Yale Law School Sterling Professor of Law and Political Science Akhil Amar joined me this morning:
HH: The Alabama Senate race is blessedly almost over, but one thing that is not over is the controversy around President Trump and allegations of collusion, obstruction of justice, and many other issues. 22 years ago when Chapman Law School opened, I was asked by the dean and President Doti if I wouldn’t oversee not only the teaching of Con Law there, but the publication of a journal. And the very second issue of that journal featured the symposium on a question of whether or not a president can be prosecuted. I was pleased to oversee it, and I’m pleased it’s still relevant. One of those articles titled “The Presidential Privilege Against Prosecution” was authored by Akhil Reed Amar and Brian C. Kalt. The former, Professor Amar, is the Sterling professor of law and politics at our nemesis, Yale University, but he joins me this morning. Good morning, Professor Amar, good to have you on the Hugh Hewitt Show.
AA: Good morning, Hugh, thanks for having me.
HH: Did you think that 20 years later, we would be talking about the article that you authored for Nexus in 1997?
AA: Probably not, but I do think that the Constitution addresses enduring questions, and they come up, and they come in Democrat administrations and Republican administrations. So I didn’t know when, but I did expect, actually, this wouldn’t be the only time. And that’s why when I try to write, I try to be non-partisan, because what goes around for Democrats is going to go around for Republicans as well.
HH: And it has stood the test of time. Nexus was founded to be available to people of the media to be able to read. It’s not a traditional law review. And you and Mr. Kalt did a fine job. Let me read the first paragraph of your article from 1997. “Can a sitting president ever be criminally prosecuted outside of an impeachment court,” you ask. “The question has been debates, sometimes hotly, sometimes coolly, since the beginning of the republic. Although the long pedigree of this debate suggests that reasonable people can disagree, we believe that the best view of Constitutional text, history, structure and precedent supports the conclusion that Justice Story reached, sitting presidents cannot be prosecuted.” End of quote. Professor Amar, have you changed your mind?
AA: Not at all.
HH: Can you tell people why, and in conversational tone as opposed to even the very readable style of Nexus?
AA: Absolutely. First, since you mentioned Justice Story, for your audience, his name was Joseph Story. He was by acclimation one of the greatest justices of the 19th Century. He was professor at Harvard and an associate justice on the Supreme Court, really, along with John Marshall, probably the most preeminent justice prior to the Civil War. So he’s on our side, but of course, that’s not enough. Two points – one, as to federal prosecution, one as to state. Let’s take the possibility of federal prosecution. Well, the Constitution makes the president the chief executive of the federal government. Prosecution is an executive branch function. And executive branch powers are vested by the first sentence of Article II, the presidential article, in a president. What’s more, and the people in the executive branch basically work for him. That’s why he’s chief executive as to the same way he’s commander-in-chief in the military. You know, he’s the ultimate generalissimo. You say, well, what about Bob Mueller? Bob Mueller, Constitutionally, is what’s called an inferior officer under Article II, Section 2, Paragraph 2, which your audience can look at, because the Constitution is very readable itself. The Constitution says that certain officers can be basically picked by low level officials, but aren’t picked by the president, aren’t confirmed by the Senate. But those officers like Bob Mueller, who wasn’t picked by a president, wasn’t confirmed by a Senate, has to be inferior officers. That’s the word the Constitution uses. Now it’s really hard to be inferior if you’re indicting a president of the United States and possibly undoing a national election. So two different reasons when it comes to federal prosecution, but this can’t happen, because one, the president is the chief executive, and everyone in the executive branch ultimately answers to him, and second, and more pointedly, Bob Mueller is an inferior officer, and he wouldn’t be, he was never confirmed by the Senate, never picked by a president, he would not be inferior if he could do this. And by the way, I not only have Joseph Story on my side on that, I have Justice Scalia also, who said that way back when in a case in the 1980s called Morrison V. Olson. That leaves the possibility of state prosecution. If federal prosecution against an un-consenting president really are unavailing, what about state prosecutions? Here, the basic argument is an argument of federalism, of structure. In a nutshell, we all elect a president. I voted against President Trump, but elections matter. We the people of the United States made a decision, and I wouldn’t want any individual state to be able to undo that election. What’s popular in Massachusetts is unpopular in Alabama, and the vice versa. The president has to represent all of us, and so I wouldn’t want the people of any given state to be able to undo a presidential election. And a state prosecution would involve a local jury, a local grand jury. It would be the part overturning the whole. It would be as if, let’s say, in the 1860s North Carolina could have indicted Abraham Lincoln on some fabricated charge and tried to demand that he go down to the Carolinas for trial or something when he had other things to do, namely win the Civil War.
