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The Constitutional and Legal Questions Raised by the Scooter Libby Indictment - And Some Answers


Wednesday, Nov. 23, 2005

My inbox runneth over. In the aftermath of the indictment of Scooter Libby, I've been peppered with queries and follow-ups about the constitutional issues at stake. What follows are some of the questions I've received, and some of my answers.

Q: Immediately after the indictment, Libby resigned. Did the Constitution require this?

A: Nothing in the Constitution prohibits an indicted official from continuing to hold executive office. Vice President Aaron Burr continued to hold office even after he had been indicted (by both New York and New Jersey) for the murder of Alexander Hamilton. In fact, while under indictment, Burr, as the Senate's official presiding officer, sat in the chair during the impeachment trial of Supreme Court Justice Samuel Chase.

Q: So the judge was arraigned before the murderer, rather than vice-versa?

A: Hey, that's my line.

Q: If no law forced Libby to step down, why did he resign?

A: First, he may need to focus all his energy on the criminal case. Second, he could have been fired at will. Had he tried to stay in office, the political pressure to can him would have been overwhelming.

Q: But isn't Libby innocent until proved guilty? In fact, he has pleaded not guilty.

A: Actually, a person is guilty at the very moment he commits a crime. But until he is convicted, he is presumed innocent for certain criminal law purposes.

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For example, in his trial, the mere fact of his indictment is not legal evidence against him that would allow a jury to convict him. Instead, the burden is on the government to prove at trial by all sorts of other evidence that he did in fact do what the indictment alleges.

But because of his indictment he may be treated--both by the law, and by politics--far worse than an unindicted person. Legally, for example, he may be forced to post bail. (In some cases, indicted persons are even held without bail, where the preliminary evidence against them is very strong and the crime is extremely serious.) Politically, there is nothing wrong with insisting that high government officials clear a higher ethical bar than the "not-yet-convicted-but-looking-pretty-darned-guilty" standard.

Q: Are you saying that Libby looks guilty to you?

A: I don't know enough to have a firm opinion. But the federal government, in its indictment, is necessarily saying that Libby looks guilty to them.

Q: What do you mean "them"? Isn't that just the opinion of one person--i.e., Patrick Fitzgerald, the special prosecutor?

A: For these purposes, Fitzgerald is the government.

Q: I thought the Constitution (in Article II, section 1) vests all executive power in the President.

A: You thought right. And the Supreme Court the (in)famous 1988 case of Morrison v. Olson thought wrong. That's the case in which the Court seemed to allow a federal special prosecutor to act somewhat independently of the President and the Attorney General, pursuant to a 1978 statute that allowed judges to pick independent counsel like Alexia Morrison, Lawrence Walsh, and--later--Ken Starr.

That law has now, thankfully, expired. Fitzgerald operates under very different rules. He was hired by the executive branch itself and can be fired at will by the President via the Attorney General (who serves at the pleasure of the President).

Q: So if Bush wants to protect Libby, he could can Fitzgerald?

A: Legally, yes. But politically this would be extremely costly. Younger readers may benefit from a reminder of the "Saturday Night Massacre"?

Early on in Watergate, the Nixon Administration named a special prosecutor, Archibald Cox, and then fired him when he seemed to be getting too close to the truth of high-level criminality. Nixon paid a huge political price for this sacking--done on Saturday Night by an executive branch official named Robert Bork.

Q: Is there any way that Bush could pull the plug on Fitzgerald more quietly?

A: Well, there's always the pardon pen. The President can pardon a person any time after a crime has occurred.

Q: Even before conviction?

A: Yes, even before indictment -- as Ford pardoned Nixon.

Q: So why doesn't Bush pardon Libby now? Otherwise, Libby might be tempted to implicate higher-ups like Cheney in order to save his own skin.

A: A pardon can be very politically costly; Ford's popularity dropped dramatically after the Nixon pardon, and probably cost him the election in 1976.

Q: But Bush is a lame duck--he doesn't have to worry about re-election. Nor does he have to worry about hurting Cheney's chances to run in 2008, since Cheney is obviously not a candidate.

A: But Bush does have to worry about the congressional races in November 2006.

Q: Fine, so he can wait until Christmas Eve, 2006 and then officially deliver Libby a present--a presidential pardon with a nice red ribbon.

