The ‘rule of law’: Presidents, impeachment and punishment
Lately we’ve heard the phrase “the rule of law” thrown around in discussions on cable television, social media and academic round tables. But what’s at the heart of this expression? At its core is the idea that person in our society is subject to its laws. Recently debate has raged over whether a sitting president can be indicted for criminal acts, while in office. Some of the arguments against indictment raise valid observations as to the nature and functions of the presidency, but don’t consider the historical and legal justifications behind the “rule of law” principle.
The framers of the Constitution knew of the problem associated with absolute power and the lack of accountability. Their experiences with the British crown were at the forefront of the constitutional framework that was created. A system of checks and balances and, additionally, a system built on adherence to laws was the cornerstone of the new government. As a mechanism for dealing with an executive who was unfit for office, the framers allowed for impeachment:
Article I states, “Judgment in Cases of Impeachment shall not extend further than to removal from Office … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The clause displays two important facts. First, if a president is convicted in the Senate and removed from office the sole punishment of that determination is expulsion from his or her position. Second, and more important, if something criminal formed the underlying basis of impeachment the president would still be “subject to Indictment… according to law.” In other words, there are two separate processes in play: removal from office and criminal prosecution. They represent two distinct methods for expelling an unfit executive — both being viable avenues for such a goal.
However, the intent to hold a president liable for criminal acts can be seen elsewhere in colonial thought.
During the Constitution’s ratification debates, the subject often arose. James Iredell, one of the first justices of the Supreme Court and proponent of the Constitution, stated at the North Carolina ratifying convention: “No man is better than his fellow-citizens ... If the President does a single act by which the people are prejudiced, he is punishable himself .... If he commits any crime, he is punishable by the laws of his country.” Patrick Henry opined about the president at the Virginia ratifying convention, stating: “If ever he violates the laws, he will give bail, or do what Mr. Chief Justice will order him.” Both statements illustrate the paramount belief that regardless of power or position, all people are subject to the laws of this nation.
The courts — while never directly addressing the issue of presidential immunity from indictment — have given insight into the problem of balancing its powers with those of other branches. In United States v. Nixon, the Supreme Court spoke of such issues. Giving the executive a grant of immunity from indictment would in essence prevent the courts from performing their constitutional role. Such a grant of immunity would impede “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions” and would “plainly conflict with the function of the courts under Art. III.” Also in that case, the court also made an important determination. Primarily, that the president was still subject to judicial process while in office. The logical conclusion is that if the president can be subjected to, and forced to comply with, the processes of a criminal investigation, it follows he can be held accountable for alleged crimes and be indicted.
In the landmark case of Marbury v. Madison, Justice John Marshall declared, “The government of the United States has been emphatically termed a government of laws, and not of men.” The bedrock foundation in this country, since inception, has been the adherence to the rule of law. Equality under its protections, as well as equality of its application, is the doctrine by which we have operated as a nation for more 200 years. To place one man outside of that framework would undermine the basic principles under which generations of Americans have lived.