HH: That is so succinctly and perfectly put. We’ll put that up so that people can hear that. The point you made, by the way, Professor Amar, people often overlook the Constitution is pretty easy to read. When Justice Breyer came to my studio in 2011, we talked for a couple of hours about his book that he had just put out. And I quoted to him my favorite part of the Constitutional ratification process, which happened on January 25th in 1788 at the Massachusetts Ratification Convention. Mr. Smith rises up and says “Mr. President, I am a plain man, and I get my living by the plough. I’m not used to speaking in public, but I beg your leave to say a few words to my brother plough joggers in this house. And he goes on to say when I saw this Constitution, I found that it was a cure for our disorders. It was just the thing as wanted. I got a copy of it, and I read it over and over. I’ve been a member of the convention to form our own state constitution and learned something of checks and balances. I found them all there, and I did not go to any lawyer to ask his opinion. We have no lawyers in our town, and we do well enough without. I afford my own opinion, and I’m pleased with this constitution.” You know, Professor Amar, people can read the Constitution as you just said.
HH: It’s not hard to figure this one out.
AA: Well, and it uses plain words like a chief, you know, like the executive power being vested in a president. He’s the commander-in-chief. He’s the head of his branch. It uses words like inferior. We do have to read between the lines, that is read the thing as a whole, because I admit, I’m the first to admit, the Constitution doesn’t say this in so many words. It basically is an inference from a holistic reading of the document, that the part can’t undo the whole.
HH: Now we might get, on the two second questions, you might reach a different inference, which is can a president be indicted, and can a president even potentially obstruct justice. We know that President Nixon, from my once work, was an unindicted co-conspirator in the Leon Jaworski proceedings, but that didn’t tell us whether or not he could have been indicted. And Ken Starr’s report suggested that a president could be prosecuted. There’s countervailing authority. I don’t want to put the, pull the wool over our audience’s ears, but what do you think about those two secondary questions – he can’t be prosecuted, in your view. Can he be indicted? Or can he even technically obstruct justice?
AA: Well, actually, Ken, who is a dear friend of mine, was very reluctant to indict. The reason that he was an unindicted co-conspirator is Archibald Cox and Leon Jaworski had real doubts about whether they had the authority to do that. That’s why, actually, he was unindicted. The historical view of the Justice Department from Robert Bork to Clinton’s Justice Department, for that matter, has been that even if an indictment could possibly, you know, issue, a president could simply ignore it while sitting. Now of course, he can be forced out. He can be impeached. He can resign. His term will end, and once he’s out of office, you can have at him, as can have at anyone else. He’s not above the law. But while he is sitting, the real grand jury, in effect, that he has to answer to is called the House of Representatives. And the real indictment that he has to worry about is called a bill of impeachment. That, so the House, in effect, is his grand jury, the Senate, in effect, is his judge and jurors while he is in office. And so those people who actually think that he has obstructed justice, if you think so, actually, you’re very welcome to vote for Democrats in off-year election, who if they control the House of Representatives may be more inclined to do oversight than Republicans. But again, it’s a national election that is necessary in order to modify the results of the previous national election. We shouldn’t let one state or one inferior officer undo what we all as a nation did in the last presidential election.
HH: Now last question, Professor Amar, two people who are no doubt your friends, Alan Dershowitz and Laurence Tribe of Harvard Law School are having an online debate over whether or not a president can even theoretically obstruct justice. Given what you said earlier, everyone is inferior to him in the executive branch. What say you on that debate?
AA: They’re both dear friends of mine. Actually, both have blurbed previous books of mine. I’m closer to Alan’s view. He doesn’t, I think, when he’s best understood, say that there could never be an obstruction of justice under, you know, where bribery or something else. What he does rightly remind us is frankly the rules are different for presidents, because, for example, the president has the pardon power. The president can decide that he actually doesn’t think, for example, marijuana laws in Colorado should be enforced the same as Barack Obama, or that draft dodgers should be prosecuted the same as Jimmy Carter. So the president has a unique role in the criminal justice system. He’s allowed to actually decide whom he wants as the head of the FBI, and he’s allowed to have enforcement priorities. Focus on A, B and C, and not D, E and F. And so unless one actually has specific evidence of a certain kind of corruption, of bribery or something like that, it’s not enough to merely state oh, he didn’t like Jim Comey, and he didn’t like him because of Comey’s enforcement priorities. The president is allowed to have his own enforcement priorities, and that in and of itself does not amount to obstruction of justice absent some specific evidence of corruption and overt acts. And that’s, I think, Alan’s argument sort of most, sort of carefully reconstructed. So I’m probably closer to Alan’s than my dear friend, Larry Tribe on this. They’re both friends.
HH: Professor Amar, I appreciate your adding clarity and succinct explanation this morning. I don’t know why we’ve lost you to Yale all these decades. Someday, someone will come and rescue you there and get you to a law school where people will talk to you more often. I very much appreciate, though, you taking the time with me early this morning. We’ll post this. Have a great holiday season, Professor.
AA: You, too.
HH: Akhil Amar is really one of America’s least appreciated, least well-known outside of legal circles, where he’s a giant, scholar. He is extraordinary. And what he just did there is demonstrate why everyone wants to take his classes at Yale, and loves to hear him. But for whatever reason, I never see him on the television. I see Dershowitz, I see Tribe, I see, you know, Erwin and John. They’ll be on later, the Smart Guys, Erwin Chemerinsky, John Eastman. But they don’t go to Akhil Amar, and they should. He’s just terrific. And that, we’re going to post that. Generalissimo’s going to try and work on the big words. He is the generalissimo, though. I didn’t correct the professor on that.
End of interview.