Can A President Be Indicted? State Law Complications

Whether a sitting president can be indicted under state law is a complex and uncertain area of constitutional law. While no sitting president has ever been indicted, the question of whether they can be has been the subject of much debate and analysis. Some argue that indicting a sitting president would undermine the executive branch's ability to function, while others contend that no one is above the law, and immunity for the president violates this principle. The Justice Department has a rule against indicting a sitting president, but investigations and evidence gathering are permitted.

Immunity of a sitting president

The immunity of a sitting president is a complex and uncertain area of US Constitutional law. While the Constitution does not explicitly grant immunity to the president, the concept of presidential immunity has evolved over time through the judicial process.

The Office of Legal Counsel (OLC) in the Department of Justice (DOJ) has consistently held the view that a sitting president cannot be indicted or prosecuted. This position is based on the belief that criminal indictment, prosecution, and punishment would effectively incapacitate the presidency, which they consider to be unconstitutional. The OLC's memoranda, issued in 1973 and 2000, distinguish between civil and criminal immunity, concluding that prosecuting a president would adversely affect their ability to govern. These memoranda are binding within the DOJ but do not carry the force of law.

The Supreme Court has never directly ruled on the issue of indicting a sitting president, and opinions vary among legal scholars. Some scholars argue that the president has absolute immunity from civil damages actions related to their official duties, as seen in Nixon v. Fitzgerald (1982). However, in Clinton v. Jones (1997), the Court ruled against temporary immunity for sitting presidents from suits arising from pre-presidency conduct.

The question of presidential immunity has been a topic of debate during the presidencies of Bill Clinton, Donald Trump, and others. While no sitting president has ever been indicted, criminal investigations have been conducted, and special counsels have negotiated to avoid indictments. The Mueller report, for example, concluded that investigating Trump was permissible, but indicting him would be unfair as it would give him the chance to defend himself.

The debate surrounding presidential immunity centres on the lack of explicit provisions in the Constitution and the belief that the head of government should not be above the law. While some argue that Congress must impeach a sitting president before criminal proceedings, others contend that immunity only applies to official acts, and unofficial conduct can be indictable.

Prosecution after leaving office

The prosecution of a sitting US president is a complex and uncertain area of constitutional law. While the Constitution does not explicitly prohibit indicting a sitting president, there are several arguments and interpretations that suggest it is challenging. Firstly, the Department of Justice (DOJ) has a long-standing policy, dating back to the 1970s, that asserts sitting presidents cannot be indicted as it would impede their ability to carry out their duties as the head of the executive branch. This policy is based on the understanding that the presidency should not be "'incapacitated' by criminal indictment, prosecution, or punishment.

However, once a president leaves office, the arguments for immunity become weaker. The Constitution does not grant any immunities to former government officials, including the president. The focus of legal debates then shifts to whether a former president can be indicted for conduct that occurred while in office and if so, what specific actions constitute indictable offences.

Most legal experts agree that a former president should only be indictable for actions clearly undertaken in a personal capacity, with official acts being the responsibility of the Senate to address. To navigate this challenging terrain, some have proposed the idea of a "prosecutorial jury" comprising former US attorneys appointed by both Republican and Democratic presidents. This jury would assess whether a former president has committed an indictable offence, providing a bipartisan lens to the decision-making process.

The issue of indicting a sitting or former president has rarely come up, and no president has ever been indicted. The closest instances were with President Richard Nixon, who was pardoned by his successor Gerald Ford, and President Bill Clinton, who escaped indictment through negotiations with special counsel over false testimony in the Monica Lewinsky scandal.

Indictment by state prosecutors

The indictment of a sitting president by state prosecutors is a complex and uncertain area of constitutional law. While the Constitution does not explicitly address the indictment of a sitting president, it is widely accepted that a sitting president cannot be indicted by state prosecutors. This interpretation is based on the understanding that indicting a sitting president would "unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." This position is supported by the Department of Justice (DOJ), which has maintained a policy since the 1970s that sitting presidents cannot be indicted.

The Office of Legal Counsel (OLC) within the DOJ has expressed concern that a criminal indictment, prosecution, and potential punishment of a sitting president would effectively incapacitate the presidency. They argue that the only legal means to remove or incapacitate a sitting president are impeachment or the 25th Amendment. The OLC's position is further reinforced by Justice Joseph Story's 1833 "Commentaries on the Constitution," which stated that the president is not subject to civil arrest, an outdated concept that allowed private parties to make arrests.

