It’s Time to Ask Again: Can a Sitting President Be Indicted?
The Trump presidency has been a boon for at least three groups of people: late-night comics who see him as a boundless source of hilarity; conspiracy theorists panicked over the “deep state’s” machinations to subvert his electoral victory; and constitutional lawyers, scholars and commentators who feel compelled to survey the legal wreckage caused by the president’s policies and behavior. Count me among the last.
In my circles, the issue du jour is whether a sitting president can be indicted. President Trump is on the hot seat for possible criminal prosecution for obstruction of justice arising from his firing on May 9 of FBI Director James Comey and his more recent threats to discharge Justice Department special counsel Robert Mueller.
Who else but Trump—the real estate mogul and former TV game show host turned most powerful person in the world—could have resurrected the indictment question last raised during the presidency of Bill Clinton? Trump may have failed to deliver on his campaign pledge to “Make America Great Again,” but he certainly has prompted the country to debate again.
So let’s pick up the discussion where we left it during Clinton’s impeachment crisis:
Clinton, it may be recalled, was the second American president to be impeached—meaning, to be tried before the Senate on articles of impeachment passed by the House of Representatives and not, as is sometimes assumed, removed from office. The other was Andrew Johnson. A third president, Richard Nixon, resigned before the full House voted on impeachment articles that had been passed by that chamber’s Judiciary Committee. Both Clinton and Johnson were acquitted in their Senate impeachment trials, and neither were removed from office.
In Clinton’s case, the articles of impeachment that the House referred to the Senate raised two basic charges: that Clinton had perjured himself in testimony before a federal grand jury regarding his relationships with Paula Jones and Monica Lewinsky, and that he had obstructed justice in an effort to “delay, impede, cover up and conceal the existence of evidence related to the Jones case.”
Because both perjury and obstruction of justice are crimes, the impeachment articles lodged against Clinton sparked intense debate about whether he could be prosecuted, even if the Senate acquitted him and he remained on the job. Scholars at the time were divided. While the predominant opinion was that a president had to be impeached and removed before he could be indicted, it was conceded by most experts that the issue was unresolved. It still is.
The reason for the lack of resolution is that the Constitution itself is both sparse and vague on the question. The only place it refers to the topic comes at Article I, Section 3, Clause 7, which provides: “Judgment in 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.”
Scholars who believe the clause immunizes sitting presidents, such as Yale Law School professor Akhil Amar, contend that such immunity is implicit in the text of Clause 7, and is the interpretation most consistent with the overall structure of the Constitution and the uniqueness of the office of the presidency.
In Amar’s view, prosecuting a president before he leaves office would both distract the chief executive from performing his manifold duties and cripple the federal government. On two occasions, in 1973 and 2000, the Justice Department’s Office of Legal Counsel (OLC) adopted a similar position in a pair of lengthy memos. Both Amar, the OLC and many others argue that impeachment alone is the proper remedy for dealing with a wayward president.
The other side in the debate, while argued by a minority, is no less formidable. The dissenters maintain that neither the text of the Constitution nor the intent of the framers bar prosecution. Both Leon Jaworski, the second Watergate special prosecutor, and Kenneth Starr, who doggedly pursued Clinton, believed that sitting presidents could be indicted, although neither followed through on those beliefs.
After years of taking up space in the National Archives, Starr’s 56-page analysis of the indictment question was recently obtained by The New York Times via the Freedom of Information Act. The analysis, prepared at Starr’s request by Chapman University Law School professor Ronald Rotunda, concludes: “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties. In this country, no one, even President Clinton, is above the law.”
In an op-ed published July 27 in The Washington Post, Rotunda wrote that the analysis still stands today. While no Supreme Court cases directly address the indictment issue, Rotunda maintains that “the history and language of the Constitution and Supreme Court precedents suggest that the president does not enjoy general immunity from prosecution. … If the framers [had] wanted to protect the president from prosecution while in office and to make impeachment the sole mechanism for proceeding against a president, they could and would have said so.”
Although Rotunda believes the obstruction allegations leveled against Trump to date are built on innuendo, others insist the allegations have merit and are becoming more credible with each passing news cycle.
