Why Trump Can Be Indicted in Office (Updated)

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In December - long before the Mueller Report was completed and handed over to AG Barr, Barr’s and Mueller’s correspondence thereafter, and the AG’s testifying before the Senate Judiciary Committee - the following article was written and published on this site. I have asked to reprint this because its contents remain even more germane and relevant than when it first was published.

First, Special Counsel Mueller referenced in his report (though as yet only the redacted version remains public) the Office of Legal Counsel’s policy of not being able to indict a sitting president, but nonetheless states that Trump cannot be exonerated from a charge of obstruction of justice. Second, on April 19, Special Counsel to the president Emmet Flood wrote a letter to the AG, complaining bitterly about Mueller’s investigation.  Flood’s letter, reproduced here states in relevant part:

“What prosecutors are supposed to do is complete an investigation and then ask the grand jury to return an indictment or decline to charge the case. When prosecutors decline to charge, they make the decision not because that have ‘conclusively determin[ed] that no criminal conduct occurred,’ but rather because they do not believe that the investigated conduct constitutes a crime for which all elements can be proven to the satisfaction of a jury beyond a reasonable doubt.” 

In other words, Mueller should have either indicted Trump or cleared him regardless of the OLC policy.  With the above as prologue, Flood’s position has some merit, but for the reasons put forth in the article that again follows and not what he wrote. Below, you can read the original article:

Removal from Office Section:

The President, Vice president and civil officers of the United States shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high crimes and Misdemeanors.

-U.S. Const. Art. II, sec. 4

Impeachment Judgment Clause:

Judgment in cases of Impeachment shall not extend further to removal from office…but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment according to law.

-U.S. Const. Art. I, sec. 3, cl. 7


Judicial and authoritative guidance is an ever-evolving dynamic whose foundations reflect the times, societal norms, the evolution of human thought, and acceptance based on experience. Many times, they are laggards; how long did they take to recognize the rights of females and minorities, and marriage equality? With this road in mind, consider the Department of Justice’s memoranda on whether or not a sitting president can be indicted with a legislative branch that hasn’t exercised its constitutional weight to counter the President’s acts, omissions, downright lies, and falsehoods.

From name-calling to cheering on the demise of the Affordable Care Act – all on Twitter – to bellowing out sole credit for the recent government shutdown costing thousands their paychecks, this is but in microcosm of what we are witnessing by Trump’s continued presence in the Oval Office.

With the Democratic-controlled House convening later this week with its subpoena power, there will be a pile-on effect to the multiple investigations already undertaken by the Special Counsel’s Office, the SDNY, the New York Attorney General’s office, and perhaps even local authorities governing into the various scandals and headlines surrounding Trump. The week before Christmas, New York’s Attorney General also shut down Trump’s charitable foundation with him and his children barred for 10 years from serving on such boards.

The closest any of these investigations have come to Trump personally is the indictment, guilty plea, and sentencing of Michael Cohen and National Enquirer’s David Pecker disclosures earlier this month into Trump’s role with illegal campaign contribution violations. More shoes are to drop, but his asserted involvement – some claiming with assurance he is now an unindicted co-conspirator, despite his full-throated denial – is merely the appetizer to the full course meal yet to be served up by these various investigative bodies.

But if the Stormy Daniels and Karen McDougall payoffs were alone the tawdry mess in which Trump involved himself, like Bill Clinton before him, he would escape paying for his crimes. It is what comes next, and next, and next that he, like the nation, should be most concerned about.

If true, is all this foundational for impeachment or also for being criminally indicted?

News outlets continue to report that the only way Trump can be removed from office is through articles of impeachment filed by the House to be tried by the Senate (and of course with evidence). Talk of an indictment as a sitting president has not gained much traction or analysis. Media outlets have taken on blind faith without more than the Department of Justice’s policy because a sitting president’s indictment undermines the capacity of the executive branch to perform its constitutionally assigned functions.

This is a half-baked conclusion, requiring a reexamination of the DOJ’s reasoning and analysis applied to the days of Trump.

It starts with the two sections of our Constitution placed atop this article.

I’m not the first to posit that Trump can be indicted while in office using the Constitution as the genesis for this thinking. Even former Acting Solicitor General Neal Katyal has opined similarly earlier this month.

On September 24, 1973, Robert G. Dixon, Jr. (Assistant Attorney General, Office of Legal Counsel, DOJ) authored a 41-page Memorandum titled, “Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution While in Office” (OLC). The reason why this document was created, of course, was because of the acts and omissions of Richard Nixon as the President at the time. On October 16, 2000, another DOJ document was written by Randolph D. Moss, in the same role as Dixon; it was 38 pages in length and titled, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” and was intended as a Memorandum Opinion for the Attorney General.

As detailed in this latter document, the 1973 OLC concluded:

“…the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

The 2000 document summed up similarly:

“We believe the conclusions reached by the Department in 1973 still represents the best interpretation of the Constitution.”

The underpinning for both memoranda is not Supreme Court precedent, for there were only a couple of the High Court’s decisions from which the DOJ referenced, noting they didn’t squarely address the indictability, prosecution, or imprisonment of a president while in office. The decisions are United States v. Nixon (addressing executive privilege in safeguarding certain information) and Clinton v. Jones (addressing constitutional immunity against civil litigation unrelated to official duties).

