Argument about presidential immunity bumps up against 12th Amendment
There is an apparent blemish in Laurence H. Tribe’s reasoning that suggests that the Constitution’s authors would support the indictment of a sitting president (“Constitution rules out immunity for sitting presidents,” Opinion, Dec. 13). He argues that impeachment alone would give the vice president — who would then be president — the power to pardon the ousted president. Tribe writes, “The president and vice president run as a ticket. No president selects a vice president who wouldn’t strongly consider” giving “the president a full pardon shortly after he becomes the former president.”
However, prior to the 12th Amendment in 1804, the vice president could be, and indeed was, a rival of the president and thus less likely to be expected to pardon someone who had just been convicted of a high crime or misdemeanor. In Article 1 of the Constitution as ratified, the candidate who received the most Electoral College votes was president, while the runner up — a rival — was vice president.
It was President John Adams’s archrival, Thomas Jefferson, as runner-up and thereby his vice president, who set this change into motion. While Tribe may be correct that sitting presidents could be indicted, this central piece of his analysis is uncharacteristically flawed.