As evidence of law breaking by Donald Trump continues to emerge, commentators are speculating about whether a sitting president can be indicted. The Department of Justice has twice opined in the negative — during both the Nixon and Clinton administrations. But nothing in the Constitution would prevent Trump from being criminally indicted while he occupies the Oval Office.
Trump is apparently implicated in at least three federal criminal investigations. Special Counsel Robert Mueller is examining violations of campaign finance laws in connection with Trump Tower Moscow. Prosecutors in the Southern District of New York have documented campaign finance violations stemming from hush money paid to Trump’s alleged paramours in order to influence the presidential election. And the New York US attorney’s office is analyzing whether Trump’s inaugural committee received illegal payments for presidential access and policy influence.
State lawsuits and investigations also spell legal peril for Trump. Attorneys general in Maryland and Washington, DC, have issued subpoenas in a lawsuit alleging the Trump Organization’s business dealings violated the Emoluments Clause. Located in Article I, Section 9 of the Constitution, the clause prohibits US officials from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress.
And New York officials are reviewing possible income tax fraud by Trump and the Trump Foundation.
Moreover, Trump’s former lawyer Michael Cohen; longtime Trump ally David Pecker, head of American Media Inc.; and Allen Weisselberg, chief financial officer of the Trump Organization, are providing information to Mueller that could incriminate the president.
A Sitting President Can Be Indicted
The Constitution provides for impeachment of high government officials for treason, bribery, or other high crimes and misdemeanors.
“Nothing,” however, in the “text, structure, or history” of the Constitution, or Supreme Court precedent, prevents the indictment of a sitting president, according to Harvard law professor Laurence Tribe.
Yet Trump lawyer Rudy Giuliani told “Fox & Friends” that Mueller’s office had informed former Trump attorney Jay Sekulow that the special counsel did not have the power to indict a sitting president.
If Mueller did say that, he would likely be relying on two memos from the Department of Justice’s Office of Legal Counsel. During both the Richard Nixon and Bill Clinton administrations, the Office of Legal Counsel took the position that sitting presidents are immune from criminal prosecution for policy reasons, if not constitutional ones.
But in 1974, Watergate Special Prosecutor Leon Jaworski’s office concluded that “the Framers did not specifically provide for Presidential immunity from indictment.”
And a 1998 memo from independent counsel Kenneth Starr’s investigation of Clinton says a president can be indicted for criminal activity: “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.”
Some legal scholars argue that the Constitution provides the remedy of impeachment for a law-breaking president, who can only be charged with a crime after he leaves office.
The Jaworski memo, however, notes that while impeachment is a “political” process that does not require the commission of a felony, the criminal justice process exists for a different purpose: “to prosecute crimes with reference to an apolitical code applied objectively to all citizens.”
Furthermore, the Jaworski opinion points out, “the disruption caused by indictment and trial of the President would be no greater, and possibly less, than that caused by the impeachment process,” which “promises to be a terribly drawn out, divisive, and possibly inconclusive process … on a variety of less distinct charges.”
Although the Supreme Court has not ruled on whether a sitting president can be criminally indicted, it held in the 1997 case of Clinton v. Jones that a president could be the subject of a civil lawsuit while in office. The high court stated that although a federal court’s judicial process “may significantly burden the time and attention of the Chief Executive,” that “is not sufficient to establish a violation of the Constitution.” If such a “burden” is acceptable when it comes to civil matters, it seems clear that it should be acceptable when there are serious allegations of lawbreaking against a sitting president.
Office of Legal Counsel Won’t Prevent Indictment of Trump
The Office of Legal Counsel memos stating that a sitting president is immune from criminal prosecution do not necessarily protect Trump, according to some legal experts.
“The justifications underlying the general practice of treating [Office of Legal Counsel] opinions as binding on executive branch officials do not necessarily apply to the Office of Special Counsel, which is supposed to be insulated from the influence of political appointees when assessing the president’s exposure to criminal liability,” Harvard law professor Andrew Crespo wrote at Lawfare blog. The Office of Legal Counsel memos, Crespo noted, were written by presidential appointees beholden to the president.
Neal Katyal, solicitor general in the Obama administration, says the Office of Legal Counsel opinions may not prevent Trump from being indicted because they “don’t necessarily apply to a circumstance in which the actual crime may have involved him obtaining the presidency in the first place.”
“Nothing in the Constitution prevents [Trump’s] indictment for directing a criminal conspiracy to steal the presidency,” Tribe wrote in a December 10 tweet. “Certainly not a DOJ [Department of Justice] policy.”
Indeed, the DOJ’s Office of Legal Counsel has issued other opinions that twisted the law to support presidential policy. As I testified before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties in 2008, the Office of Legal Counsel during the George W. Bush administration purported to justify torture in opinions that flew in the face of the Convention Against Torture and the US Torture Statute.
Statute of Limitations Could Prevent Later Indictment
There is some urgency to Trump’s potential prosecution. The statute of limitations for campaign finance violations is five years, which means charges for which Trump may be implicated would expire in 2021. If he is not reelected, Trump could be prosecuted on January 20, 2021. But if he is elected to a second term, Trump would either need to waive the statute of limitations (pursuant to a plea bargain) or Congress would have to extend it. Although the House of Representatives controlled by the Democratic Party that takes office in January may vote for an extension, it is unlikely the GOP-led Senate would follow suit. In any event, Trump would veto such legislation.
Delaying a criminal trial would “increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party,” as the Supreme Court cautioned in the Clinton v. Jones civil case.
If Trump Isn’t Indicted, He Could Be Named Unindicted Co-Conspirator
“If Mueller decides he shouldn’t indict @POTUS in DC,” Tribe tweeted, “the US Attorney for SDNY might give thought to doing so in NY. He has the evidence now.”
But if neither Mueller nor federal prosecutors in New York ask a grand jury to indict Trump, they could request that the president be named an unindicted co-conspirator in an indictment of other individuals.
There is precedent for this course of action. In 1974, a grand jury indicted seven associates of Nixon for the cover-up of the Watergate burglary. At Jaworski’s request, the grand jury named Nixon as an unindicted co-conspirator.
Richard Painter, chief ethics attorney in the George W. Bush administration, said on MSNBC that Trump’s only chance to protect himself and his family from legal jeopardy is to strike a plea bargain with prosecutors. “Donald Trump is in serious trouble,” Painter stated. “His lawyers ought to be telling him to negotiate a plea deal. Get him out of the White House. Have him resign, plead guilty to lower charges and let’s move on as a country.”
If Mueller does pursue indictment, Trump would likely prevail upon his new attorney general to fire Mueller or constrain his actions. But under the regulations, an attorney general must give “great weight to the views of the Special Counsel” and could only deny Mueller’s request if “the action is so inappropriate or unwarranted under established [DOJ] practices that it should not be pursued.” If that occurs, the attorney general must report and explain his or her actions to the Senate and House judiciary committees. The Democratic Party–controlled House Judiciary Committee could then choose to make that report public.
The Constitution does not prohibit indictment of a sitting president. Will Mueller recognize this reality in his actions going forward?