintings, flags, processions, liberty poles, costumes, effigies, and so on—and a survey of Founding-era legal protections of these forms of expression, see Eugene Volokh, “Symbolic Expression and the Original Meaning of the First Amendment,”
Georgetown LJ
97 (2009): 1057. For discussion of one episode in which Anti-Federalists burned effigies of Federalist leaders, see Pauline Maier,
Ratification: The People Debate the Constitution, 1787–1788
(2010), 121–122. Maier also argues that the Federalists were able to use their economic and organizational advantages to dominate certain press outlets. See ibid., 70–95, 99–101. Maier further notes that the ratification process was marred by occasional threats of mob violence, and she highlights one instance in which a printer actually fell victim to a significant act of illegal repression. (Interestingly, this episode occurred
after
eleven states had ratified the document. Ibid., 398.) Fisticuffs and rioting sometimes closely accompanied elections in late eighteenth-century America, and the year-long and continent-wide ratification process was not entirely free from these electoral blemishes. Ibid., 406–408. Notwithstanding these lapses, the fact that no one died or was seriously injured in America’s Great Debate of 1787–1788 stands in remarkable contrast to the American Revolution of the 1770s and the French Revolution of the 1790s.

2
    On Adams and Ames, see
Elliot’s Debates
, 2:11, 178–181. For additional examples of persuasion at this convention, see ibid. 160 (Nathaniel Barrell), 183 (Benjamin Swain).

3
    
Elliot’s Debates
, 2:432 (emphasis and punctuation altered), 458 (emphasis added). Contemporary foreign observers also took note of the epic continental conversation unfolding before them. See, e.g.,
DHRC
, 8:205 (Dec. 6, 1787, letter from Diego de Gardoqui to Conde de Floridabalanca); ibid., 14:229 (Nov. 26, 1787, letter from Louis-Guillaume Otto to Comte de Montmorin).

4
    For English law and practice, see
Blackstone’s Comm
. 4:151–152; see also infra Chapter 4. For American practice after the Revolutionary War, see Leonard W. Levy,
Emergence of a Free Press
(1985), 186–189; David A. Anderson, “The Origins of the Press Clause,”
U.C.L.A. LR
30 (1983): 455, 510–515. The war years were a different story.

5
    
Elliot’s Debates
, 4:570–571 (Madison’s 1799 Report on the Virginia Resolutions).

6
    The fact that Congress enacted an expression-suppressing Sedition Act in 1798, only a decade after the ink had dried on the Philadelphia Constitution, might be thought to undercut the basic enactment argument for robust free speech. But many of the claims made by supporters of the 1798 act flatly contradicted claims and promises made by leading Federalists in the great national debate of 1787–1788 and in the conversation surrounding the drafting and ratification of the First Amendment. Indeed, the amendment’s chief draftsman was Madison, whose reminder that the very act of constitution itself had depended on and solidified robust free-expression rights occurred precisely as he was explaining why the 1798 act was a constitutional abomination. The American people sided with Madison on this issue in the election of 1800, and his views have also
been affirmed by the court of history. Today, the unconstitutionality of the Sedition Act of 1798 is a first principle of free-expression law. For more on this, see Chapter 4, text accompanying nn. 20, 33–55, and Chapter 7, text accompanying n. 6; see also Amar,
Bill of Rights
, 36; Amar,
ACAB
, 102–104.

         
It might be argued that robust free speech must be allowed, by analogy to the enactment principles that operated in 1787–1789, only when the American people are amending the Constitution, just as special voting rules might apply only to amendments. But since the people have a right to amend at any time, and since speech is part of the agenda-setting process, free speech at every moment is necessary to vindicate the basic principle that the Constitution is open to amendment at all times.

7
    Mass. Const. (1780), pt. II, ch. VI, art. X. In the actual adoption of the 1780 Constitution, certain flaws in the tally were deftly swept under the rug with Yankee ingenuity.

8
    
Storing’s Anti-Fed
., 4:172 (emphasis deleted).

9
    On Warren as the likely author, see ibid., 162. For Anti-Federalist deference to majority rule in Massachusetts, see
Elliot’s Debates
, 2:181–182 (Abraham White) (“[N]otwithstanding he had opposed the Constitution, yet, as a majority had seen fit to adopt it, he should use his utmost exertions to induce his constituents to live in peace under and cheerfully submit to it”); ibid., 182 (William Widgery) (“[H]e should return to his constituents, and inform them that he had opposed the adoption of this Constitution; but that he had been overruled, and that it had been carried by a majority of wise and understanding men; that he should endeavor to sow the seeds of union and peace among the people he represented;…for, said he, we must consider that this body is as full a representation of the people as can be convened”); ibid. (Daniel Cooley) (“[A]s it [the Constitution] had been agreed to by a majority, he should endeavor to convince his constituents of the propriety of its adoption”); ibid., 182–183 (Benjamin Randall) (“[H]e had been uniformly opposed to the Constitution…but as he was beaten, he should sit down contented, hoping the minority may be disappointed in their fears, and that the majority may reap the full fruition of the blessings they anticipate”); ibid., 183 (Benjamin Swain) (“[A]lthough he was in the minority, he should support the Constitution as cheerfully and as heartily as though he had voted on the other side of the question”). For similar gracious concession speeches, see ibid., 182 (Joshua Whitney, John Taylor, and Samuel Nasson). For young Adams, see entry of Feb. 7, 1788,
DHRC
, 14:220. For similar statements from Anti-Federalists Elbridge Gerry and Robert Yates, see Maier,
Ratification
, 432–433.