However, some legal experts and lawyers argue that the absence of explicit provisions granting immunity to the president from indictment indicates that the founders intended for the president to be subject to indictment and prosecution. They contend that immunity for the president violates the principle that nobody is above the law. Additionally, they highlight the lack of presidential immunities as a key aspect of American Constitutionalism, distinguishing the country from monarchical systems.

Despite these differing interpretations, no sitting president has ever been indicted, and the Supreme Court has not had a direct opportunity to rule on the matter. The closest instance was in 1974, when the Court required President Nixon to abide by a subpoena, stating that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

In summary, while the indictment of a sitting president by state prosecutors is a complex and uncertain area of constitutional law, the prevailing interpretation is that a sitting president cannot be indicted to avoid undermining the executive branch's functions. However, there are alternative viewpoints, and the absence of a definitive ruling by the Supreme Court contributes to the ongoing debate surrounding this issue.

Supreme Court rulings

The Supreme Court has never directly ruled on whether a sitting president can be indicted under state law. However, the Court has made several rulings that provide insight into this question.

In the case of United States v. Nixon (1974), the Supreme Court required President Nixon to abide by a subpoena, stating that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances." This ruling suggested that the Supreme Court did not view the President as being completely immune from judicial process, even while in office.

Another relevant Supreme Court ruling is Trump v. United States, where the Court's Republican-appointed justices, including three Trump appointees, announced a new constitutional immunity from criminal prosecution for presidents. This ruling granted presidents immunity from prosecution for criminal acts committed while in office, effectively giving them a "free pass" for any crimes they may commit during their tenure.

The Supreme Court's decision in Trump v. United States has been highly controversial and criticized by organizations like the ACLU as granting a "blank check" to the president and future presidents to break the law without consequence. The decision sets a precedent that many argue undermines the principle of equal justice under the law and creates a moral hazard by providing broad immunities to the president.

While the Supreme Court has not explicitly ruled on the question of indicting a sitting president under state law, its decisions in cases like United States v. Nixon and Trump v. United States provide insight into how the Court might approach such a case in the future. The Court's rulings suggest a balance between holding the president accountable to some extent and recognizing the unique position of the presidency and the need for some protections from judicial interference.

Historical context

The question of whether a sitting president can be indicted under state law has a complex historical context. While the Constitution does not explicitly address this issue, there have been several notable instances where the question of presidential immunity has arisen.

One of the earliest discussions of presidential immunity occurred during the Watergate scandal in 1973, when the Department of Justice's Office of Legal Counsel (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president. The OLC argued that the president, as the symbolic head of the nation, cannot be indicted or prosecuted as it would "hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs." This memorandum has been influential and has been cited multiple times since then to support the argument that sitting presidents cannot be indicted or prosecuted.

In 1974, during the Watergate investigation, special counsel Leon Jaworski wrote an internal memorandum concluding that he could indict then-President Nixon. However, Jaworski ultimately deferred to Congress's impeachment powers, and Nixon resigned facing impeachment. This case highlighted the ongoing debate between the executive branch's powers and the role of special counsel or prosecutors in investigating and potentially indicting a sitting president.

The issue of presidential immunity arose again during the presidency of Bill Clinton, who escaped indictment after negotiation with special counsel over false testimony given in the Monica Lewinsky scandal. The Supreme Court, in Clinton v. Jones, rejected the argument that a sitting president is constitutionally immune from civil suits seeking damages for unofficial misconduct. However, they did not address the question of criminal prosecution, leaving the OLC's conclusion from 1973 still standing.

The question of whether a sitting president can be indicted or prosecuted has continued to be a topic of debate among legal scholars and policymakers. Some argue that indictment must be allowed for a sitting president to prevent the statutes of limitations from running out before they leave office. Others suggest that allowing a sitting president to be imprisoned would essentially be an impeachment, as they could not perform their duties, potentially usurping the power of Congress.

In recent years, the special counsel investigation into Donald Trump's presidency and the handling of classified documents by President Biden have once again brought the issue of presidential immunity to the forefront. While it remains the official policy of the Justice Department that sitting presidents cannot be indicted or prosecuted, there are ongoing discussions and proposals, such as the idea of a ""prosecutorial jury" to provide a more impartial perspective on whether a former president should be indicted.

Frequently asked questions