Presidential Immunity from Criminal Process: Amateur Hour at the Department of Justice
Widener Law Symposium Journal, Vol. 5, 1999
Posted: 3 Nov 1999
Abstract
This article reviews the constitutional question of presidential immunity from criminal process in light of decisionmaking during Watergate and the Clinton crisis. I first examine all of the significant argumentation on the immunity issue during Watergate. In particular, I highlight a previously unknown 1973 memo arguing in favor of immunity by Robert Dixon, then head of the Office of Legal Counsel in the Department of Justice. I provide my own structural arguments in favor of immunity and answer common objections. I then turn to the implementation of the DOJ policy on immunity during the Clinton crisis. I argue that Attorney General Reno should have considered the issue of immunity in January 1998 during her deliberations over whether to assign the Lewinsky matter to independent counsel Kenneth Starr. Considerations of constitutional law and DOJ policy should have led Reno to assign the Lewinsky matter to Congress. I argue that a referral to Congress would have been in the public interest and the interest of both political parties. Attorney General Reno's blunder therefore had much to do with how the Clinton crisis played out.
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