Yes, A President Can Be Indicted While In Office

Gilbert_Stuart_Williamstown_Portrait_of_George_Washingtondonald_trump_president-elect_portrait_croppedBelow is my column in the Washington Post on the question of whether a president can be indicted while in office.  Many academics believe that there is an implied immunity from such indictments in Article II of the Constitution. I do not agree as explained in the column below.  Once again, I have stated that I do not see compelling evidence of any prosecutable crimes against President Trump. However, if such evidence did arise and satisfied a grand jury, the Special Counsel could indict even before any impeachment.

The news this month is full of accounts of chief executives facing indictments. In Missouri, Gov. Eric Greitens has been charged with criminal invasion of privacy. In Israel, Benjamin Netanyahu is expected to be indicted on charges of “bribery, fraud and breach of trust.” Both men are expected to stay in office despite criminal charges. The cases highlight a looming question in Washington about whether President Trump could also be indicted in office.

With 19 people charged by special counsel Robert S. Mueller III (including five cooperating witnesses), some believe a case against Trump is imminent. “I’d bet against the president,” a lawyer for a target of the Russia probe told Politico. But even some of Trump’s critics assert that, unlike governors or foreign leaders, the president of the United States cannot be indicted while in office. Many scholars like Yale professor Akhil Reed Amar insist that “The Framers implicitly immunized a sitting president from ordinary criminal prosecution.”

The “implicit” part is the problem. This remains a matter of interpretation and, in my view, a faulty and dangerous one. The case for collusion or obstruction of justice does not yet appear to exist, but if it did, Mueller could indict the president.

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. This debate has long entertained constitutional law professors, alongside other parlor-game questions like presidential emoluments, self-pardons and presidential obstruction. The Trump administration has the dubious distinction of moving all of these questions from the realms of the hypothetical to the actual.

There is one point upon which constitutional scholars uniformly agree: 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. That is no favor to a president. Impeachment is not subject to the rules of criminal procedure and does not include most of the due process protections afforded to criminal defendants such as evidentiary protections and prohibitions against hearsay evidence. It can also undermine a criminal defense in a later prosecution by inducing statements from a president that could later be used against him in a criminal trial.

Impeachment is hardly a reliable answer to presidential transgressions. First, the crimes of a president may be popular. (The public overlooked Abraham Lincoln’s blatantly unconstitutional unilateral suspension of habeas corpus.) Second, a president’s party can control one or both houses of Congress and simply shield the party leader from removal.

There are times when a criminal prosecution may be the only practical answer for a criminal chief executive. In the case of Illinois Gov. Rod Blagojevich, years of alleged special dealing produced no impeachment. Only after he was charged in office did the Illinois legislature vote to remove him. But is a president inherently different from a governor? When he was solicitor general of the United States, Robert Bork wrote a brief saying that a vice president (like Spiro Agnew) could be indicted in office but not a sitting president. Leon Jaworski, the Watergate special prosecutor, disagreed and suggested that such an indictment might be possible. Recently released material related to the Clinton impeachment shows that the staff of independent counsel Kenneth Starr prepared a memo supporting the indictment of a president and drafted indictments for Bill Clinton.

The Justice Department itself concluded during the Clinton administration that “[n]either the text nor the history of the Constitution” is “dispositive” on this question but has rendered an internal opinion against indictments of a sitting president as a matter of “considerations of constitutional structure.” Mueller (who is supposed to follow the “rules, regulations, procedures, practices and policies” of the Department) may consider himself bound to this guidance and put evidence of any crime in a report to Congress for possible impeachment.

But what if Mueller didn’t? A Trump indictment would need to overcome two common “inferential” arguments for presidential immunity based on “the uniqueness of the president himself.”

The exclusivity argument

The leading argument against indicting a sitting president is that the Constitution does not say you can do it. There is an enumerated process for removing a president, and that is impeachment: “Judgment in Cases of Impeachment shall not extend further than to removal of office,” it says. But impeachment is a mechanism for Congress to remove, not punish, a president. The Framers were acutely aware of Parliament’s abuses with forms of legislative punishments and fines. They barred such “bills of attainder” and further limited the function of impeachment to removal.

If impeachment is about denying someone the powers of an office, indictment is about holding an individual liable for criminal acts. Impeachment is about the office while indictments are about the individual. Judges, too, can be impeached — even from positions of lifetime tenure — but nobody holds that they cannot also be charged and convicted while still on the bench. Rep. Alcee Hastings was a federal judge in Florida when he was indicted in 1981. He stood trial in 1983 and was acquitted. It was not until 1988 that Hastings was impeached and later removed from the bench. Likewise, the chief executives of states (with many of the same powers as presidents) have been indicted in office, including the recent indictment of Greitens.

