Last night on Fox News Channel’s “Special Report with Bret Baier,” former New Jersey judge Andrew Napolitano, during a discussion of the trouble Hillary Clinton might find herself in from day one of her prospective presidency, offered this nugget of legal information (see here at the 7:25 mark):
There is a Supreme Court opinion that did not exist when her husband was being pursued. And that opinion, which involves [sic] him on the civil side, Clinton v. Jones, says, pretty clearly, the president is immunized from the consequences of criminal prosecution while president. So that would prevent her from having to defend herself while she’s in the White House, should the FBI, and a Justice Department that she would control, decide to move against her.
Napolitano gets one thing right in this off-the-cuff remark—that Clinton v. Jones was “on the civil side” of the law, not the criminal. Everything else he says here is mistaken.
First, to say that Clinton v. Jones “did not exist when her husband was being pursued” is to forget that the Jones case was in many respects a sine qua non of the pursuit and eventual impeachment of Bill Clinton. Jones was decided at the end of May 1997, and the Supreme Court’s ruling that the president was not immunized from civil lawsuits relating to his unofficial conduct, and that the case need not even be postponed, led to all the subpoenas and proceedings that brought the Lewinsky affair to light. Then followed the perjury and obstruction of justice by Clinton, desperately trying to wriggle out of the Jones lawsuit, that caused independent counsel Ken Starr to make his referral of impeachable offenses to the House of Representatives in September 1998.
Second—and far more important—pace Napolitano, the unanimous Clinton v. Jones ruling does not say “pretty clearly” that sitting presidents enjoy immunity from criminal prosecution. The truth is, it doesn’t say a word on the subject one way or the other. If it did say anything it would be the purest obiter dictum, since Jones was about civil litigation. But it says absolutely nothing.
Is there any constitutional immunity for the president from criminal prosecution? As far as judicial precedents go, this remains an open question. As a matter of prudence, the course taken by Ken Starr in 1998 makes sense (and was actually required by statute): make a referral to the House regarding the president’s offenses, so that he or she may first be impeached for them. Impeachment, of course, does not preclude subsequent criminal prosecution (no double jeopardy problem arises, impeachment not being a criminal proceeding). But this principle should work the other way around just as well—that the prospect of impeachment does not preclude a prior criminal indictment, or even a criminal trial. The alternative, implied by Napolitano, is that for a four-year term the president is simply above the ordinary law that applies to everyone else. That notion, in the civil arena, was flatly rejected by Clinton v. Jones. No good reason exists to accept it in the criminal arena.
The horror of a sitting president facing a criminal prosecution, with all the disruption that entails for the performance of public duties, is not pleasant to contemplate. The necessity of contemplating it is another gift given the American public by the Clintons.