Constitutional Opinions /Double Immunity
Rabkin, Jeremy A.
Double Immunity by Jeremy A. Rabkin S ome people mellow with age. In the riper wisdom of their later years, they adopt softer views than they did amidst the passionate controversies of their youth....
...It was an extremely far-fetched notion, as sitting congressmen, senators, federal judges, cabinet secretaries, and state governors have all been held liable to civil suits, without being able to claim any such sweeping immunity...
...In public appearances at the end of May, Cutler urged that the Constitution should at least be read as assuring an incumbent president an automatic postponement of civil proceedings against him, until his departure from office...
...C lass A misdemeanors in the federal code—for which Congress still demanded cranking up the machinery for a full criminal trial of the President of the United States—include such offenses as failing to open a draw bridge to allow the passage of waiting boats (based on a law of 1894...
...While the Justice Department endorsed the claim of absolute presidential immunity, all other amicus briefs insisted that the president was only entitled to a "qualified immunity" for actions he had reasonably supposed to be lawful when taken...
...At the head of the list of these officials, the act placed "the President and Vice President...
...A number of prominent legal scholars expressed great skepticism about the claim and, with one exception, no scholars of any real stature came forward to endorse it...
...CI 48 The American Spectator August 1994...
...Tribe acknowledgedthat the Constitution might, after all, allow for a prompt hearing in a particularly urgent suit...
...It is more charitable to think that Tribe has developed broader views in the years since the second edition of his treatise appeared...
...Perhaps that is the explanation...
...And as late as 1977, in the first edition of his treatise American Constitutional Law, Tribe himself held that "the sounder view would seem to be that a President cannot be criminally tried prior to impeachment and removal...
...He was extremely eager to portray the decision in Nixon as still leaving open the possibility that Congress could impose presidential liability for civil suits if it chose to do so...
...By 1988, however, when he published a second edition'of his treatise, Tribe had substantially reversed himself...
...But such speculation would be ungenerous...
...The investigation of Carter, involving his Georgia peanut business, ultimately turned up no clear evidence of wrongdoing...
...The federal code also makes it a Class A misdemeanor, for example, to provide "misleading" information to the government on "the quantity of peanuts and peanut oil received" by a "warehouseman, sheller, crusher, salter or manufacturer of peanut products" (based on a 1936 law...
...B ut then there is the case of Professor Laurence Tribe of the Harvard Law School...
...Some of these minor offenses might well be imputed to an incumbent president who had active business dealings before his election...
...The latter charge may have been one considered against President Jimmy Carter, a former peanut "warehouseman," who was subjected to an investigation by a special prosecutor during his time in the White House...
...The president was entitled to demand this, Tribe insisted, "in light of the special role of the Commander in Chief...
...In other words, the president would still be vulnerable to civil suits for wrongful actions taken in his private or non-official capacity—which would, of course, include actions taken by a president before his election to the office...
...He can hardly be faulted for offering up such a legal theory, which, however implausible, does have the merit of distracting public attention and delaying a trial on the merits of Jones's lurid charges...
...Tribe offered a different interpretation...
...Clinton then hired an extremely resourceful private attorney, Robert Bennett, to conduct his defense...
...First, Paula Jones, former public employee in Arkansas, launched her suit against President Clinton, claiming that he had sexually harassed her as governor...
...Tribe then consoled himself with the observation that "even if it could not be modified by Congress, the presidential immunity recognized by the Court .. . extends only to acts that are within the `outer perimeter' of presidential responsibility...
...A cynic might suspect that Tribe has indeed found other uses for his "energy...
...eral officials, this claim did not seem especially persuasive, either...
...As nothing of the sort is done for other high fedJeremy A. Rabkin is an associate professor of government at Cornell University...
...Soon thereafter, Bennett began floating the argument that a sitting president has an absolute immunity from civil suits...
...Merely subjecting erring presidents to political repudiation would be insufficient, he argued, because this "confers no compensation on thosethey have injured" and "the electorate may choose not to punish officeholders who commit offenses against groups or persons disfavored by a majority of the electorate itself...
...On the contrary, Tribe insisted that presidents ought to be held accountable even to civil suits...
...In the early spring of 1993, the Harvard Crimson reported that Laurence Tribe was being closely considered by the Clinton administration for the post of solicitor general in the Justice Department, a position often viewed as a stepping stone to the Supreme Court...
...He now declared that "the burden is on those who insist that a President is immune from criminal trial prior to impeachment and removal from office...