Constitutional provisions often require interpretation, including those affording greater protections under the 14th Amendment or barring the death penalty for minors. But those interpretations are based on the extension of an explicit protection while presidential immunity would create a sweeping protection. There is no evidence in either the text nor from the Constitutional Convention of any intent to create immunity for a president from indictment, even though the Framers spoke and wrote at length on the powers of the presidency.

Advocates for presidential immunity rely heavily on one line by Alexander Hamilton in “The Federalist Papers”: A president, he said, “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.”

Harvard Law professor Cass Sunstein insists that this quote “means you can’t indict and try a sitting president. He has to be removed first.” It really does not. In Federalist 69, Hamilton was assuring his contemporaries that they did not have to fear the creation of a “single magistrate.” He made this statement to contrast to “[t]he person of the king of Great Britain [who] is sacred and inviolable.” He was not expounding on inherent immunity and would hardly be making such an implied argument in an essay designed to quell concerns over presidential powers. Hamilton was assuring readers that a president could be stripped of his office and still prosecuted under the Constitution.

As the Hamilton essay suggests, the Framers were worried about the powers of the chief executive, and such immunity would presumably weigh heavily in that debate, as it should in our current debate. Reading that immunity into the Framers’ silence would permit a radical expansion of the powers of the presidency — something most textualists and civil libertarians resist.

The functionality argument

Immunity advocates also argue that, regardless of the lack of textual basis, there is a practical reason the president should have immunity. After all, an indictment would prevent a president from carrying out his duties, particularly if he were sent to jail. In 1973, the Justice Department insisted that any indictment would be an unconstitutional burden since a president is “the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.”

That overwrought analysis ignores a couple practical considerations. First, it is highly unlikely that a president would be tried, let alone convicted, while in office.  Not only do judges defer greatly to the schedule of presidents, but investigations and pretrial motions can take years.  Second, many functionality arguments focus on the image of a president being sent to prison. Yet, to the extent that is a constitutional concern, it concerns not the indictment or the conviction, but the sentence. Judges have discretion on sentencing including both the conditions and the timing. This can include an order to allow a president to remain free depending appeals or a date of incarceration after leaving office.  Even when sentenced, appeals can take years. Finally, if a trial or its aftermath is too demanding, there is the 25th Amendment that allows a president to voluntarily (and temporarily) transfer powers of his office.

The functionality argument also ignores countervailing case law. Bill Clinton spent four years advancing extreme interpretations that allowed him not to appear for a civil deposition in the Paula Jones civil lawsuit — or to seek its dismissal. The Supreme Court ruled against him in Clinton v. Jones in 1997. Yet, despite this rejection of immunity in civil litigation, academics still argue that the president could refuse to do so in a criminal prosecution on the same failed claims. Moreover, it is accepted that a president like Trump can be subject to years of intense investigation by a special counsel and is not immunized from the “distraction” of constant demands for responses, answers, testimony and privilege assertions.

The dysfunctionality caused by presidential immunity should be a greater concern for citizens than the constitutional crisis brought on by an indictment. An indicted president is a terrible proposition. But so is the continuation of a presumed felon in office — one who clings to power as a shield from accountability. If a president is immune, his supporters in Congress could prevent his removal while the statute of limitations runs out on certain crimes. Conversely, if Congress is shielding the president, an indictment can force him to address his crimes.

Admittedly, the interpretive approach against implied immunity also bars some implied interpretations that can limit presidential powers like presidential self-pardons. Just as the Constitution is silent on prosecuting a president (and thus does not bar such prosecutions), it is also silent on a president granting himself a pardon. Such pardons are presumptively permissible for the same reason that immunity is impermissible. There is no stated limit on the pardon power. Of course, if a president were to issue such a self-pardon, it would likely seal his fate for impeachment. Both the possibility of indictment and self-pardon allow for presidential crimes to be put squarely before the public.

In the end, the Constitution does not protect us from a criminal in the Oval Office. It merely gives us options in dealing with a felonious president.