As I have explained in this column before, the relevant federal laws on obstruction are found in Title 18, sections 1501 through 1521, of the United States Code. In all, the code sets out 21 separate obstruction crimes.
In previous columns, I have focused on Section 1505, which makes it a felony to “corruptly” influence, obstruct or impede a pending proceeding before a federal agency or Congress. The key to assessing a case against Trump under the terms of the section turns on whether the firing of Comey was done with the “corrupt” intent to influence, impede or delay the FBI’s investigation into alleged Russian meddling with the presidential election, or to impede the parallel investigations underway in both the House and Senate.
Since axing Comey, Trump has done little to dispel suspicions of corrupt intent. If anything, he’s seemingly done his utmost to build a textbook case against himself. Among other missteps, he’s threatened to fire Mueller should the special counsel dig too deeply into Trump’s financial ties to Russia, and the president has tweeted that he’s considering preemptive pardons (by implication, conceding guilt) for his family members and himself should the need arise. While the Constitution accords the president broad pardon authority, most observers doubt he can pardon himself.
Earlier this week, The Washington Post reported that on July 8 Trump personally dictated his son Donald Jr.’s initial public statement about the latter’s meeting in June 2016 with a highly placed Russian lawyer. The statement asserted that the primary purpose of the meeting was to discuss U.S. policy on the adoption of Russian children rather than, as later confirmed by Jr.’s emails, to obtain damaging information about Hillary Clinton—a subject directly related to Mueller’s investigation.
Trump has also publicly excoriated Attorney General Jeff Sessions for recusing himself from participating in the Russia probe, which could be considered a form of witness intimidation in violation of Section 1512(b), inasmuch as Sessions may be summoned again to give congressional testimony about his campaign contacts with Russian officials.
Although Sessions clearly acted in compliance with Justice Department conflict-of-interest protocols in stepping away from the Russia investigation, Trump thinks that recusal was unwarranted. He believes that Mueller would never have been appointed if Sessions hadn’t been “weak” (the most egregious of sins in Trumpland) and hadn’t disqualified himself from exercising supervisory oversight of the probe.
But the president isn’t just unhappy with Sessions and “Russiagate,” as the election-meddling scandal has become known. He has also weighed the possibility of firing Sessions or pressuring him to resign. With Sessions out of the way, the master plan would be to name a new attorney general during the Senate’s August recess without the need for a fresh and time-consuming round of confirmation hearings. The new AG would then be instructed to dispatch Mueller back to private practice. Game, set and match. Russiagate, or at least its criminal dimension, would be history and forever remembered as #FakeNews.
As with most things Trump, however, the master plan was ill-conceived from the outset, and according to the latest disclosures from White House spokesperson Sarah Huckabee Sanders, removing Sessions is no longer on the table. The reason it’s been shelved is that the GOP has suddenly found a spine when it comes to Sessions. Many party leaders have made it known that they won’t tolerate another Saturday Night Massacre—Nixon’s infamous and ill-fated decision to fire the first Watergate prosecutor, Archibald Cox.
“If Jeff Sessions is fired, there will be holy hell to pay,” Sen. Lindsey Graham, R-S.C., told CNN in late July. “Any effort to go after Mueller could be the beginning of the end of the Trump presidency,” he added in a comment to Politico.
What kind of hell might that be? Well, as noted above, the alternative to indictment is impeachment. And even the pardon card would not save Trump from that fate, as Article II, Section 2, Clause 1 of the Constitution expressly excludes “cases of impeachment” from the pardon power.
The obstruction inquiry would never have gotten off the ground if Trump had held his tongue and kept away from his Twitter account. Russiagate probably would have ended with charges brought against Michael Flynn and perhaps Paul Manafort for relatively minor violations of the laws governing the disclosure of contacts and financial ties with foreign governments, but the president would never have found himself in the crosshairs of a special counsel.
But Trump, like Clinton and Nixon, has little, if any, impulse control. So here we are.
How this all ends is anybody’s guess. In the meantime, the late-night comics will continue to chortle and entertain. Conspiracy theorists will continue to fidget with their tinfoil hats. And constitutional lawyers, scholars and commentators will be left parsing the vintage legal issues that Trump has singularly revived.