...If I shared the belief .. . that the sorts of constitutional arguments I advance are but a cover for whatever political views I might hold, I would .. . have found other uses for my energy...
...The Crimson reported in this connection (evidently on the basis of information supplied by Tribe himself) that both Tribe and his wife had made early and generous financial contributions to the Clinton presidential campaign...
...In the 1978 Ethics in Government Act, Congress directed the attorney general to seek the appointment of a special prosecutor, whenever there was "information sufficient to constitute grounds to investigate" possiThe American Spectator August 1994 47 ble violations of federal criminal law by particular executive officials...
...He said not a word about the awkwardness of putting a sitting president on trial, even for relatively minor offenses, while expecting the president to carry on "the special role of the commander-in-chief...
...Both John Adams and Thomas Jefferson argued on this basis that the president could not be subject to' any judicial process, even to criminal prosecution, while remaining in office...
...The court's ruling was very controversial at the time...
...But Bennett will ultimately be paid hundreds of thousands of dollars for his services...
...Tribe did not get the appointment, however...
...I n the preface to the second edition of his treatise, Tribe scoffed at the notion that he was inspired by political ambition...
...As George Bush can testify, 1988 was a long time ago...
...Only a bare majority of the Supreme Court endorsed the claim of absolute immunity and the four dissenters protested that such sweeping immunity "places the President above the law...
...But if Laurence Tribe thought this in any way unseemly, he did not bother to express his misgivings in the second edition of his treatise...
...Tribe repeatedly made himself available to television interviewers in May and June to offer unequivocal support for the claim that the Constitution requires judges to postpone the trial of almost any civil suit against a sitting president until the end of his term of office...
...White House counsel Lloyd Cutler evidently could not bring himself to endorse the Bennett doctrine, so he offered up an alternative on behalf of his new employer...
...The notion that the president would be dangerously distracted, demeaned, or debilitated by involvement in a lawsuit is certainly not a new one...
...Our cynic might speculate that Tribe has been appearing on television in recent weeks, urging a new view of presidential prerogatives, in order to send the Clintons a clearer message of devotion than that conveyed in the low visibility forum of the Harvard student newspaper...
...Albert Gore, Jr., insisting that such "qualified immunity provides ample safeguards for the effectiveness of the Presidency...
...The second edition cited no new judicial rulings nor any new commentary nor any new material of any kind to support this opposite presumption...
...T ribe had a problem in urging open season for civil suits against the president, however...
...The law did allow an exception for a mere "petty offense," which Congress subsequently defined as "a class B or C misdemeanor...
...Among the amicus briefs was one submitted by several members of Congress, including then Rep...
...In its 1982 ruling in Nixon v. Fitzgerald, the Supreme Court had already held that the president does have an absolute immunity to civil suits claiming personal harm from a lawless presidential action...
...Comments in major law reviews at the time almost uniformly sided with dissenters...
...But he was emphatic that the case of Paula Jones was not a case that needed to be heard while President Clinton remained in office...
...The claim that the Constitution actually requires such postponement is entirely a new one for Tribe...
...Alone among prominent commentators at the time, he interpreted the court's ruling in Nixon to mean simply that the court was unwilling to allow suits against the president on such a vague constitutional claim (deprivation of First Amendment rights) without explicit and direct authorization from Congress...
...Thus understood," Tribe opined in the second edition of his treatise, "the Court's holding in Nixon v. Fitzgerald warrants little alarm"—clearlyimplying that an immovable barrier to civil suits against the president would indeed warrant substantial alarm...
...He claimed that in ordering his removal, President Nixon had deprived him of his First Amendment rights...
...After indicating that he had asked the Justice Department's Office of Legal Counsel to research this claim, Cutler subsequently explained that OLC would be delivering "materials" but no formal opinion, suggesting that even President Clinton's own appointees in the Justice Department were reluctant to go on record in support of Cutler's claim...
...But (perhaps coincidentally) the Congress of the United States had in the meantime given dramatic endorsement to the presumption reflected in Tribe's second edition...
...Tribe offered not the slightest hint that such suits would have to be delayed until the president left office...
...Fitzgerald, the plaintiff, had been removed from his position in the Pentagon following his testimony to a congressional committee about waste and abuse in weapons procurement...
...But another president might not be so lucky...
...The framers of the Constitution may have been astounded at the possibility that a President of the United States could be charged, tried, perhaps even sentenced to a prison term (up to a year for Class A misdemeanors) without Congress even taking the first steps toward an impeachment proceeding...
Vol. 27 • August 1994 • No. 8
