12 Reasons Why A Sitting President CAN Be Indicted
compiled by Steve Rapport / Indivisible SF
If the president can’t be indicted while in office, then as president, he’s above the law — and that is simply unacceptable
- There is no evidence in either the text of the Constitution or in the Constitutional Convention of an intention to create immunity from indictment for a sitting President ¹
- Were an immunity from prosecution to be granted to a President, it would be a radical departure from the foundational principle that nobody is above the law ²
- If the trial of a President is too destabilizing for the country, the 25th Amendment, which would temporarily elevate the Vice President, provides a clear Constitutional remedy ³
- The Constitution provides a specific, limited immunity for members of Congress in the ‘Speech & Debate’ clause, but provides no such specific immunity for the President ⁴
- Although there is no distinction in the constitution between the treatment of the offices of the President on the one hand, and the Vice President and other high officers on the other, it is accepted (even in the OLC memos) that a Vice President can indeed be indicted ⁵
- The statute of limitations militates against a sitting President “running out the clock,” certainly for crimes committed before or during a first term. The concept of “equitable tolling” for such crimes, cited in the OLC memos, “appears to be something more imagined than real,” according to Jed Shugerman ⁶
- Mueller’s regulatory obligation is to “comply with the rules, regulations, procedures, practices and policies of the [Justice] Department,” but as Andrew Crespo explains, a natural reading suggests that “the regulatory text seems to focus more on administrative protocols and procedures than on legal analyses, arguments, or judgments” ⁷
- The Special Counsel may, in appropriate circumstances, request from the Attorney General a departure from the DoJ regulations (and should the AG refuse such a request, the Special Counsel must notify both the majority and minority parties in Congress) ⁸
- Trump’s Justice Department has already overruled its own positions on many occasions, undermining any arguments that to do so would be unprecedented ⁹
- If indictment is off the table, impeachment must be on it.
If impeachment is off the table because of a nefarious Congress, indictment must be on it ¹⁰ - It is inconceivable that a President whose criminal activities contributed to his attaining that office should then be able to use the office itself as a shield against indictment for those same criminal activities. As Neal Katyal explains, the OLC regulations just provide generic guidance, and “don’t necessarily apply to a circumstance in which the actual crime may have involved him obtaining the presidency in the first place” ¹¹
- In Clinton v Jones the Supreme Court decided that a civil lawsuit was insufficient of a burden on a President to justify violating the Constitution. If such a burden is deemed appropriate in a civil suit, the administration of justice demands that it should also be appropriate for far more profound proceedings for serious criminal activities ¹²
- Jonathan Turley: Can Donald Trump Be Indicted While Serving As President?
https://www.washingtonpost.com/news/posteverything/wp/2018/02/27/can-donald-trump-be-indicted-while-serving-as-president/?utm_term=.975d8aac0331
Ronald Rotunda: The president can be indicted — just not by Mueller
https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.36d7b693eeb4
Philip Allen Lacovara: Yes, Trump could be indicted. The ‘Nixon tapes’ case proves it
https://www.washingtonpost.com/opinions/yes-a-president-can-be-indicted-the-nixon-tapes-case-proves-it/2017/12/07/26339e32-db4d-11e7-a841-2066faf731ef_story.html
Laurence Tribe: Constitution Rules Out Immunity For Sitting Presidents
https://www.bostonglobe.com/opinion/2018/12/10/constitution-rules-out-sitting-president-immunity-from-criminal-prosecution/6Byq7Qw6TeJlPVUhlgABPM/story.html?event=event25
Adam Liptak: A Constitutional Puzzle: Can the President Be Indicted?