Jonathan Turley was the lead defense counsel in the last impeachment trial held by the Senate (of Judge Thomas Porteous) and testified in the Clinton impeachment hearings as a constitutional law expert.  He is the Shapiro Professor of Public Interest Law at George Washington University

63 thoughts on “Yes, A President Can Be Indicted While In Office”

  1. The minds of all the framers were educated in a foundational manner by the English Civil War which culminated in the victory of Parliament over the King and the beheading of the King for crimes against the commonwealth and the people. It was that spirit that drove much of American colonial politics and the vision they had for a democratic republic without a monarchy. Because of this I would argue if anything is implicit in this matter it is that no chief executive would be immune from the law—not during his Presidency nor afterward. He can only be removed from office via impeachment not prosecuted. The President receives no immunity by virtue of his office from any criminal acts he may have committed either previous to or during his term of office whether or not it may be related to his official duties. I think it far, far more likely that Trump will face charges having to do with laundering money and fraudulent business dealings to enrich himself and his company than anything involving the Russian government or anything having to do with the 2016 election. If our system is to have any integrity whatsoever then it is especially important that those in high office are subject to indictment and prosecution for criminal acts just like any other citizen. Otherwise the phrase equal protection under the law is an utter meaningless phrase.

  2. Look at “Crazy Abe” Lincoln’s wholly unconstitutional “Reign of Terror”.

    Look at the coup d’etat, AKA the JFK assassination, conducted by Allen Dulles.

    Look at the crimes of Hillary Clinton, proven by James Comey then abrogated by James Comey in 15 minutes.

    America is up for grabs.

    The law doesn’t matter.

    It’s WINNING, stupid!

  3. Trump has been and is a national security threat period. He himself could not pass a FBI clearance. The Trump Putin ticket will go down as the greatest con-job of all time..

    1. The Trump Putin ticket will go down as the greatest con-job of all time.

      The allegation there is a Trump Putin ticket will go down as the greatest con-job of all time..

      There, fixed it for you.

      Your welcome.

    2. so much for the progressive secular socialist marxist leninist view for the day… REJECTED. Not to worry it will change by tomorrow

    1. Seig me no heils komarade we do not serve the party in either of it ‘s national socialist nor internationalist forms. no matter what the enemies domestic print. F; off nazi.

    1. The media is doing exactly what 1A directed them to do. Kudos to them.

      First of all the 1A doesn’t direct the media to do anything. Secondly, if this were a game of What’s My Line? the MSM and anti-Trump crowd would look like deer in the headlights trying to sift through these hints with only Clinton, Obama and the DNC on the panel:

      – I set up an illegal server in my home for government communications
      – I sent and received classified information using that non-secure illegal server.
      – I controlled the primary process so that only one candidate had the chance to secure the nomination.
      – I funded the opposition research that led to a phony dossier used to spy on a candidate for president.
      – I enabled the IC to illegally spy on and unmask U.S. citizens.
      – I blamed a YouTube video for the attack that killed 4 Americans including our ambassador to Libya and then jailed the creator of the video.
      – I weaponized the IRS to silence conservative groups leading up to a general election.
      – I allowed the sale of 20% of our uranium reserves to be sold to the Russians and did nothing to stop money from being laundered to a private American foundation.
      – I delivered a a pallet worth millions of dollars to Iran and lifted sanctions that enabled Iran to continue their nuclear weapons program.
      – I’m not President Trump

      1. LOL. If all you have are conspiracy theories about Clinton, and some have already been disproven, you got nothing. Read a newspaper and catch up

      2. Clinton “controlled the primary process”..?? Then Bernie did pretty well considering. The Clinton machine was generous enough to let Bernie win several smaller states and a few big ones too. One should note that Bernie was never an actual Democrat. He joined the party at age 74, then expected their nomination only weeks later.

        “Phony Dossier”..?? Christopher Steele was a career officer in Britain’s M 16 specializing in Russian affairs. His work was long shared with the FBI and State Department. What’s more, Adam Schiff’s rebuttal to the Nunes memo, which was greatly under-reported due to Florida shooting coverage, demonstrated that the FBI had other sources corroborating Steele’s dossier. That FISA warrant wasn’t just based on Steele’s findings.

        That youtube video caused riots in Egypt at exactly the same time.

        “Weaponized the IRS”..?? Those so-called ‘social welfare organizations’ were clearly conservative activists performing no social welfare whatsoever! The Republican investigations had the intention, and effect, of intimidating the IRS. One should note that no IRS official was ever indicted for wrongdoing. Nor did any Inspector General’s report rule the IRS lacked justification in scrutinizing those ‘charities’.

            1. If all you have are conspiracy theories about Clinton, and some have already been disproven, you got nothing.

              At least Peter gave it a go; you’ve told me nothing other than you recognize Clinton is connected to items on that list and that you’ll knee-jerk defend her over the rule of law.

              some have already been disproven? LOL! “Yes your honor, my client has proven to be a hideous monster, but she hasn’t done all of the horrible things people claim she has.” And here you are trolling on a legal blog instead of being retained by Clinton. What a shocker.

