There were questions all week about the constitutionality of the Mueller investigation. Tonight, I take up one of those questions: can a sitting President be indicted while in office?
The short answer is ‘no’, according to the Justice Department’s Office of Legal Counsel which has looked into the matter twice, once during the Nixon crisis and again during Bill Clinton’s presidency.
Here’s their bottom line from the year 2000:
Remember, though, that this is just an opinion and a court could decide differently. Remember, also, that the appropriate remedy for a President-gone-bad is impeachment, not criminal prosecution while in office. Prosecution AFTER the President leaves office is another matter entirely. The interference rationale would no longer apply, and the plain language of the Constitution permits prosecution afterward. The Impeachment Clauses [Article 1, Section 3, Clauses 6 and 7] expressly state that a President is subject to indictment, trial, and punishment after an impeachment conviction in the Senate sets up removal from office.
You won’t find a ‘separation of powers’ clause in the Constitution, but the entire structure of the Constitution embodies the concept. The legislative, executive, and judicial branches and powers are set forth separately in the first three Articles of the Constitution. The Framers were influenced by the ideas of Montesquieu who warned that the failure to separate governmental powers would lead to the loss of liberty by virtue of the same government officials enforcing tyrannical laws that they themselves had just enacted. Failure to separate powers could further lead to violence and the “end of every thing,” Montesquieu warned.
The Justice Department’s analysis focused on constitutional duties the President alone is called upon to perform, duties such as being the commander-in-chief, negotiating treaties, and vetoing legislation passed by Congress. [2000 memo at 229,246-247]. The exercise of these duties would be substantially impaired by imprisonment, by the stigma of criminal process hanging over a President’s head, and by the mental strain and other burdens of having to prepare a criminal defense while in office. [2000 memo at 246]. The Justice Department distinguished sitting for a deposition in a civil matter, as happened in the Clinton-era Paula Jones case, from the much higher burdens that criminal process would impose. Moreover, burdening a President with criminal process while in office would destabilize the entire executive branch [2000 memo at 230] and give 12 people on a criminal jury the power to upset an entire national election [2000 memo at 231]. Also, the growth of government over time makes it more important not to interfere, the 2000 memo said several times [e.g., p. 247].
The Justice Department was careful to say that no President is above the law and that all Presidents are ultimately accountable [2000 memo at 236]. It also said it based its opinions, not directly on the text or history of the Constitution, but on more general considerations of constitutional structure – i.e., separation of powers. [id.]
It all adds up to temporary immunity from criminal prosecution for a sitting President while in office - at least as things stand at the moment. Will Robert Mueller and what’s been called ‘his merry band of Democratic donors’ have the chutzpah to try to upset the existing constitutional order and indict the President? We are getting closer to an answer with talk of subpoenas now in the air.