A: Actually, this wouldn't be completely unprecedented. Lame-duck papa Bush did give Caspar Weinberger a Christmas pardon in 1992, right after the election, and thereby forced special prosecutor Lawrence Walsh, who had indicted Weinberger, to fold up his tent.

Q: So Bush doesn't actually need to pardon Libby to keep him quiet now; can't he just somehow get the word to Libby to clam up and wait for an eventual pardon?

A: Now you can see why Senate Democrat Minority Leader Harry Reid recently called on Bush to publicly promise not to pardon Libby. Interestingly, though, Bush has so far made no such promise.

Q: Let's suppose that Libby somehow implicates Cheney. Could Fitzgerald indict the Vice President?

A: Legally, yes. A sitting VP can indeed be indicted and forced to stand trial. Remember Burr. Also remember that Vice President Agnew was indicted, and then resigned.

Q: But aren't you on record as saying that a sitting President cannot be forced to stand trial (outside of an impeachment court)?

A: Yes, that's my view--and I am hardly the only one who thinks that the Presidency is constitutionally unique in this way. John Adams and Oliver Ellsworth (who later became Chief Justice) thought the same thing at the Founding, and in the Nixon era, this was the view held by a wide range of scholars, from Charles Black on the left to Robert Bork on the right.

Even the Watergate special prosecutors declined to argue that they could indict Nixon himself. That's why Nixon was famously named by the grand jury as "an un-indicted co-conspirator." And Ken Starr likewise thought that he had no authority to indict a sitting President.

Q: OK, back to Cheney. If he is indicted, must he resign?

A: No; remember the Burr example.

Q: But what if Bush asked Cheney to step down? In the New York Times a few weeks ago, Nick Kristof went even further, saying that unless Cheney right now comes clean publicly about what he knew and when he knew it, the President should demand his resignation.

A: As my brother Vikram wrote in his column in this space two weeks ago analyzing ABC's new drama, "Commander in Chief," constitutionally, Vice Presidents aren't like exactly chiefs of staff or cabinet officers, who serve at the pleasure of the President. The Vice President has a constitutionally guaranteed term of office--four years--that can formally be cut short only if he is impeached and removed, or dies, or voluntarily resigns, or is convicted of a federal crime that authorizes removal as a criminal punishment.

Q: OK, that might be true as a matter of constitutional law, strictly construed. But how about constitutional etiquette? Should Number Two insist on staying if Number One asks him to go?

A: Vik explored this question in depth too. Under the original Constitution, a person became Vice President by coming in second in the race for President. A VP could well be a leading adversary of the President, and so, of course, VP Thomas Jefferson would have felt no obligation to step down in, say, 1798 if President Adams--his rival, not his senior partner--had asked politely.

Q: But nowadays, Presidents and Vice Presidents are running mates, not rivals.

A: Yes, the Constitution was amended in 1804 to provide a different system. But until the 1960s, if a Vice President stepped down, the office would simply lie vacant--and because a vacancy should be avoided if at all possible, a Vice President would have more than a leg to stand on if he refused to leave even after the President asked him to.

Q: But now, there is a way of filling a vacant Vice-Presidency, thanks to the Twenty-Fifth Amendment, drafted and ratified after the JFK assassination. Doesn't this change the equation?

A: Yes, and that amendment also envisions temporary transfers of presidential power back and forth between a President and a Vice President in case of temporary emergencies--say, surgery on the President. But this system will not work if the President and the Vice President are at loggerheads.

Q: OK, one final scenario: If Cheney were ever indicted, and refused to step down, what would happen if, in the middle of his trial, something happened to the President? Wouldn't Cheney then become President or Acting President? And at that point, wouldn't the trial have to stop--since there seems to be widespread agreement that a sitting President (or Acting President) cannot be forced to stand trial in criminal court? And if all of that is so, aren't there all sorts of possible ways for unethical actors to manipulate the system?

A: Hmmm, this is beginning to sound interesting. Do you know any of the script writers at ABC?

Akhil Reed Amar teaches constitutional law at Yale, and is the author of America's Constitution: A Biography, which (among other things) features extensive analysis of the Presidency and Vice Presidency.

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