Can Trump be Indicted?

The question has been heavily debated since the 1970s with the emergence of President Nixon’s Watergate scandal; can a sitting president be criminally prosecuted? While the Constitution does lay out instructions for the impeachment of a president, it does not state whether or not a president can be indicted. The Supreme Court has also never given a clear answer as to what the legal proceeding for a sitting president should be.

To be clear, impeachment is the process where a legislative body, the Senate and House, formally charges a high ranking government official with a crime. From there, there is a legislative vote to determine whether the official should be removed from office. Indictment is a formal accusation against a person who has committed a crime which is determined by a grand jury or filing a charge document directly with the court. From there, there is usually a preliminary hearing where a judge decides if the suspect should be allowed bail or arrested, and then a trial with a jury.

This debate is once again on the rise in the wake of Donald Trump’s presidency. Allegations have been made against President Trump by former F.B.I. director, James B. Comey, that President Trump asked Comey to stop investigating the Trump administration’s former security adviser, Michael T. Flynn. If these allegations are true, President Trump may be found to have obstructed justice by trying to interfere with an ongoing investigation. Former F.B.I. director, Robert S. Mueller III, has been appointed special counsel into the investigation of the Trump campaigns ties with Russia.

Akhil Reed Amar, a law professor at Yale, believes that the founding fathers “implicitly immunized a sitting president from ordinary criminal prosecution” which can be seen through “structural inference”.

In Article I, Section 3 of the Constitution it states:

“Judgement 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, judgement and punishment, according to the law.”

In other words, a sitting president or other government official may only be impeached and then removed from office for their crimes. However, after they are removed from office, they may then be prosecuted criminally.

Some believe that a government official should be tried criminally despite their position and that the impeachment and then removal phase of the law should be skipped in order to proceed straight to criminal indictment and then prosecution. Eric M. Freedman, a law professor at Hofstra University agrees with this point of view. He believes that immunity from criminal prosecution for sitting presidents is “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.” Officials who are in positions where they could have been impeached and then removed following accusations of criminal activity have instead been indicted and prosecuted while in office. If these officials can be prosecuted why not the president?

Professor Amar believes that the presidential office is different because “if you’re going to undo a national election, the body that does that should have a national mandate.” If citizens want to get a president out of office, the people who should be doing that are those who have been elected by the people of the nation as representatives in the House and Senate.

Solicitor General Robert H. Bork of the Justice Department added that “structural features of the Constitution” barred prosecutions of sitting presidents. Bork cited the fact that presidents have the power to control federal prosecutions and pardon federal offenses so it would make no sense to prosecute a president until they were removed from office and no longer had those powers. The Justice Department’s Office of Legal Counsel concluded that “indicting a sitting president would violate the Constitution by undermining his ability to do his job.”

The Justice Department’s regulations require special counsel Mr. Mueller to follow the department’s “rules, regulation, procedures, practices, and policies.” This seems to indicate that due to the Justice Department’s conclusion that a sitting president cannot be indicted, Mueller will not have the ability to indict President Trump if criminal evidence is uncovered. Andrew Manuel Crespo, a law professor at Harvard University, believes that Mueller only has to follow the department’s regulations in the sense of “administrative protocols and procedures” rather than “legal analysis, arguments or judgements” meaning that Mueller could indict President Trump despite the Justice Department’s conclusion on the matter.

Professor Crespo’s response reveals the huge amount of debate still surrounding the question of whether a sitting president can be indicted. As the investigation surrounding the Trump campaign and its ties to Russia as well as President Trump’s possible obstruction of justice continues, this may be a question that the Supreme Court will need to crack down on and decide once and for all.

Featured Image via Flickr/Elvert Barnes