Can a sitting US president be indicted?

Although he hasn’t formally agreed to a meeting, President Donald J. Trump is now informally preparing for a potential interview with Special Counsel Robert Mueller, according to a CNN report that cited unnamed White House officials. 

There’s no evidence the special counsel is pursuing criminal charges against the president. Last week, Mueller stated Trump is not a “criminal target” of his investigation “at this point.”

But whether Mueller, who is examining Russian interference in the 2016 United States elections, has the authority to indict a sitting president is a hypothetical question with no certain answer or precedent. Debate over the point has long engaged and divided the American legal community.

“Anyone who tells you that the answer is clear is wrong, not to mention contradicted by equally sure, equally wrong people on the other side,” says Brian Kalt, law professor at Michigan State University.

According to a New York Times report, a majority of constitutional scholars argue a president cannot be indicted while in office, and thus cannot be prosecuted. Three constitutional lawyers who spoke with WikiTribune for this story agree scholarly opinion tilts in favor of the president.

The problem is often traced back to the U.S. Constitution, which simply doesn’t say if a president can be indicted while in office.

The role of Congress in punishing a sitting president is more defined than it is for the judicial branch – that route being impeachment. A majority vote of the House, and a two-thirds-majority vote of the Senate is the clear constitutional path for removing a president who has committed “treason, bribery, or high crimes and misdemeanors.” With such an explicit mandate, most constitutional scholars see impeachment as the only way to remove a president from office.

Never tested

In the absence of clear language in the Constitution, an argument in support of an indictment can be made. But an indictment would only be effective if prosecutors are willing to take on what would be a complex and lengthy legal fight. On two previous opportunities to do so, federal prosecutors balked.

The first occurred during the Watergate scandal in 1973, when a grand jury classified President Richard M. Nixon as an “unindicted co-conspirator” in a conspiracy to obstruct justice. The ruling assigned guilt to Nixon, while avoiding a potential legal firestorm.

The second came in 1999, when President Bill Clinton admitted to lying to investigators about sexual contact with a White House intern. Special prosecutor Kenneth Starr, appointed to independently investigate the president, contended he could prosecute the president, but chose not to do so.

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Argument for ability to indict

The argument supporting indicting a sitting president lies in the principle that “even the president is not above the law.” Ronald Rotunda, a legal advisor to Starr during the Clinton investigation, wrote that line in a now-relevant memo, recently brought to light by the New York Times.

While no explicit language permits the prosecution of a sitting president, no explicit language says the office is immune from the same laws that apply to all Americans.

Constitutional scholar opinion: Eric Freedman, law professor at Hofstra University, rejects the idea that the Founding Fathers were in favor of presidential immunity. He even goes as far to argue that being prosecuted, or even imprisoned, doesn’t necessarily mean a president is removed from office.

“It may indeed be possible to conduct the Presidency from a jail cell,” Freedman wrote in a 1999 Hofstra Law Review article. “Woodrow Wilson after his stroke in 1919 and Ronald Reagan following his prostate surgery in early 1987 were both so incapacitated as to be well-nigh absent. But, through surrogates, the Presidency was conducted nonetheless.”

Founding Father opinion: James Iredell, one of the country’s first Supreme Court justices, believed the presidency came with some special privileges, but rejected the idea that these included being immune from legal prosecution. He was explicit on his views during the North Carolina Ratifying Convention in 1788.

“No man has an authority to injure another with impunity,” Iredell wrote. “No man is better than his fellow-citizens, nor can pretend to any superiority over the meanest man in the country. … If [the president] commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.”

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Argument against ability to indict

Similar to “too big to fail” concerns surrounding the world’s largest banks, the argument opposing prosecution of a president is based on the belief that the presidency is too important to be treated as any other office. Richard Nixon’s legal team presented this line of argument when Nixon was being subpoenaed by prosecutors. “If a president were indictable while in office, any prosecutor or grand jury would have within their power the ability to cripple an entire branch of the national government and hence the whole system,” they said.

Constitutional scholar opinion: In a 1997 paper titled Presidential Privilege Against Prosecution, Michigan State University law professor Brian Kalt and co-author Akhil Reed Amar referred to the presidency as “constitutionally distinct” compared with other elected officesWith such enormous responsibilities, Kalt believes the president’s job cannot be impeded before the president is formally removed from office.

“The president cannot be prosecuted until he has left office, and the impeachment process is the only constitutional way to hasten that day,” Kalt told WikiTribune. “But once he has left office, he is fair game.”

Founding Father opinion: Alexander Hamilton is often cited for his position that a president cannot be indicted while in office. He inferred as much in the Federalist Papers in 1778, a document with no authority, but great legal value.

“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law,” wrote Hamilton before becoming the nation’s first U.S. Treasury Secretary.

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Largely a political issue

“The question of whether a sitting president can be charged ultimately turns on which you think is worse: an indicted president or an immunized president who remains in the Oval Office,” wrote George Washington University law professor Jonathan Turley in The Washington Post.

That makes the “indictment” question as much a political matter as a legal one, although theoretically one might follow the other.

“There is one point upon which constitutional scholars uniformly agree,” wrote Turley. “The best course in dealing with a felonious president is to first remove the president from office through the impeachment process and then indict the former president in the wake of the Senate conviction.”

In both the Nixon and Clinton cases, Congress undertook the arduous yet constitutionally sound process of impeachment. Nixon resigned before his ouster. Clinton was allowed to finish his second term after a settlement was reached.

Getting two-thirds of legislators to turn against the president was plausible in 1973 and 1999, years when parties opposing the president controlled congress. Nixon was saddled with a strong Democratic majority in both the Senate and House, while Clinton dealt with a smaller but formidable Republican majority in both the Senate and House.

Trump doesn’t face the same congressional hostility. This is especially true in the House, in which Republicans control 46 more seats than Democrats.

This calculus could change after the 2018 midterm elections – the ruling party in either or both houses could switch hands.

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Further questions

  • Is there a legal difference between crimes committed before a president takes office and crimes committed while in office?
  • If Robert Mueller concludes Trump obstructed justice by trying to impede FBI Director James Comey’s investigation, could Trump argue he was carrying out the duties of his office?
  • What might be the long-term political ramifications if Trump, or any other sitting president, were to be criminally indicted and prosecuted?
  • Does a pre-conviction pardon rule out double-jeopardy?
  • Does the Constitution’s statement, “but the Party ‘convicted’ shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” establish a process of trial and conviction first in the legislature, followed by an indictment of the executive?
  • Add additional questions here

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