              And thank you for playing.

    2. Too bad the spineless left is so easy to program in their sordid little collective and speaking of enablers how is Comrade Clilnton these days?

  4. When you indict Presidents for political crimes you’ve consigned your country to banana republic status. That’s why the DOJ has a policy against it and why this discussion is moot.

    1. We ARE now a banana republic. Staffers are slipping and sliding on banana peels, all the way out the door these days.

  5. My opinion of the framer’s intent is they would not want a President immune from criminal prosecution, but they would first want the President removed from office through the impeachment process. The reason being, they would not want a President to be in office and distracted from his constitutional duties as this would potentially harm the people.

    If the evidence is produced against President Trump supporting an indictment and impeachment or an impeachment and indictment, or whatever method of removal from office is chosen, that that would take place concurrent with indictments of all current and former government officials that violated the rule of law. And their sentence would be to strap on skates for an eternity in hell. Why? Because if they only indict President Trump, they will rip this country apart.

  6. Using this “measuring stick” shouldn’t honest prosecutors be focusing on the Bush Administration? Material evidence is being lost every day we wait. Seems like an extremely easy indictment by a Grand Jury.

    Refresher: Bush’s torture attorneys at the U.S. Department of Justice appeared to intentionally subvert the justice system with intentional legal malpractice. At minimum, they should be disbarred for life from ever practicing law. These same law-men then adopted torture techniques from one of the worst theocracies in world history – torture techniques from the Spanish Inquisition. The same attorneys that located a gulag off-shore in Cuba to obstruct legal due process.

    These attorneys knowingly committed legal malpractice in order to game the Justice System and subvert justice. Some lower ranking “order-takers” – who never attended law school – served prison time. Some subordinates that refused to commit felonies and war crimes served prison time. The Bush DOJ also threw the CEO of Qwest Communications in prison for refusing to commit the felony crime of warrantless wiretapping (6 months before 9/11 where no exigent circumstances existed).

    Material evidence is being lost every day we wait to indict. Why won’t the U.S. Department of Justice appoint a Special Prosecutor and Grand Jury?

  7. This article only increases the rebel’s clamor for the unseating of the duly elected official.

      1. Does a president’s being “duly elected” mean that he can do no wrong, commit no crime?

        That depends. Is this a president of a constitutional republic or a utilitarian democracy? If the former, then no. If the latter, likely yes.

  8. I’ll just point at the majority of registered voters who selected President Trump to do exactly what he is doing and only say that sometimes counter revolutions sometimes tend to upset the revolutionaries who are finding out their 100 year plus effort is being shredded before their unbelieving eyes. As the the song goes “You aint seen nothing yet.”: But ignorance is bliss untill you find out ignorance is no excuse.

      1. Congratulations, you can spell and do math, but your reading comprehension needs work. Here is what Michael wrote:

        the majority of registered voters who selected President Trump.

        Thanks for the effort though.

        1. The majority of registered voters did not elect the president. Voter participation in the 2016 presidential election wasn’t 100% by any stretch of the imagination.

          1. You and Nope suffer the same affliction: lack of reading comprehension. One more time and I’ll type slower and with better annunciation (my emphasis added).:

            the majority of registered voters WHO SELECTED PRESIDENT TRUMP. NOT voter participation, NOT all registered voters. Just the registered voters that voted for President Trump.

            I hope that clarifies Michael’s actual words.

        2. A combination of registered voters one a block of 40% of the total who chose Trump as far better choice and Clinton as not acceptable at all. added to the a portion of the GOP who are not RINOs, added to some breakaway IDC’s added up to 55% of the electoral while many in the left refused to vote for Hillary and stayed at home leaving her with 45% IS a majority. But the independents as a group provided the largest amount and controlled the election

    1. So what do you believe the final condition of the US should be, following a successful Trumpian revolution? What would be in the manifesto?

      1. A better life under in our representatitve Contitutional Republic free from the foreign leftist ideology influence of Socialism by any name. We have our maniefsto The Constitution preveded by the Declaration of Independence and wanna be dictators are not included especially foreigners we already rejected 240 years ago.

  9. If all of this and the companion conversations true how come they weren’t used against Obama and number how are you going to handle the consequences.The last general election didn’t teach you anything? Gladly arrange for another round of lessons.

  10. Think Trump will follow Nixon’s example, resigning from office before he is impeached and then getting a Presidential pardon from toady Mike Pence. However, when it comes to Kushner (and possibly Ivanka Trump) this is a very different matter. I sincerely believe Kushner has abused his position in the White House to obtain unguaranteed loans to support his/his criminal father’s failing real estate business and, as such, is open to a term in prison.

