Should prosecutors be able to indict a sitting president?

Should prosecutors be able to indict a sitting president?

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President Donald Trump's former lawyer Michael Cohen implicated his erstwhile boss in felony campaign finance violations, making the president an unindicted co-conspirator. Many are wondering if a sitting president can even be indicted, but legal scholars are split on the issue. Current Justice Department guidance argues "a sitting president can be impeached but not indicted." Others argue this is merely a guideline and has not been tested in court. No one should be above the law. What do you think?

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The question of whether a sitting president can be indicted on criminal charges is a tangle of legal precedent, constitutional scholarship and Justice Department memos. There are no hard and fast laws or rules on the situation, leaving it an open argument. Pamela Karlan, a Supreme Court litigator and head of Stanford's Supreme Court clinic, explained these issues in an interview with The Atlantic.

[T]he Constitution answers some questions—“Arnold Schwarzenegger can’t be president”—but doesn’t answer many others. In this area, “it is possible that there is no answer,” she said. Institutional precedent to her seemed less important to her than the constitutional policy. “What are the big values of the Constitution?” she asked. “Will the country fall apart if we do this? Is it a really bad idea?”

Legal scholar Eric Posner agrees the question is open for interpretation, yet he argues in an interview with Pacific Standard that the Justice Department must be able to take action when issues such as these arise.

"I do think a real flaw has been exposed," he said in a telephone interview. "You do need to be able to remove the president if he engages in abuses. It's too hard to do that. I would have liked it if the founders had put in a better system to deal with that.
"Our system invests people's loyalty in the president. If the Republicans joined the Democrats to impeach Trump, it would be politically devastating for them. So they can't do that. I think many of them probably wish they could, but they're stuck. That's a flaw in our system. In a few years, we'll know how serious a flaw it is."
...There's nothing in the Constitution that says the president cannot be indicted. There are a bunch of Supreme Court cases that suggest while the president has to be treated carefully when he's being sued or prosecuted, and the prosecutors have to take his obligations and duties into account, that does not amount to blanket immunity. It just means the courts have to treat the prosecution carefully. It's quite possible that Mueller could indict Trump, but a court would delay the trial until after Trump left office."

While he says the Constitution offers no clear rules on this situation, the Justice Department should be able to bring criminal charges against the president.

As the Constitution offers no hard and fast rules on whether a president can be indicted on criminal charges, the Justice Department must operate based on precedent and a series of memos written by members of the department's Office of Legal Counsel (OLC). 

The first of these memos, "Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While In Office," written on the eve of Richard Nixon's impeachment by then-Assistant Attorney General Robert G. Dixon, Jr., argued that indicting a sitting president would be detrimental to the well-being of the government as a whole.

“The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination,” it reads...
“A necessity to defend a criminal trial and to attend court in connection with it … would interfere with the President’s unique official duties, most of which cannot be performed by anyone else. It might be suggested that the same is true with the defense of impeachment proceedings; but this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process. The Constitutional Convention was aware of this problem but rejected a proposal that the President should be suspended upon impeachment by the House until acquitted by the Senate. …
“To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs. It is not to be forgotten that the modern Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries.”

Bob Bauer, White House Counsel to President Obama, disagrees with the premise of this 1973 memo. While he understands the integrity of the presidency should be maintained, he believes if the public knows their president would be indicted if not for his position as commander-in-chief, the damage to the credibility of the office has already been done.

The OLC concluded that a criminal indictment would sap the president’s credibility; the “stigma” of a criminal charge would damage his standing as the nation’s head, with consequences in foreign as well as domestic affairs. The requirements of defending himself would operate as constitutionally impermissible distractions from the conduct of the nation’s affairs.
But if the special counsel submits to the Deputy Attorney General a damning conclusion about the president’s conduct, and Rosenstein elects to disclose it “in the public interest,” the public will know that, absent the special immunity crafted by OLC, the president would have been indicted. It is difficult to see how the president will have been spared to any significant degree the “stigmatization” and distraction that OLC believed would follow from indictment. He would stand accused, but the country would be denied an adjudication for years to come. His presidency would continue for years under an untested prosecutorial judgment.