Rather, the underpinning for the DOJ’s memoranda was built around the Office of the President, and the “severity of the burden imposed upon the president by the stigma arising both from the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process…[as that] would seriously interfere with his ability to carry out constitutionally assigned functions to ‘…take Care that the Laws be faithfully executed‘ ” (U.S. Const. Art II, sec. 3).

The 2000 memorandum provides:

“But the distinctive and serious stigma of indictment and criminal prosecution imposes burdens fundamentally different in kind from those imposed by the initiation of a civil action, and these burdens threaten the president’s ability to act as the Nation’s leader in both domestic and foreign spheres.”

The DOJ policy reiterated sixteen years before Trump’s election that a particular criminal charge might not require the time and energy of a sitting president so as to materially impede the capacity of the executive branch to perform its constitutionally assigned functions.

But this supposition has not been tested under present DOJ policy despite its recognition of the Supreme Court’s United States v. Lee decision in 1882 that “[n]o man in the country is so high that he is above the law.”

Impeaching a president is distinguished from criminally indicting and prosecuting them while in office, despite the former threatening to encumber a sitting president’s time, energy, and diverting attention from public duties. As the impeachment process is explicitly established by the Constitution and carried out by constitutionally elected officials chosen by the electorate, it is quite different from indicting a sitting president to be tried by lay folks not having a constitutional mandate.

This is despite both avenues of potential consequences looking alike, though as the DOJ opined in its 1973 OLC repeated by it 27 years later, impeachment “is a risk expressly contemplated by the Constitution, and it is a necessary incident of the impeachment process.”

How can a sitting president not be preoccupied with an impeachment process but too busy to be occupied by an indictment and subsequent criminal trial? A distinction without a difference. Equally a non sequitur, if no man is above the law, then how can a sitting president not be indicted for intentionally violating this well-established theory of law, particularly when feloniously affecting his own election by hiding illegal campaign contributions?

Even indicting a sitting president but postponing its consequences until after he leaves office would be unacceptable, again according to the DOJ. It reasons an indictment alone would make the President devote some energy and attention to mounting an eventual defense, and it would detract from the underlying dynamics of the country’s governmental system “…in profound and necessarily unpredictable ways.”

Again, how is this any different than contesting one or more articles of impeachment? And would this type distraction whatever its form affect a president as Trump who spends 25% of his presidency at (his) golf courses or watches hours of cable news and tweets at all hours of the day or night?

Per its 2000 policy, the DOJ’s conclusion remains:

“…a sitting President is immune from indictment as well as from further criminal process. Where the President is concerned, only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment.”

Trump has famously said that he could shoot someone on 5th Avenue and still have his followers as President. Adopting the two DOJ’s policy memos as a springboard, he would be immune from indictment for murder if his target died as a result of this hypothetically inflicted bullet wound. If persons other than a president would surely be charged, indicted, and prosecuted for such a crime, no person being above the law would become words on paper without meaning or substance.

And what about conduct other than contributions that evidence may well show Trump having engaged in, directed, or approved, more akin to what would be expected of a mob boss in charge of all his enterprises and underlings rather than as the leader of the free world? As to the former characterization, recall earlier this month his calling his once-personal attorney Michael Cohen a “rat” who the Mueller team called credible and helpful.

As eloquently put forth by Harvard Law Professor and constitutional scholar Laurence Tribe, the DOJ policy of not being able to indict a sitting president and being immunized from criminal trial while serving in office is likely unconstitutional. To repeat, DOJ policy is just that: a policy that does not have the force or effect of law, is not binding, and is not considered legal precedent.

Recall the Impeachment Judgment Clause. It states that the party convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.” The word nevertheless is instructive, since the Framers seemed to intend that regardless of impeachment, a sitting president can still be indicted. But, this cannot happen if, as occurred with Richard Nixon, the Vice President upon assuming the presidency issues a pardon, thus no liability could ever occur, impeachment or not. A presidential pardon would then make the constitution’s mandate of liability meaningless.

Can anyone say that Pence would not strike a deal with Trump to pardon him in exchange for Pence’s ascendency to the office Trump once held? It would be a fool’s errand to think, as Tribe has convincingly written:

“that the framers of the impeachment power would have created a system in which even the most criminally corrupt president could permanently escape full accountability. Immunized from criminal trial while serving in office…such a president could count on receiving a get-out-of-jail-free card upon his exit. For he would leave behind him a newly minted (albeit unelected) president wielding the power to pardon any and all “offenses against the United States.”

Would the nation be satisfied with only seeing Trump impeached, or forced to leave office, yet then to be pardoned by Pence and be free to return to a life of greed, riches, and, again quoting Tribe: “…his use of the highest office in the land to receive unconstitutional emoluments from foreign powers”?

Certainly not.

Trump’s escape from criminal prosecution by being pardoned would forever bypass and make useless the words of legal accountability prescribed by Article I, Section 3, Clause 7.

Recalling once more the Supreme Court edict 136 years ago in Lee that no man is above the law, allowing for the indictment of a sitting president is the embodiment of what the Framers intended by Article I, Section 3, Clause 7. The DOJ must revisit its policy since the times and societal norms have evolved, in large measure due to what Trump has already done, or what evidence in the future will disclose about his conduct deemed illegal or criminal if committed by the ordinary citizen.

The pronouncements of the DOJ of years past that the constitution forbids the indictment of a sitting president because it would undermine the capacity of the executive branch never contemplated Trump as president, and certainly not a president involved in unlawfully influencing a presidential election.

Times and norms have changed. Now, so must DOJ policy on not indicting a sitting president.