These are two separate questions: (1) can a sitting president be indicted, and (2) can a sitting president be put on trial.
Spoiler: Probably yes, and probably no.
Let’s start with the first question. There is nothing in the Constitution that says a president can’t be indicted.
On the other hand, the Constitution offers a different procedure for dealing with a criminal president.
The procedure given in the Constitution is this: If there is reason to think a president has committed “high crimes or misdemeanors” (the phrase used in the Constitution), the House investigates, and if there’s basis, impeaches the president. (Impeachmeant is like an indictment.) Impeachment requires a majority of the house.
Impeachment is followed by a Senate trial. If the Senators believe the president is guilty, they remove him from office with 2/3 vote.
The drafters of the Constitution deliberately made it difficult to remove a sitting president.
They also intended Congress to act as a check on presidential power.
In 2016, at the first sign of corruption, fraud, or a foreign influence in the election, Congress should have immediately conducted a meaningful investigation.
Instead, the GOP members of Congress sabotaged any investigations & pushed its agenda through as quickly as possible.
This is important because the only reason we are talking about whether a president can be indicted is because Congress, during the first 2 years of Trump’s presidency, acted as a shield instead of a check.
A former president can, of course, be indicted and brought into a regular criminal court. This, therefore, is what the founders envisioned: Impeach, remove, indict, conduct trial.
Unfortunately, it’s possible that the GOP will continue to shield Trump, no matter what the evidence unveils. Hence, the talk about indictments and trials outside the Senate.
Scholars pretty much agree a president can be indicted. There are a few compelling reasons: First, prosecutors have a duty to keep the public informed. If prosecutors have enough evidence to indict—and believe they have evidence to prove the crimes at trial beyond a reasonable doubt—the public should know.
Another reason is because of the statute of limitations (SOL). Many federal crimes have a 5 year SOL. Filing an indictment tolls the SOL. If a person can sit in the White House and run the SOL, that puts him (or her) beyond reach of the law.
The only reason this question is at all complicated is because, during Watergate and the Bill Clinton hearings, the DOJ concluded that a POTUS can’t be indicted. Current DOJ policy is that a sitting president should not be indicted because an indictment would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
The DOJ, though, is not the final arbiter of whether a president can be indicted. Because this is ultimately a Constitutional question, and because the issue has never been tested in court, we don’t know for sure (but the weight of scholarly opinion is on the side of an indictment being permissible).
There has been speculation about whether Mueller would try to go around the DOJ regs. Fact: We don’t know. He might follow the regs. If he thinks he needs to indict, he may take appropriate steps to go around the regs by appealing to a court.
An indictment, though, is not a finding of guilt. Because we have a presumption of innocence, a finding of guilt happens in court. This raises the question of whether a sitting president can be put on trial.
Dellinger (former head of the DOJ Office of the Counsel & acting solicitor general) argues that while an indictment should be permissible, a trial should wait until the president is out of office.
This makes sense to me—and is probably correct—for a few reasons.
Presumably, a finding of guilt in a criminal trial would mean removing the president from office, which of course is contrary to the procedure given in the Constitution, which makes removal up to the Senate.
This is not only contrary to the Constitution, it also means a jury of 12 people would have the power to remove a president from office.
What if a jury of 12 in a deep red state had been able to remove Obama from office by finding him guilty of a crime?
Remember, when you think about what we want for Trump, it’s important to remember that making it too easy to remove a president can be applied to future Democratic presidents.
Consider, too, that the criminal trial of a sitting president would be a media circus. Good luck trying to find an impartial jury. (Yes, I know the Senate is not impartial. But the Senators are elected representatives, which means the Senate, as a body, represents all voters.)
When I tweeted these ideas on Twitter, I got some pushback. For example, Kris B. thinks that a policy under which a sitting president can’t be put on trial makes him “above the law”:
On the contrary, it means we follow the law, which is that a president is removed by the Senate (after impeachment in the House). Rule of Law means we follow the law, even when we don’t like it.
This person says that other people can be removed with a guilty verdict. Why not a president?
Same answer: Because the Constitution gives a different procedure for the president, as it should. Refer back to earlier example of 12 jurors in a deep red state having had the power to remove Obama.
People then asked what the remedy is if members of Congress refuses to do their jobs. The remedy given in the Constitution is that the people vote them out in the next election.
I understand this is also frustrating because it means there is no quick solution. But that’s the problem with democratic processes. There generally are not quick solutions. If you don’t believe that democratic institutions and norms are slow moving, run for local city council and try to get something done. Sidestepping the Constitution would allow us to act more quickly. But that would be a terrible ideas.
Personally I suspect that Nancy Pelosi and the House Democrats have a plan, and they’re waiting to get their hands on the evidence they need.
