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 “nevertheless.” 

          There is no statutory or case law which definitively answers this question and the Constitution is equally uncertain. 

The Constitution 

          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 consideration. 

          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 conviction.   

          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, impeachment.  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: 

They [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 Place. 

          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 Memoranda 

          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” theory.   The argument finds support from Article II, Section 1 of the Constitution which provides: 

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 domestic affairs.” 

          The 1973 memorandum affirms the position argued above that the impeachment provisions do not require a prior conviction for impeachment before criminal prosecution.  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 definitive answer.  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.” Id.  

          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  jury.” 

          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 or her. 

          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 civil trial. 

          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 temporarily. 

          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

 

b.      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 speedy trial. 

          The DOJ conclusion seems unlikely to be the intent of the framers of the Constitution.  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 Justice.”  

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 that conduct?   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 same.  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 not. 

Conclusion 

          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.  The composition 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 in office. 

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). 

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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.      


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