A Presidential Indictment

Perhaps I’m missing something in the discussion of this issue, but to my mind the question of whether a president can be indicted is simple–the President can only be indicted by a federal prosecutor if he consents to the indictment.

I would hope that we can all agree that a state cannot indict the President. This would raise impossible structural problems similar to those identified by M’Culloch v. Maryland (in other words, one state would be able to control the Executive Branch and oust the President by throwing him in jail).

What about the feds? I’m hard-pressed to see why the President cannot consent to being indicted. He could allow the indictment from a US Attorney (through a grand jury) to proceed and could refuse to raise his unique office as a defense to the charge.

Why would a President want to do this? Perhaps to clear his name in a trial. Perhaps because he might think allowing a trial to go forward would forestall an impeachment. Are these likely scenarios? No. I would say a President would be crazy to let himself be indicted.

You may also like...

11 Responses

  1. Joe says:

    Jail isn’t the only thing that happens when people are prosecuted if that is your concern (if you are appalled at the idea of a state prosecuting a serial killer president even though the 25th Amendment alone provides a ready means for someone to step in). It also can be delayed. I’m not one for absolutes as things go here.

    I’ll grant — though you know people won’t want to and that’s fine — there is a special concern at issue here. But, free speech isn’t absolute, and that concern isn’t either. Anyway, Taney saw what happens if a president doesn’t want to accept the long hand of the law. Some state sheriff isn’t going to get far trying to arrest the president.

    Sure, a state can cause problems but McCulloch v. Maryland involved a state interfering with a national bank. The state didn’t have the power to interfere with a federal institution in that fashion. But, how far are you going to take that? What about federal judges? If three justices robbed and killed a few people, are you saying a state can’t prosecute either? At least for a president, the term will be up and statute of limitations are long.

    The argument both ways is offer at Lawfare (posting briefs both ways) and the waiver argument makes sense. But, perhaps, it can be argued that the president is not allowed to do that. Has a duty and the problems raised by those who argue for immunity exist either way and doesn’t allow that sort of thing. Anyway, if the president is declared unable to serve their duties under the 25A, the vice president perhaps might be able to indict as well. The VP there is acting president but the president is still in office.

  2. Joe says:

    “President would be crazy to let himself be indicted”

    So, you are saying, small chance Trump would do it, right?

    https://www.lawfareblog.com/starr-office-memo-argues-sitting-president-may-be-indicted

    [the state prosecution question is not covered by the “pro” side — remains agnostic]

    An article that seems to leave open state prosecution:

    http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1426&context=faculty_scholarship

    [Also cites the Burr precedent. There didn’t seem to be understood to be a problem with indictment of Burr for killing Jefferson. What if the Senate was evenly divided? A single state etc. The President in theory can work from a jail cell. Senate rules, as I understand, requires people to be present to vote. That would apply to tiebreakers. Or, what if the president was ill?]

  3. Joe says:

    (yes, I see the major typo)

  4. Brett Bellmore says:

    No, I don’t think we can all agree to that.

    As I have remarked before, the Constitution grants very limited immunity to members of Congress, demonstrating that the authors knew very well how to grant immunity if they meant to. The lack of any mention what so ever of any form of Presidential immunity thus has to be taken as proof Presidents don’t have any.

    Instead, you’re trying to give Presidents greater immunity than the explicit immunity granted members of Congress. You may think that good policy, but somebody’s opinion of good policy doesn’t make it a Constitutional mandate.

  5. Jack Chin says:

    The availability of removal to federal court makes me worry less that state charges could interfere with sitting presidents. I’m not saying it is permitted, just that it is not clear that states could use some sort of criminal indictment scheme to tie up a president.

    • Brett Bellmore says:

      Removal to federal court has a troubling record; Originally used where a local trial might be just a mockery with a preordained conclusion, it has more recently used to spare federal employees trials that might fairly convict them, by removing to federal court and then dismissing. (Lon Horiuchi, for instance.)

      Indeed, it reminds one of, “For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:”

  6. Bob says:

    A couple of things. #1) Prior the passage of the 25th amendment, I might’ve agreed with some of this analysis. However, as other commenters have pointed out, the 25th amendment supplies the remedy for any structural problems/separation of powers issues an indictment might impost. #2) Nowhere in the Constitution, 25th amendment notwithstanding, does it explicitly say the President cannot be indicted. There are two issues that I see with the textual argument. First, the President’s pardoning power specifically lists that a pardon does not interfere with impeachment proceedings. This, in my view, would serve to limit the President’s ability to both pardon himself and claim some kind of immunity from criminal prosecution. If the founding fathers meant for the President to be immune from indictment, seems to be that’s where they would’ve put it. Second, the President takes an oath to uphold the Constitution take care to execute the law. Seems to me that by breaking the law, he/she has violated that oath. This may factor more into grounds for impeachment than prosecution. 3) The SCOTUS held unequivocally in Clinton v Jones that a federal court can order the president to sit for a deposition in a civil case. The penalty for failing to obey a court’s order is contempt (i.e. jail). If a federal court can legally issue an order which can be punished by incarceration for failing to comply, I fail to see the distinction between that an indictment. An indictment serves as notice to a defendant that he/she has been charged with a crime and would allow issuance of some type of legal process compelling the president to appear. It’s not a trial or a conviction. Those events would obviously follow, but article only mentions an indictment. 4) An indictment by a state court would be a separate matter and was the question explicitly left open by the Court in Jones.

  7. Wayne Schneider says:

    Donald J Trump is a resident of New York State, and he has very likely violated state law. (His business, The Trump Organization, is also under investigation for various crimes.) That he currently occupies the Office of the POTUS is inconsequential. As has been said before, the President is not above the law. To argue that the POTUS is immune from prosecution by the states is to literally say that he is above the law.

  8. thomas bonsell says:

    The immunity of those in Congress is clearly spelled out. The Constitution says only members of the House can determine who can serve in the House. And only the Senate can judge fitness of senators. That means the House can not impeach a senator and the Senate can not convict a representative.

    As for presidents and other government officials that also is indicated. It says someone impeached in the house, convicted by he Senate and removed from office is liable to indictment, trial, judgment and punishment.

    This would mean a president must be removed from office first, the is subject to charges as is any person.

    I can\’t find anything in the Constitution that says a president must give his approval to be indicted. this chain of events might infer that to some.

  9. Louise B Andrew says:

    I don’t see any justification for the assertion that “the President can only be indicted by a federal prosecutor if he consents to the indictment.” Seems strange for a legal blog to lack a relevant citation.

  10. Gerard Magliocca says:

    Well, no president has ever been indicted, so there really is no citation possible except for a secondary source. It’s just my considered opinion.

    Just out of curiosity, suppose a local DA in Idaho or Montana had indicted President Obama for some crime and issued an arrest warrant. Is the position of some of the commentators that the President would be obligated to go into custody, or would have to avoid those states to stay out of jail? I don’t think that’s the law.