MR. AMAR: Thank you, Mr. Chair, members of the subcommittee.
My name is Akhil Reed (sp) Amar. I'm - (name inaudible) - professor of law at Yale Law School, where I have taught constitutional law for the last 13 years. I have written three books and close to 100 articles on general topics in constitutional law.
In 1996 my student Brian Colt (sp) and I co-authored an article explaining that a sitting president is constitutionally immune from ordinary criminal prosecution, state or federal, but is of course subject to ordinary prosecution the instant he leaves office, a prospect that can obviously be hastened by impeachment. Today I'll try to summarize my reasons for continuing to believe this.
The issue, as I understand it, concerns not Bill Clinton, the man, but the institution of the presidency. The rules laid down by the framers apply equal to Democrats and Republicans, liberals and conservatives. I never asked Brian Colt about his party affiliation and we drafted our article before the 1996 elections, not knowing who would be president thereafter and not knowing when this momentous question would next be on the national agency.
In analyzing this and other constitutional questions, I often try to reserve existing partisan polarities in my mind, so as to arrive at a result and reasoning process un-tinged by current political preference. I would invite the senators and the administration to do the same thing. Constitutional law shouldn't be partisan.
The position Brian and I put forth - that a sitting president may only be criminally tried in this court, the Senate, sitting in impeachment, and can be criminally tried elsewhere only after he has left office - has a very distinguished and bipartisan pedigree:
It's the position put forth in passing in two Federalist Papers, Numbers 69 and 77.
It's the position clearly taken by both John Adams and Thomas Jefferson, men who disagreed about many other things, who both risked their lives to fight against monarchy and who both deeply believed in the rule of law.
It's the position clearly set forth in the first Congress by Senator Oliver Ellsworth (sp), a Philadelphia framer, the author of the Judiciary Act of 1789, and later chief justice of the United States.
It's the position that makes the most sense of the analysis of the great Justice Joseph Storey (sp) in his landmark 1833 treatise on the Constitution.
It's the position articulated in the Supreme Court as early as 1867 by Attorney General Stan Berry (sp) and the traditional position of the Justice Department.
It's the position taken 25 years ago when Richard Nixon was president by two of my own teachers at Yale Law School, Robert Bork and Charles Black. In the symposium in which the Amar-Colt article appeared, our views were largely in sync with of most - but not all - but most, of the other participants, including my distinguished friend Terry Eastland.
Apart from those points about history and tradition, my basic constitutional argument is more structural than textual, sounding in both separation of powers and federalism. Other impeachable officers - vice presidents, Cabinet officers, judges, justices - may be indicted while in office. But the presidency is constitutionality unique. In the president, the entirety of the power of a branch of government is vested. And so the language of impeachment in the Constitution sensibly means something different as applied to presidents on the one hand and other officials on the other, an analogy that may be helpful to the members of this subcommittee.
The Constitution gives the Senate the power of advice and consent as to both Cabinet officials and Supreme Court justices. But these words sensibly mean different things in these two contexts. Constitutionally, Cabinet officers are members of the president's team, justices are not. Thus, the Senate historically gives more deference to the president's nominees when Cabinet officers who will leave when the president leaves are at stake than when justices who will be in place for life are involved.
The same words, "advice and consent," must be understood in different ways when they interact with different clauses or different structural implications. So, too, with the Constitution's words concerning impeachment.
Let's begin structural analysis by pondering the following hypothetical, which implicates federalism as well as separation of powers. Could some clever state or country prosecutor in Charleston, South Carolina, have indicted Abraham Lincoln in March 1861 and order him to stand trial in Charleston? If so, there might well be no United States today bringing us all together. I believe the Constitution gave Lincoln immunity in this situation, so long as he was in office. The president is elected by the whole nation and no one part of the nation should have the power to undo a decision of the whole. This is the kind of structural argument exemplified by John Marshall's classic opinion in McCulloch v. Maryland.
What's true of state criminal prosecution is also true of federal criminal prosecution. Here, too, we cannot allow a part to undo the whole. Any one federal grand jury or federal petit jury will come from only city, be it Charleston or Little Rock or the District of Columbia. The president is elected by the entire nation and should be judged by the entire nation. His true grand jury is the House, his true petit jury is the Senate, and the true indictment that he is subject to is called an impeachment.
What's more, any effort to indict him by an independent counsel would also violate the Constitution's Article II appointment clause.
Let me make clear, by the way, that Kenneth Starr, the man, is my friend. I admire him and respect him. Nothing that I say here should be understood as a personal criticism.
Counsel Starr is, constitutionally speaking, an inferior officer; that's the words of the Constitution itself. He was never as counsel confirmed by this body, the Senate of the United States. Were he to claim the power to indict a sitting president, it would be impossible to argue with a straight face that he is simply some inferior officer. It would be breaking with the historical and traditional approach of the Justice Department. And even if you think he'd be right, you cannot say that he would truly be inferior. He would be claiming for himself the power to imprison the chief executive officer. This power is awesome. It is anything but an inferior power that can be vested in an inferior officer.
This issue, of course, did not arise in the 1988 Supreme Court case, Morrison v. Olson (sp), since the president in that case was not a target. And remember, Richard Nixon was only named an indicted co- conspirator.
Since Morrison, the Court has been even more strict in insisting that the word inferior be taken seriously in the Appointments Clause, as evidenced by the 1997 case, Edmund (sp) v. United States, which I have not heard discussed in any of these conversations. Any indictment of the president by counsel Starr would in my view plainly violate the teaching of Edmund.
Let me conclude by making clear that, of course, no man is above the law. Once out of office, an ex-president may be tried just like anyone else and that day of reckoning can, of course, be speeded up if the House and the Senate decide to impeach and remove.
Moreover, since a sitting president's immunity (sounds ?) in personal jurisdiction, it may well be waive-able. And if so, political pressure may be brought upon a president to consent to be tried in the drunk driving case or something else. The question is not whether a president is accountable to law and to the country, but how, when and by whom.
Mr. Chairman, that concludes my formal testimony. Perhaps later on, I would be grateful to have a chance, just a minute, to express a disagreement that I have with one thing that you'd said that I think, actually, in my view, is a mistake as a matter of constitutional law. But I don't - I'd be happy to reserve that for later on.
