CAN A PRESIDENT BE INDICTED WHILE IN OFFICE?
Ivan Hoffman, B.A., J.D.
The answer may depend on the meaning of two words: “convicted” and
There is no statutory or case law which definitively answers this question and
the Constitution is equally uncertain.
I would urge the reader to review the article called
“Impeachment” which discusses related issues but those issues do not shed
sufficient light on this pending question to answer it.
Remember: impeachment does not require conviction of
what would otherwise be criminal activity and that the penalties for any
conviction of impeachment are limited.
So the issue about indictment for crimes remains a
Article I, Section 3, Clause 7 states:
7: 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. [emphasis added]
The provisions could be read to require that before a “Party” could be indicted,
the “Party” would first have to be “convicted.”
Thus the issue, according to this theory, is that any
criminal prosecution would have to wait until after an impeachment and
However, the use of the word “nevertheless” clouds the issue since it can also
imply not that the impeachment must
first occur but that indictment can proceed separate from, but in addition to,
In other words, this interpretation is that irrespective of the
outcome of the impeachment proceedings, whether by acquittal or conviction,
there still can be criminal liability. This argument asserts that the reason
that the word “nevertheless” is used in that phrase is to make it clear that any
such criminal prosecution would not be barred by the “double jeopardy”
provisions of the Fifth Amendment.
This is further supported by the argument that there
would be no double jeopardy anyway since any judgment of impeachment would be
limited to “removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States:”
Thus there would be no criminal liability attached to a
conviction of impeachment which would bar additional criminal liability.
It is worth noting that the impeachment provisions of Article II, Section 4,
cover not only the President and the Vice President but “all civil Officers of
the United States.”
The latter group have been criminally prosecuted
irrespective of any requirement of a prior impeachment proceeding.
In other words, although there have been few impeachment
proceedings against any of these parties, there have been criminal prosecutions
of many the same.
Furthermore, Article I, Section 6, Clause 1 of the Constitution provides for
immunity of legislators from certain enumerated crimes. It states:
[Senators and Representatives]
shall in all Cases, except Treason, Felony and Breach of the Peace,
be privileged from Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from the same; and for any
Speech or Debate in either House, they shall not be questioned in any other
The legal argument goes that this is the only provision in the Constitution that speaks about immunity from prosecution and thereby implies that if the framers intended other forms of immunity or immunity to other officials of the government including the President, they would have included such provisions.
The Department of Justice
The Department of Justice (“DOJ”) has taken the position, initially in 1973 and
again in 2000, that a sitting President cannot be indicted and tried while he or
she is in office.
The general approach that underpins the DOJ positions is two-fold:
the first is that the President is the chief executive
of the nation including the chief law enforcement officer and thus it would be
like the President is trying himself.
This is sometimes referred to as the “unitary executive”
argument finds support from Article II, Section 1 of the Constitution which
1: The executive Power shall be vested in a President of the United States of America.
The second basis for the DOJ position is that, on balance, it would be a
significant distraction for the President to be on trial for crimes.
The 2000 memorandum quoted the 1973 memo and stated:
In this regard, the memorandum explained that ‘ ‘the President is the
symbolic head of the Nation. To wound him by a criminal proceeding is to
hamstring the operation of the whole governmental apparatus, both in foreign and
The 1973 memorandum affirms the position argued above that the impeachment
provisions do not require a prior conviction for impeachment before criminal
However, this does not answer the question about whether there
can be a criminal prosecution of a President while he or she is in office.
Furthermore, the 2000 memorandum concluded that arguments based on the
separation of powers under the Constitution likewise did not produce any
Instead the memorandum said:
As a consequence, “ [t]he proper approach is to find the proper balance
between the normal functions of the courts and the special responsibilities and
functions of the Presidency.”
So we are now taken back to the “balancing” act and as a result, to the
introduction of subjectivity into the decision making process.
That balance can swing in many directions and depends
upon the various points of view of the courts and ultimately the Supreme Court.
Read “United States vs. Nixon.”
As part of this balancing, the 2000 memorandum reviewed the earlier 1973
position that perhaps the criminal prosecution of a sitting President was “too
political” to be decided by the courts but the memorandum rejected this
argument. It stated:
The only kind of offenses that could lead to criminal proceedings
against the President would be statutory offenses, and “ their very inclusion in
the Penal Code is an indication of a congressional determination that they can
be adjudicated by a judge and
The 2000 memorandum also went on to rule out any objection to an indictment
based upon claims that a trial of a sitting President would be “unfair” to him
Thus, the basis for 2000 memo is that it would interfere with the President’s
time and ability to conduct his work.