There is concern, however, that allowing for a president to be indicted would open up the possibility that individual states could completely stop the functioning of the government by bringing charges against the president. Per CBS News

"The basic point is that prosecutors should not be able to tie up the work of a president," Neal Katyal, a former acting solicitor general under the Obama administration, told CBS News. "Imagine, for example, that a South Carolina prosecutor had tried to indict Abraham Lincoln in 1864. It would allow a prosecutor from one state to undermine the national will. But federal prosecutors are not amenable to quite the same criticism."
This view was articulated in 1973 by the Justice Department, which insisted that indicting a president would "hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs." In 2000, the Office of Legal Counsel (OLC) came to a similar conclusion, stating that the "indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." 

Walter Dellinger, assistant attorney general and head of the Office of Legal Counsel was open to compromise in an op-ed for The New York Times. Dellinger agrees that forcing a president to partake in a full criminal trial is untenable with his responsibilities as president. Yet, a known criminal cannot be allowed to hold the highest office in the nation without repercussions.

A sitting president should not be required to submit to a criminal trial, an undertaking that would be incompatible with the duties of the nation’s chief executive.
That should not, however, preclude a grand jury from indicting a president when the facts and the law warrant, even if the trial itself has to be postponed until he or she is no longer in office.
An indictment in this context serves a critically important purpose: Without it, the usual five-year statute of limitations for most federal crimes would elapse, forever precluding a president from being held accountable for potentially serious crimes. Thus, a president should be indictable unless he agrees to waive any future defense that the statute of limitations expired during the president’s term.
...In Clinton v. Jones the entire court agreed that the fact that a federal court’s exercising of its constitutional power to hear a case “may significantly burden the time and attention of the chief executive is not sufficient to establish a violation of the Constitution.” Mere indictment of a president would not meet the stringent standard in Clinton v. Jones for presidential immunity from ordinary legal processes.

However, the framers of the Constitution did put into place a system in which the nation's chief executive can be held accountable for crimes—impeachment. Per The Atlantic:

United States v. Nixon required the president to turn over his tapes to a court seeking to use them in a criminal case against other defendants; Clinton v. Jones held that Bill Clinton could not stay a sexual-harassment lawsuit against him until leaving office. In addition, the country had lived through its second presidential impeachment and Senate acquittal. Did the Court cases change the analysis? No, said the OLC lawyers. “The Framers considered who should possess the extraordinary power of deciding whether to initiate a proceeding that could remove the President … and placed that responsibility in the elected officials of Congress. It would be inconsistent with that carefully considered judgment to permit an unelected grand jury and prosecutor effectively to ‘remove’ a President by bringing criminal charges against him while he remains in office.”

Dean Obeidallah, a writer and lawyer, argued in a piece for The Daily Beast, that if the Justice Department is trying to avoid sidetracking the entire government with a spectacle, impeachment is not the answer either. 

The DOJ lawyers’ view that impeachment of a president is OK but defending against criminal charges is too much of a burden is simply not grounded in reality. Just look at Bill Clinton’s impeachment and trial, which grabbed headlines for most of 1998 and into 1999. The Senate trial alone took five weeks from Jan. 7, 1999, until Feb. 12, 1999, when Clinton was acquitted. That was longer than Paul Manafort’s trial, which just concluded in three weeks. So the wheels of criminal justice can turn faster than the wheels in Congress.
Second, the government functioned while Clinton was fighting impeachment. And third, I can’t think of a bigger “spectacle” than that impeachment hearing. It was the talk of the nation for not just the five weeks it was conducted, but for the entire year of the Monica Lewinsky-Clinton scandal.

Jennifer Rubin, writing in an op-ed for The Washington Post, argues this specific case is unprecedented even among the unusual circumstances of potential criminal wrongdoing by the president. Rubin says because the alleged crime occurred not only during his campaign, but perhaps enabled him to win the presidency, Donald Trump should not enjoy the immunity that typically comes with the office.

We’ve never been confronted with the situation where the means by which a candidate got elected allegedly violated the law. When he should arguably have never gotten to the presidency to enjoy temporary immunity, must the prosecutor refrain from criminal indictment? There is no definite answer. One could look at pre-election criminal conduct as no different from criminal conduct during the presidency (i.e. no indictment), or one could look at the pre-election conduct as a fraud on the electorate. In the latter case, one could argue that the president cannot use his ill-gotten gain (the presidency) as a shield to immediate prosecution. (To take this question to the extreme, what if a candidate killed his opponent?)
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