CAN DONALD TRUMP BE INDICTED WHILE A SITTING PRESIDENT?

Let’s be clear. The Constitution provides no explicit immunity from criminal sanctions for any civil officer. The only textual grant of immunity for federal officials appears in the Arrest and Speech or Debate Clauses of Article I, Section 6 which states, in relevant part . . .

The 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.

After searching ART II, which deals with the Executive Branch, I have been unable to find any such reference. It has been established that the Vice President can be indicted while in office (eg, Spiro Agnew in 1973), and since the Framers specifically exempted members of Congress, they could and would have done the same for the President if it had been their intent. I believe the Supreme Court, if called upon to decide, would find these arguments applicable to both offices (especially with an “Originalist” like Neil Gorsuch on the Court.

Moreover, the Impeachment Judgment Clause provides:

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.

This issue has been raised repeatedly since the founding of our country. In the Burr case, President Thomas Jefferson asserted that as President, he had the “privilege” of not turning over subpoenaed documents that Aaron Burr, an ex-vice president charged with Treason, claimed would exonerate him. Burr was initially tried by Chief Justice Marshal, sitting as a circuit judge in Virginia. Although the reasons remain cloudy, Jefferson ultimately complied with the subpoena and Burr was acquitted, but he never did appear in the courtroom as ordered. See United States v. Burr, 25 F. Cas. 187 (C.C. D. Va. 1807) (No. 14,694). Nearly this exact scenario was replayed twice more; one for President Nixon, and again for President Clinton with the same result each time.

In Nixon, Chief Justice Berger freely quoted Marshal’s opinion in Burr which stated, inter alia, “[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual. See United States v. Nixon, 418 U.S. at 708. Although this would lean toward the creation of a Presidential immunity doctrine, many have interpreted it as meaning that while there is deference to the Office of the President, there is no absolute immunity from criminal proceedings for a sitting president.[1] Others, believe that in this instance, Jefferson established a right for an independent interpretation of the Constitution by the Executive Branch. In no interpretation, however has there ever been any absolute immunity from criminal prosecution mandated by statute or judicial precedent. Ultimately, while Executive Privilege has been exerted and recognized many times in our history, it would seem that it, and the idea of Executive Immunity are more tradition than law and, therefore, not dispositive.

There is also a “separation of powers” argument that concludes that since the President is the only nationally elected officer, a trial of a sitting president would not only upset the balance of powers, but allow 12 people, sitting as a jury, to overturn a national election, in addition to impeding his ability to function as President. It is arguable, however, that it would be possible to indict a President, but defer trial until he was out of office, without in the meantime unduly impeding the power to govern, and the symbolism on which so much of his real authority rests. There are drawbacks, though, to withholding post indictment proceedings until after a sitting president is out of office, such as the possibility that the statute of limitations might run, thereby resulting in a complete hiatus in criminal liability.

 The Office of Legal Counsel (“OLC”) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune.[2] The OLC Memo concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office, but that the President is uniquely immune from such process.

Secondly, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution.[3] Bork was careful to explain, however, that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office; a position which was reached by asserting that indictment and prosecution of the sitting president should be barred by the doctrine of Separation of Powers because such proceedings would “unduly interfere in a direct or formal sense with the conduct of the Presidency.”[4] It was on this ground that the memorandum ultimately concluded that the president was immune from criminal prosecution while still in office.

While there is a great deal more history, written material and case law involved in this issue, after reviewing the facts, I believe the concept of Presidential Immunity is based primarily on individual opinion and tradition, and has no basis in law. Therefore, the answer to the question originally asked is, “yes,” the President can be indicted and tried for criminal acts, even while he or she is in office, and independently of the “political” act of impeachment.

[1] John C. Yoo, The First Claim: The Burr Trial, United States v. Nixon, and Presidential Power, 83 Minn. L. Rev. 1435 (1998)

[2] Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (“OLC Memo”).

[3] Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) (“SG Brief”).

[4] Id at 27