A Sitting President Should not be Immune from Indictment
Posted: Fri Jul 26, 2019 2:15 am
For years, quite literally, years, this was a mystery as to whether Mueller would take the position that a President couldn't be indicted. SUbstupid claims he already knew that was his position, but what he really means is that is what he hoped. There was a 50/50 chance his hopes would come true and they did. But for years the media both left and right admitted they could only speculate which view Mueller would take. We never found out until his report was released. Here are some examples of this debate playing out since Trump got elected and the country started wondering if a sitting President would be able to get away with his obvious crimes.
Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes - NYT, July 22, 2017
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Ken Starr: President Donald Trump Can Be Indicted December 20, 2018
When Five Supreme Court Justices Said a President Can Be Indicted Aug 17, 2017
"There are many reasons why it is important to know whether Donald Trump is immune from indictment and prosecution as a sitting president, even if special counsel Robert Mueller decides not to go that route. While the following does not provide a bottom line as to whether the president has immunity, it presents one piece that may help resolve that ultimate puzzle. Most analyses of this topic, including a lengthy opinion by the Justice Department’s Office of Legal Counsel in 2000, overlook a Supreme Court case in which five Justices apparently favored the idea that the President can be subject to criminal prosecution. (The other four Justices did not exactly disagree either.)"
Can The Sitting President Of The United States Be Indicted? - NPR, August 22, 2018
The Only Way to Find Out If the President Can Be Indicted The Atlantic, May 23, 2018
"Scholars disagree on existing precedents—and the question won’t be settled until evidence leads a prosecutor to try it....Presidential indictment and prosecution is, in a sense, the Schrödinger’s Cat of Article II. We just don’t know, and we won’t know, whether it’s allowed until we open the box—that is, until evidence leads some prosecutor to decide that a sitting president, in the interests of justice and national survival, must face indictment while in office."
Can a president be indicted? CBS, May 28, 2018
"This is one of those tricky legal questions with no easy answer. Scholars are divided on the issue, and it's never been definitively settled. But Rudy Giuliani, President Trump's personal lawyer, says that a president cannot be indicted, and he says that special counsel Robert Mueller's office agrees with that assessment. However, Mueller's team has not confirmed what its opinion is on the matter."
Harvard Law Professor Says President Can Be Indicted December 10, 2018
"Some people claim that, even if Rosenstein gives Mueller permission to indict Trump as DOJ rules allow, the Constitution forbids such indictment. No! Nothing in its text, structure, or history supports that “POTUS-is- above-the-law” view, nor does any Supreme Court precedent support it.... In addition to being impeachable, Trump’s election law offenses were FEDERAL CRIMES committed when he was a private citizen in Trump Tower. If Mueller decides he shouldn’t indict @President in DC, the US Attorney for SDNY might give thought to doing so in NY. He has the evidence now. "
Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes - NYT, July 22, 2017
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”
Ken Starr: President Donald Trump Can Be Indicted December 20, 2018
When Five Supreme Court Justices Said a President Can Be Indicted Aug 17, 2017
"There are many reasons why it is important to know whether Donald Trump is immune from indictment and prosecution as a sitting president, even if special counsel Robert Mueller decides not to go that route. While the following does not provide a bottom line as to whether the president has immunity, it presents one piece that may help resolve that ultimate puzzle. Most analyses of this topic, including a lengthy opinion by the Justice Department’s Office of Legal Counsel in 2000, overlook a Supreme Court case in which five Justices apparently favored the idea that the President can be subject to criminal prosecution. (The other four Justices did not exactly disagree either.)"
Can The Sitting President Of The United States Be Indicted? - NPR, August 22, 2018
CHANG: And just to be clear, as a constitutional matter, it's still unresolved whether a sitting president can be indicted, right? This is just a choice the Justice Department made.
LACOVARA: That's right. In the Watergate investigation, we examined that issue quite carefully and reached the conclusion that there is no constitutional bar to indicting a sitting president. It's a matter of discretion whether to file such charges. But the issue is still unresolved because, neither in Watergate, nor in the Clinton years, did any prosecutors press the issue.
CHANG: So why did the Justice Department decide to adopt this categorical policy - not leave it to the department's discretion, but just decide, in all cases, the president - a sitting president should never be indicted?
LACOVARA: They have two basic themes. One is a kind of abstract constitutional theory. Indeed, it's one that the current Supreme Court nominee Brett Kavanaugh seems to accept, and that's the so-called unitary executive theory.
CHANG: Tease that out for me.
LACOVARA: It's the notion that all law enforcement resides in the president and that everybody else in the executive branch, including prosecutors, is essentially irrelevant. And the president, therefore, would in effect be prosecuting himself. And they think that that's a bizarre conundrum which the Constitution shouldn't allow.
CHANG: A very expansive view of executive power.
LACOVARA: It is. The other theory is a practical one, and that is that it would be too much of a distraction from the president's important duties as chief executive to force him to defend himself in court. That argument the Justice Department continues to adhere to, even though in the Paula Jones case, the Supreme Court unanimously rejected the exact same argument when President Clinton argued that he shouldn't be allowed to be dragged into court.
The Only Way to Find Out If the President Can Be Indicted The Atlantic, May 23, 2018
"Scholars disagree on existing precedents—and the question won’t be settled until evidence leads a prosecutor to try it....Presidential indictment and prosecution is, in a sense, the Schrödinger’s Cat of Article II. We just don’t know, and we won’t know, whether it’s allowed until we open the box—that is, until evidence leads some prosecutor to decide that a sitting president, in the interests of justice and national survival, must face indictment while in office."
Can a president be indicted? CBS, May 28, 2018
"This is one of those tricky legal questions with no easy answer. Scholars are divided on the issue, and it's never been definitively settled. But Rudy Giuliani, President Trump's personal lawyer, says that a president cannot be indicted, and he says that special counsel Robert Mueller's office agrees with that assessment. However, Mueller's team has not confirmed what its opinion is on the matter."
Harvard Law Professor Says President Can Be Indicted December 10, 2018
"Some people claim that, even if Rosenstein gives Mueller permission to indict Trump as DOJ rules allow, the Constitution forbids such indictment. No! Nothing in its text, structure, or history supports that “POTUS-is- above-the-law” view, nor does any Supreme Court precedent support it.... In addition to being impeachable, Trump’s election law offenses were FEDERAL CRIMES committed when he was a private citizen in Trump Tower. If Mueller decides he shouldn’t indict @President in DC, the US Attorney for SDNY might give thought to doing so in NY. He has the evidence now. "
