U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)
Discussion of Executive Privilege and Immunity from Prosecution
Criminal Prosecution of an Incumbent President
 The most interesting discussion is in the case of U.S. v. Isaacs, wherein the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner.   Kerner was appointed as a Federal Judge and prosecuted for actions taken while he was Governor of Illinois.

He raised the issue that he could not be prosecuted criminally prior to a formal impeachment conviction.  The 7th. Circuit denied that defense, and cites a long list of officials who were prosecuted prior to their impeachment. The weight of the authorities, hold for the proposition that there is no such legal theory as “absolute immunity from criminal prosecution of a public official? recognized by the courts in the United States.


U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)

  (LawReader Comment: This case includes prosecution of Otto Kerner. Otto Kerner was the Democratic governor of Illinois in 1960. Later he was later appointed a Federal Judge.  While a Federal Judge he was prosecuted for actions taken as governor. His prosecution and conviction occurred prior to impeachment proceedings. The Court held that a civil official does not have the right to forestall a criminal prosecution prior to impeachment.)
 Following a six-week trial before a jury in the Northern District of Illinois, Theodore J. Isaacs and Otto Kerner, Jr., were found guilty on February 19, 1973 of a variety of offenses arising out of their activities on behalf of certain Illinois racing interests in return for bribes of more than $150,000 each. Isaacs and Kerner were both convicted on all those counts of an indictment which charged an 18 U.S.C. 371 conspiracy to violate the Travel Act, 18 U.S.C. 1952 and the Mail Fraud Act, 18 U.S.C. 1341 (Count I); use of interstate facilities in furtherance of bribery, 18 U.S.C. 1952 (Counts II through V) and mail fraud, 18 U.S.C. 1341 (Counts VI through XIII). Kerner was also convicted of perjury before a grand jury, 18 U.S.C. 1623 (Count XIV), false statements to Internal Revenue agents, 18 U.S.C. 1001 (Count XV), tax evasion, 26 U.S.C. 7201 (Count XVI) and false statement in a tax return, 26 U.S.C. 7206(1) (Count XVII). Isaacs was also convicted of tax evasion, 26 U.S.C. 7201 (Count XVIII), and false statement in a tax return, 26 U.S.C. 7206(1) (Count XIX).
 Turning the pages of history, the Supreme Court said in an 1882 decision, United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171, that:
        No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
        It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
        Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, a United States Senator was convicted, among other things, of having taken a bribe in violation of what is now 18 U.S.C. 201. He argued that conviction would expel him from the Senate and that under the Constitution the Senate had sole power of expulsion. The Court rejected the contention, quoted with approval from United States v. Lee, and found no violation of the principle of separation of powers.
        Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100, Mr. Justice Douglas said in his dissenting opinion, Ibid. at 140, 90 S.Ct. at 1682: ‘If they (federal judges) break a law, they can be prosecuted.’ Mr. Justice Black in his dissent said, Ibid. at 141, 90 S.Ct. at 1683, that ‘* * * judges, like other people, can be tried, convicted, and punished for crimes * * *.’
        United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507, a Senator was charged with a 201 violation. The trial court held that the Speech or Debate Clause precluded criminal prosecution. The Supreme Court reversed and found no constitutional violation. The Court said, 408 U.S. at 520, 92 S.Ct. at 2541:
        The sweeping claims of appellee would render Members of Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, 6.
        Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, was concerned with the validity of a subpoena requiring the assistant of a Senator to appear as a witness before a federal grand jury. The Senator intervened and asserted a violation of his constitutional privileges. With reference to the Freedom from Arrest Clause, the Court said, 408 U.S. at 615, 92 S.Ct. at 2622:
        It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. * * *

Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.
        Finally, we have O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, decided January 15, 1974. The Court, although its language was general and perhaps dictum, touched on the vulnerability of judges to criminal process, and said, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674:
• * * we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Exparte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879).
• On the contrary, the judically fashioned doctrine of offical immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress * * *’ Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972).
        Kerner’s argument for the privilege which he claims, is not supported by ‘the precise words used in any prior case, and surely not on the sense of those cases, fairly read.’ Brewster, 408 U.S. at 516, 92 S.Ct. at 2539.
 We conclude that whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches ‘from the operation of the ordinary criminal laws.’
Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has proven to be cumbersome and fraught with political overtones. We believe that the independence of the judiciary is better served when criminal charges against its members are tried in a court rather than in Congress. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct. The issues are heard in a calm and reasoned manner and are subject to the rules of evidence, the presumption of innocence, and other safeguards. 408 U.S. at 519-520, 92 S.Ct. 2531.
 Kerner argues that trial and conviction of a federal judge frustrates the separation of powers concept because the executive branch would indict and prosecute. The Constitution makes all ‘civil officers’ subject to impeachment. The issue, then, is whether any civil officer is subject to pre-impeachment indictment. This presents no separation problem. Brewster points out, 408 U.S. at 522, n. 16, 92 S.Ct. 2531, the barriers, such as indictment, burden of proof, and presumption of innocence, which a prosecutor must face. With co-equal branches of government, the potential of abuse by any one of them is inherent. However, the system of checks and balances, a free press, and public resentment toward any attempted domination all work to preserve the guaranteed independence of each branch.
        On the basis of the text of the Constitution, its background, its contemporaneous construction, and the pragmatic consequences of its provisions on impeachment, we are convinced that a federal judge is subject to indictment and trial before impeachment and that the district court had jurisdiction to try defendant Kerner.

Discussion of Executive Privilege and Immunity from Prosecution

COLUMBIA UNIVERSITY PRESS – This entry is from Wikipedia, the leading user-contributed encyclopedia:
The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by Watergate, a series of scandals involving President Richard M. Nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon.
While acknowledging the importance of the president’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”
 In its opinion, therefore, the Court explicitly recognized the president’s authority to assert executive privilege, but ruled that the use of executive privilege is limited, not absolute. Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president’s right to secrecy. This momentous decision soon led to Nixon’s resignation from the office of president.
                      COLUMBIA UNIVERSITY PRESS –

EXECUTIVE PRIVILEGE, exemption of the executive branch of government, or its officers, from having to give evidence, specifically, in U.S. law, the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides. Efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege. Where criminal charges are being brought against a president, as in the case of Richard Nixon, the claims of executive privilege are weakest; during the process leading to the impeachment of President Bill Clinton, numerous claims made by the White House were dropped when it was clear courts would not uphold them.

The Supreme Court did not reject that claim out of hand; it noted, in fact, “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” As the Court stated, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” This is very similar to the logic that the Court had used in establishing an “executive immunity” defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.
The Court did not, on the other hand, accept Nixon’s privilege argument on the facts of that case. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

The concept of executive privilege is a legally murky one, since the Constitution does not mention it anywhere. The history of the doctrine underscores that point, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the President. As for Jefferson’s claim that disclosure of the document would imperil public safety, Marshall held that the court, not the President, would be the judge of that. Jefferson complied with Marshall’s order, but claimed he was doing so voluntarily

Criminal Prosecution of an Incumbent President
By John H. Kim, Esq.

“….in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.?
Thomas Paine, Common Sense 57 (Philadelphia 1776)
II) Prosecution of Vice President and Other Federal Officials
While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers? of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment. There are numerous legal cases that have firmly established this rule. For instance, in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state of New York and New Jersey. Burr never claimed any immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.

Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew was governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then-Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.?3 (underline added for emphasis)
Subsequently, the Office of Legal Counsel of the Department of Justice, under President Clinton, reaffirmed Bork’s conclusion, stating that “the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.?4 This seems to be, undoubtedly, the current position of the U.S. Department of Justice under the Bush administration as well.

III) The U.S. Constitution and the Judicial Interpretation
Does the Constitution really provide such an immunity exception for the President?
The answer seems to be no for many reasons. Above all, no provision in the Constitution explicitly grants the President immunity from criminal prosecution. The only provision that provides any explicit immunity, for limited purposes, is for Members of Congress while they are in session.5

The most relevant and contentious provision in the Constitution is in Article I, Section 3, Clause 7:

“Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.?(underline added for emphasis).

From this, it is clear that an impeached President can be prosecuted thereafter.

Does this mean an impeachment must always precede a criminal prosecution?

How about the prosecution of a President who underwent but survived an impeachment process? Can such President be still prosecuted while in office?