“Professor Eric M. Freedman demonstrated that the issue had divided the founding generation and argued that granting sitting presidents immunity from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations”
https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html?module=inline
Senator Richard Blumenthal: “Most Americans agree, presidents can be indictable while in office. No constitutional reason precludes it. Justice requires it — & statute of limitations may bar charges if indictment is delayed. One option: charge him & postpone trial”
https://twitter.com/senblumenthal/status/1079429125599834113?s=21
Eric M. Freedman: “I reject the idea that the Constitution gives the President blanket immunity from criminal prosecution as inconsistent with the history, structure, and underlying philosophy of our government, at odds with precedent, and unjustified by practical considerations”
https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2059&context=hlr - Laurence Tribe: Constitution Rules Out Immunity For Sitting Presidents
https://www.bostonglobe.com/opinion/2018/12/10/constitution-rules-out-sitting-president-immunity-from-criminal-prosecution/6Byq7Qw6TeJlPVUhlgABPM/story.html?event=event25
Laurence Tribe: Yes, the Constitution Allows Indictment of the President
https://www.lawfareblog.com/yes-constitution-allows-indictment-president
Ronald Rotunda: The president can be indicted — just not by Mueller
https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.36d7b693eeb4
Ronald Rotunda: “It is proper, constitutional, & 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” — Starr Office Memo
https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html
Neal Katyal: Can’t Indict a President? That Could Hurt Trump
https://www.nytimes.com/2018/05/21/opinion/neal-katyal-indict-trump.html - Ronald Rotunda: The president can be indicted — just not by Mueller
https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.36d7b693eeb4
Jonathan Turley: Can Donald Trump Be Indicted While Serving As President?
https://www.washingtonpost.com/news/posteverything/wp/2018/02/27/can-donald-trump-be-indicted-while-serving-as-president/?utm_term=.975d8aac0331
Laurence Tribe: Yes, the Constitution Allows Indictment of the President
https://www.lawfareblog.com/yes-constitution-allows-indictment-president - Philip Allen Lacovara: Yes, Trump could be indicted. The ‘Nixon tapes’ case proves it
https://www.washingtonpost.com/opinions/yes-a-president-can-be-indicted-the-nixon-tapes-case-proves-it/2017/12/07/26339e32-db4d-11e7-a841-2066faf731ef_story.html
Ronald Rotunda: The president can be indicted — just not by Mueller
https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.36d7b693eeb4
Ronald Rotunda: “If the framers of our Constitution wanted to create a special immunity for the president, they could have written the relevant clause”
https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html
Laurence Tribe: Yes, the Constitution Allows Indictment of the President
https://www.lawfareblog.com/yes-constitution-allows-indictment-president - Philip Allen Lacovara: Yes, Trump could be indicted. The ‘Nixon tapes’ case proves it
https://www.washingtonpost.com/opinions/yes-a-president-can-be-indicted-the-nixon-tapes-case-proves-it/2017/12/07/26339e32-db4d-11e7-a841-2066faf731ef_story.html - Ronald Rotunda: The president can be indicted — just not by Mueller
https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.36d7b693eeb4
Jed Shugerman: The Single Fatal Flaw in the Legal Argument Against Indicting a Sitting President. Should a president be above the law because of the statute of limitations?
https://slate.com/news-and-politics/2018/12/trump-indict-sitting-president-statute-of-limitations.html
Laurence Tribe: Yes, the Constitution Allows Indictment of the President
https://www.lawfareblog.com/yes-constitution-allows-indictment-president
Neal Katyal: Twitter thread & CNN Anderson Cooper interview
https://twitter.com/neal_katyal/status/1072959739364020224?s=21
https://twitter.com/neal_katyal/status/1073060337639940096?s=21
https://twitter.com/neal_katyal/status/1073061201549164544?s=21 - Andrew Crespo: The Road to United States v. Trump is Paved with Prosecutorial Discretion
“Of this much I am confident: should he decide to take us down the road to United States v. Trump, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted”
https://takecareblog.com/blog/the-road-to-united-states-v-trump-is-paved-with-prosecutorial-discretion - Neal Katyal: Can’t Indict a President? That Could Hurt Trump
https://www.nytimes.com/2018/05/21/opinion/neal-katyal-indict-trump.html
Rep. Joaquín Castro (D-Tex.) told CNN on May 17 that Mueller “could actually get an exemption to not indicting the president”
http://transcripts.cnn.com/TRANSCRIPTS/1805/17/sitroom.01.html - Neal Katyal: Can’t Indict a President? That Could Hurt Trump
