On Indicting a Sitting President
We’ve all learned recently (because we are in one of the bad time lines) that the Department of Justice guidelines say that the President of the United States cannot be indicted for a federal crime while in office. I’ve mentioned in the comments a few times that this policy makes sense, and feel like I should lay out why it does.
Let’s start with the basics of how the government is structured. Per Article II, Section 1of the Constitution, “The executive Power shall be vested in a President of the United States of America.” All executive power, including those exercised by the Department of Justice and the Attorney General flow from the office of the president. That is why, in part, that political appointees (including the Attorney General and US Attorneys) serve, ultimately at the pleasure of the president; because as Harry Truman once said, the buck stops with the president. Unlike a parliamentarian system where the attorney general is usually independent from the elected government, in our system, the attorney general (like all cabinet officials) is responsible to the President because he/she is exercising delegated executive authority.
Then there is the question of how any sort of prosecution of the sitting president would work practically. Because the Attorney General, and the US Attorney that would be handling the prosecution serve at the pleasure of the president, the president can give them orders. Orders like “dismiss this case” or “don’t call those witnesses” or “don’t pursue that line of questioning.” Moreover, as the president, he could demand to see the entire legal file (including attorney work product) and then turn that information over to his personal attorneys. The president, in other words, would be standing on both sides of the proverbial “v” in US v POTUS.
Now, would it be an abuse of power for the president to do such things? Yes. And we saw that with Nixon and the Watergate scandal when he executed the Saturday Night Massacre. The problem is, if the president gives the AG or someone else in the DOJ an illegal/unlawful order, their options are to carry out the order, resign, or be fired and replaced by someone who will carry out the order.
That is why the Congressional power of impeachment is so incredibly important. Per Article I, Section 3 of the Constitution:
Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
That bolded bit is important. It considered impeachment and removal from office to come first. In fact, when Hamilton wrote about the presidency and impeachment in the Federalist Papers, he addressed this very issue in Federalist #69:
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
Again, this makes sense when you consider the fact that the president would, technically speaking, be able to control both sides of the litigation. It would create an opportunity for the president to create his own show trial and then claim that he has been exonerated by a kabuki dance.
Impeachment is the ultimate check on presidential power. And it has, obviously, been sparingly used in American history (whether it should be used more is another question). But a case where there is evidence that the president committed felonies is one where it should be used. One would hope that elected officials would recognize the importance of that and not engage in partisan politics, but that is likely asking too much of too many of our elected officials today.
Still, even without the possibility of conviction being certain, it is incumbent on the House of Representatives to investigate potential wrongdoing by the executive branch and to pursue articles of impeachment if they believe such wrongdoing warrants it. That is, in part, why the power of impeachment was divided between the House of Representatives and the Senate (see Federalist 66).
There is another avenue by which we can consider indicting a sitting president: the Twenty-fifth Amendment. However, the structure of the 25th is one that screams for a constitutional crisis of the highest order in such a scenario. Here’s the mechanism under the Amendment:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Again, let’s consider how this plays out. The AG comes to the Vice President and tells him that there is an indictment pending against the President. The cabinet confers and they vote to notify Congress that the President cannot fulfill his duties under these circumstances. The President then sends his own notice to Congress that he can fulfill his duties. In scenario number 1, he then fires every member of the Cabinet before they can send a second notice that would throw the question to the Congress. Now we face a blatant abuse of power by the president, which again leaves only the remedy of impeachment (because again, he can fire anyone at the DOJ that tries to charge him with a crime). In scenario number 2, the Cabinet sends the second notice and Congress must now decide whether the President can fulfill his duties. This plays out one of two ways: either the President is found capable (which takes us back to square one of the President’s powers) or he’s not and the Vice President serves as Acting President while the President stands trial.
Now that we’ve found a way for the President to stand trial without being able to influence the prosecution. Let’s consider what happens in a trial. How, exactly, does the President get a fair trial? Who can possibly be impaneled as a jury? His supporters? Those who disapprove of him and his job performance? What happens if there is a hung jury? Which, surely, there would be, especially given the polarization powers of the current president. And would those prosecuting the case be worried of reprisals should the President be found not guilty? (Relatedly: how does Congress respond if the President returns from trial and fires everyone in the DOJ involved in the investigation and case against him?) How long does Congress allow this to proceed before either allowing the President to return to office or beginning impeachment? If impeachment and a criminal trial proceed at the same time, what effect would one have on the other? These are real questions that have to be considered. And I am not sure there are any answers that will satisfy a sufficient portion of the population. Ultimately, the President standing trial while suspended from office under the 25th Amendment would be a shitshow (technical legal term, that).