Many federal judges and Members of Congress, when they were indicted for various crimes, in fact, raised the defense that they could not be prosecuted prior to impeachment
or that prior conviction or acquittal in the courts should bar impeachment by the Congress for the same offenses. However, the courts have largely rejected such defenses.6 In interpreting Art. I, Section 3, Clause 7 (the Impeachment Judgment Clause), the Court of Appeals in U.S. v.Isaacs held that the Clause “does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy…?7

Thus, federal judges such as Hastings, Clairborne and Issacs were all prosecuted first, prior to impeachment. In the case of Judge Hastings, he was even acquitted in a jury trial but still impeached by the Congress subsequently.

In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other. According to District Judge Gerhard Gesell:

“Impeachment trials are sui generic: in several instances in the Constitution, impeachment is distinguished from criminal proceedings….The Framers understood that impeachment trials were fundamentally political….?
IV) Immunity of Federal Officials From Criminal Process
It is to be noted that there is a major difference in the American doctrine of immunity from civil liability and immunity from criminal liability. As one law professor observed, “while courts have invented doctrines of official immunity, they have done so only in civil cases, not criminal ones.?9 In accord with this view, in Imbler v. Pachtman, the U.S. Supreme Court stated that “this Court has never suggested that the policy considerations which compel civil immunity for certain government officials also place them beyond the reach of the criminal law.?10

 In denying immunity for criminal conduct, the Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.?11

Thus, it is not surprising that the interest of criminal justice and public interest overruled the claims of executive privileges of the President, as Nixon was forced to turn over records of his conversation with his advisers in response to a subpoena in a criminal case.12

 Due to the disclosure of the White House tapes and documents relating to the Watergate break-in, Nixon became the first President to resign his office as the impeachment proceedings started. Although he was not impeached, Nixon faced the distinct possibility of a criminal prosecution after his resignation. Thus, he sought and received a pardon from criminal liability by his successor, President Ford.

Even the Congress is in agreement with the above general rule that all federal officials are subject to criminal law and process. In the aftermath of the “Watergate? scandal, the Congress established the office of “special prosecutor? under the Ethics in Government Act in 1978. The law, although expired now unfortunately, specifically authorized the special prosecutor (a.k.a. “independent counsel?) to prosecute certain high officials, including the President.13


Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such an immunity.

As the U.S. Supreme Court pointed out long ago, “no man in this country is so high that he is above the law….All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.?20 It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution (“equal protection of the laws?).
“The Secret Downing Street Memo,? The Sunday Times, May 1, 2005.
2 See “Mortality Before and After the 2003 Invasion of Iraq: Cluster Sample Survey,? The Lancet, Oct. 29, 2004 (published online, http://image.thelancet.com/extras/04art10342web.pdf)
3 Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, filed Oct. 5, 1973, D. Md. No. 73-965.
4 Memorandum from Randolph D. Moss, Asst. Attorney General, Re: A Sitting President’s Amenability to Indictment and Criminal Prosecution, Oct. 16, 2000.
5 See Art. I, Section 6.
6 See U.S. v. Isaacs, 493 F.2d 1124; U.S. v. Hastings, 681 F.2d 706; U.S. v. Claiborne, 727 F.2d 845; Burton v. U.S., 202 U.S. 344; and U.S. v. Helstoski, 442 U.S. 477.
7 U.S. v. Isaacs, 493 F.2d 1124, 1142.
8 Hastings v. U.S. Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).
9 Eric M. Friedman, “To Catch a King,? Legal Times, March 19, 1997.
10 424 U.S. 409, 429 (1976); See also Gravel v. U.S., 408 U.S. 606, 627.
11 U.S. v. Isaacs, 493 F.2d 1124, 1144.

12 U.S. v. Nixon, 418 U.S. 683 (1974).
13 See 28 U.S.C. 591- .
14 1975 Report of the Watergate Special Prosecutor Task Force, at 122; See also Ken Gormley, “Impeachment and the Independent Counsel: A Dysfunctional Union,? 51 Stanford Law Review 309, 345 (1999). Gromley states that Jaworski also wanted to help the Congress since Nixon refused to cooperate with the subpoena issued by the House Judiciary Committee.
15 Memorandum dated Feb. 12, 1974, p. 10; See 27 Hofstra Law Review 677, Appendix, 1999.
16 CNN, Jan. 21, 2001.
17 AP, March 6, 2002.
18 See Nuremberg Principles; 1948 Convention on the Prevention and Punishment of the Crime of Genocide; also the 1998 Rome Statue of International Criminal Court.
19 See 28 C.F.R.. 600.1.
20 U.S. v. Lee, 106 U.S. 196, 220 (1882).


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