https://www.nytimes.com/2018/05/21/opinion/neal-katyal-indict-trump.html - Neal Katyal: Can’t Indict a President? That Could Hurt Trump
https://www.nytimes.com/2018/05/21/opinion/neal-katyal-indict-trump.html
Glenn Kirschner: ”If party affiliation has become the sole motivating factor for decisions regarding impeachment proceedings, then the very premise of the OLC memo fails… if Republican representatives refuse to impeach and/or Republican senators refuse to remove/convict a criminal president due to unshakable party loyalty, then the OLC memo is de facto ensuring that the president is above the law”
https://www.nbcnews.com/think/opinion/trump-indictment-possible-mueller-doj-should-re-evaluate-office-legal-ncna949116 - Laurence Tribe: Yes, the Constitution Allows Indictment of the President
https://www.lawfareblog.com/yes-constitution-allows-indictment-president
Neal Katyal: Twitter thread & CNN Anderson Cooper interview
https://twitter.com/neal_katyal/status/1072959739364020224?s=21
https://twitter.com/neal_katyal/status/1073060337639940096?s=21
https://twitter.com/neal_katyal/status/1073061201549164544?s=21
Glenn Kirschner: “If a president can act unlawfully to influence an election, he does not deserve the protections of his ill-gotten office. This incongruity encourages lawlessness in the quest for the presidency and then rewards that lawlessness by inoculating the criminal president against prosecution. Such a construct is dangerous”
https://www.nbcnews.com/think/opinion/trump-indictment-possible-mueller-doj-should-re-evaluate-office-legal-ncna949116 - Marjorie Cohn: Trump Can and Should Be Indicted
https://truthout.org/articles/trump-can-and-should-be-indicted/
Ronald Rotunda: “If public policy and the Constitution allow a private litigant to sue a sitting president for acts that are not part of the president’s official duties (and are outside the outer perimeter of those duties), and that is what Clinton v. Jones squarely held, then one would think that an indictment is constitutional because the public interest in criminal cases is greater”
https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html
Kenneth Starr: “As important as civil litigation is to the individual litigant and to the rule of law, the vindication of the criminal laws is all the more important”
https://www.newsweek.com/donald-trump-can-be-indicted-while-president-says-bill-clinton-special-1266906
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He 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.
Ronald Rotunda was a professor at Chapman University’s Fowler School of Law. As an advisor to the Independent Counsel in 1998, Rotunda was asked for an opinion on “whether a sitting President is subject to indictment.” His 56 page response, released from the National Archives in 2017 after a New York Times FOIA request, remains the most detailed analysis of the indictment of a sitting President.
Philip Allen Lacovara, a former U.S. deputy solicitor general in the Justice Department, served as counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski
Laurence Tribe, professor of constitutional law at Harvard Law School, is coauthor, most recently, of “To End a Presidency: The Power of Impeachment” with Joshua Matz
Adam Liptak is a journalist and lawyer who covers the Supreme Court for the New York Times. He has written a column, Sidebar, on developments in the law, since 2007.
Richard Blumenthal, who is currently Connecticut’s senior senator, was formerly the state’s Attorney General and, previous to that, a United States’ Attorney for the District of Connecticut.
Eric M. Freedman is the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at Hofstra University.
Neal Katyal was responsible for the drafting of the Special Counsel regulations while at the Justice Department. He was an acting solicitor general in the Obama administration, and is currently a law professor at Georgetown and a partner at Hogan Lovells.
Jed Shugerman is a Fordham Law professor and the author of The People’s Courts and shugerblog.com. He is a co-author on an amicus brief in CREW v. Trump.
Andrew Crespo is an Assistant Professor of Law at Harvard Law School, where he teaches criminal law and criminal procedure.
Joaquín Castro currently represents Texas’s 20th Congressional District in the U.S. House of Representatives. He is a Harvard Law School graduate who started his own law firm with his twin brother Julián.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace.
Glenn Kirschner is a former federal prosecutor. He recently retired after serving as a U.S. Army JAG for more than six years and an Assistant U.S. Attorney for the District of Columbia for 24 years.
Kenneth Starr, a former United States’ Court of Appeals judge and U.S. solicitor general, was the Independent Counsel for the Whitewater investigation into President Bill Clinton, which eventually led to his unsuccessful impeachment.