    1. On what factual basis to you base your sincerity? Just once I would like to see something to back up in the ways of something other than ill founded personal opinions. One can easily point at the Paris Accords, the Iran agreement and other similar one man non-deals where Obama ignored the requirement for approval from the Senate but let none dare call it valid much less a treaty. DACA another example.Ignoring the Constitution is not one of the ways authorized to make change. They are not deals, not agreements and far from being legal treaties just the lonely plaintive opinions of a failed legacy creator.

      So I find sincerity unbacked by any thing close to facts in evidence …. rejectible. more like mystical other world wishful non thinking.

      Is the left even capable of objective facts with anything anything at all besides … nothing.

        1. Excerpted from the article linked above:

          “Neither the 2016 Times report nor the Journal’s story in November said much about how the United States might have identified the Russians. Now, thanks to a report in the Dutch newspaper de Volkskrant by Huib Modderkolk, it appears that as early as 2014 Holland’s General Intelligence and Security Service (AIVD) had hacked into Cozy Bear’s innermost workings—including, astonishingly, its internal security cameras. And AIVD spent as long as the next two and half years watching Cozy Bear do its dirty work, including the DNC break-in. “Unbeknownst to the Russians, they could see everything,” reported de Volkskrant.”

          Heaven bless the wooden shoes, windmills, dikes and tulips of our magnificent Dutch allies.

          1. Diane – there is no question that attacks were made on the DNC and RNC servers by the Russians. However, did Cozy Bear download the Clinton emails or was it an inside job? We know that Clinton’s homebrew server was attacked several times and shutdown to prevent loss of information. However, they were not following standard security procedures and had open ports to allow for incoming Top Secret documents. Opening these port left them vulnerable to attacks all the time.

        1. They are agreements between one individual and some other country and carry no weight unless approved by the Senate.

    2. Do you think asking the same false premise question over and over will get a different answer?

      1. Senate can annul Iran Agreement if they want to but they would be fools to do so. US already has enough on its plate with N.Korea and now a militarizing China. Europe is perfectly happy with it, so should US. It took a great deal of time and effort to hammer out.

  11. If a sitting President can’t be indicted, by what magical forces are all criminal statutes of limitation suspended while the President is in office? I concur with Turley.

    1. No magical force just the impeachment (grand jury indictment phase) process followed by the trial and conviction. No subjective mysticism. Just follow the constitution like any good citizen which … come to think of it… might be hard to prove where most lawyers are concerned – my subjective personal opinion of an objective examination.

      1. Excerpted from the article in The Nation linked above:

        “By hacking into Cozy Bear, AIVD gained enormous amounts of live, real-time intelligence, allowing them to “trace the Russian hackers’ every step.” In the words of de Volkskrant: “That’s how the AIVD becomes witness to the Russian hackers harassing and penetrating the leaders of the Democratic Party, transferring thousands of emails and documents.… And the AIVD hackers have seen it happening before their very eyes.'”

        Who’d’ve thunk that hackers could be hacked? Don’t the hackers know how to defend themselves against hacking? Maybe there is no defense against hacking.

  12. The International Criminal Court has plenty of evidence on Trump. He is a mass murderer, war criminal.
    The U.S. courts are a joke.

    According to U.S. and International Law all the U.S. / Israeli invasions are Wars of Aggression, War Crimes & Crimes Against Humanity.
    These are the same crimes the Nazis committed.
    Millions of men, women and children have been murdered / maimed due to these Illegal U.S. / Israeli invasions.
    Washington, DC = Nazi Berlin

    http://buenavistamall.com/bushobamatrump3.jpg

    Donald Trump’s War Crimes
    by Marjorie Cohn
    Professor Emerita at Thomas Jefferson School of Law
    http://www.huffingtonpost.com/entry/donald-trumps-war-crimes_us_58e7a2fae4b06f8c18beeaf9

    1. seig me No heils Nazi we don’t serveThe Party and your kind should be deported if not worse and take the Huffington post with you.

    1. Ah yes, the old “it makes sense to me” approach to Interpretation of the Constitution. I vaguely remember that approach from law school. Did it originate with Bushrod Washington?

      1. Don de Drain – I know the argument is made for either side, I just picked mine, given the evidence laid out by Turley. There are nine justices on the SC, rarely does a decision come down where they all voted on the same side. Sometimes I cannot figure how they twisted the Constitution to get the decision they did. I still don’t understand Robert’s decision in the ACA, for instance.

        1. Roberts was owned by Obama’s shaming of them in public. He wanted to get back in the Messiah’s good graces.

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