It is unclear, using this reasoning, how participation
in a civil trial (which is allowed…see the case of Clinton
vs. Jones, 520 US 681 (1997)) or indeed participation in
the impeachment trial itself, are any different than from a criminal trial.
The Jones case
expressly rejected the “it’s too burdensome” argument at least in regard to a
Moreover, these memoranda fail to consider the 25th
amendment which provides for the Vice President to take over during any period
where the President is unable to perform his or her functions, even if
The additional arguments against these DOJ positions are several fold:
1. They are not legal precedent, decided by a court. They are merely internal policies and not binding on the courts.
2. If indictment of a President must wait until after he or she leaves office:
a. Then, like the Nixon matter, once he or she does leave office, the new President, the prior Vice-President, chosen by and presumably with loyalties to the departing President, could issue a pardon and thus the former President could escape criminal liability completely (irrespective of the outcome of the impeachment proceeding); or
Then it may be that respective
statutes of limitations may run out by that time.
But even if a sitting President cannot be tried because of the “distraction
factor,” could a President be indicted while in office even if the actual trial
took place after he or she leaves office?
Presumably, this would toll the statute of limitations
but may run afoul of the requirement in the Sixth Amendment of the right to a
The DOJ conclusion seems unlikely to be the intent of the framers of the
They were concerned with the total immunity of the King of
England to any laws and did not want to create a President with kingly immunity.
Indeed, if part of the criminal activity involves claims
of obstruction of justice, then the failure to make the President liable
involves two insults to the rule of law since not only would there be immunity
but there would be immunity to the very kinds of crimes that go to the heart of
our system of laws.
Read “Obstruction of
The Special Counsel Memoranda
Two memoranda, one issued for the independent counsel investigating the Clinton
matter (Kenneth Starr) and the other for the special prosecutor (Leon Jaworski)
about the Nixon matter, each reached the opposition conclusion from the DOJ
Memoranda and each concluded that a sitting President can be indicted.
The Jaworski memorandum discussed the separation of
powers argument (see above) and concludes that the political branch of the
government, the legislative, is separate from the judicial branch and that the
judicial branch has its own duties to fulfill independent of the duties of any
other branch of government. Thus
this memorandum concluded, a criminal prosecution of a sitting President would
not violate the separation of powers requirements of the Constitution.
The Starr memorandum further concludes that even though a sitting President can
be indicted, perhaps imprisonment (if he be convicted and if imprisonment is the
proper punishment) can be deferred until after he leaves office.
However, the Starr memorandum expressly does not discuss whether a sitting
President can be indicted for crimes that may have been committed
pursuant to his or her official duties.
For example, if a President can fire the director of the
FBI as is the President’s constitutional right, can a President be indicted for
What if the reason for the firing was not in the
exercise of the President’s constitutional rights but for other reasons?
On the other hand, obstruction of justice, violating the
election laws or other non-official conduct including conduct before the President took
office, may make the President indictable.
The Starr memorandum also rebuts the argument that impeachment must precede
indictment (see above) since it would give the legislative branch of government
total power of the legitimate functions of the judicial branch, which is to
determine if crimes have occurred and whether and when to prosecute for the
As such, the interpretation that impeachment must precede indictment
would violate the separation of powers structure of the Constitution since that
division does not provide any judicial functions to the legislature.
That same memorandum, citing to Nixon vs. Sirica,
indicates that the Constitution nowhere includes any provisions regarding
Presidential immunity from criminal prosecution.
It also states
that there is nothing in the Constitution that indicates any different treatment
for a President than from other officials who can be indicted with or without
impeachment (save for the provision that when a President is tried in the Senate
for impeachment, the chief justice shall provide).
If the framers of the Constitution wanted to treat the
President differently from these other persons, they could have done so but did
There are, of course, many other issues and sub-issues involved in this complex
question and this article, written for non-lawyers, is designed to simplify and
give a general approach.
All this is likely to end up at the Supreme Court.
of the Court at the time may play a key role in the interpretation of all these
issues. That is the “balancing” argument discussed above.
I would like to believe, however, that the supremacy of
the law will overcome any partisan loyalties.
We are, after
all, talking about decisions that have longer term implications than who is then
Copyright © 2019 Ivan Hoffman. All Rights Reserved.
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Ivan Hoffman has been practicing intellectual property law for over 46 years and has written extensively about that topic. (www.ivanhoffman.com).
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.