Executive Power

Vox Symposium on Whether a Sitting President Can be Indicted and Prosecuted for a Crime

The symposium includes contributions by 16 legal commentators, including VC bloggers Keith Whittington and myself.

|The Volokh Conspiracy |

President Donald Trump. Ron Sachs (CNP/MEGA /Newscom)

Vox has posted a symposium on the question of whether a sitting president can be indicted and prosecuted for a federal crime. It includes contributions by a wide range of legal scholars and commentators, including Volokh Conspiracy bloggers Keith Whittington, and myself. Here's an excerpt from my piece:

There's a longstanding disagreement over the issue of whether a sitting president can be indicted and prosecuted for possible crimes. In my view, the answer is yes. Nothing in the Constitution grants the president immunity from prosecution of the sort that exists in some European constitutions.

The idea that a sitting president is immune from criminal prosecution is also at odds with the Supreme Court's 1997 ruling in Clinton v. Jones, which holds that the president is subject to civil lawsuits (thereby allowing Paula Jones to proceed with her sexual harassment case against then-President Bill Clinton). A civil case can be just as disruptive as a criminal one….

Prosecution of sitting presidents does create the risk that a president will be tied up by a case involving some minor violation of the law. The founders did not envision today's extraordinarily expansive federal criminal law, under which a majority of adult Americans have probably committed a federal crime at some time in their lives.

Short of cutting back on the scope of federal law (a highly desirable measure for other reasons), the remedy for this would be for Congress to pass a law limiting prosecution of sitting presidents to very serious offenses…

While it would be a mistake to tie up presidents with prosecutions for minor offenses, it would also be an error to give sitting presidents immunity from prosecution for even the most serious crimes. A criminal president can do grave damage, and deferring prosecution until he leaves office — potentially many years later — may not be a sufficient deterrent.

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  1. “A civil case can be just as disruptive as a criminal one….”

    Lawyer thinks civil and criminal cases involve the same level of disruption. Sad.

    1. The presumption in the “disruption” argument is that the person being accused is actually innocent. “Disruption” is bad because it distracts the innocent executive from doing the job he was hired to do (and creates an incentive for his political opponents to make false charges).

      So assuming that the person charged actually is innocent and that the disruption is entirely from the distraction of preparing and coordinating your defense, how do you see the level of disruption to be significantly different between criminal and civil cases?

      1. “The presumption in the “disruption” argument is that the person being accused is actually innocent.”

        Where do you get that from? Guilty or not guilty, the potential disruption is the issue.

  2. Sitting federal judges have been tried and sent to prison, what’s so special about Presidents?

    In practice, it doesn’t seem to happen, as shown by criminal Presidents (and ex-Presidents, and former Presidential candidates) who don’t get prosecuted. There’s traditionally been a gentleman’s (and gentlewoman’s) understanding that “if you take one of ours, we’ll take one of yours,” and only those politicians who consider themselves special and pure are going to want to risk such an arms race. In other words, it’s probably only a matter of time…

    1. And I’m sure this is mentioned in one of the articles, but when the Framers wanted to shield government officials from the criminal justice system, they knew how to do it. So they wrote a clause that Congresscritters can’t be arrested on the way to or from Congress, except for treason, felony or breach of the peace.

      Nothing comparable to even that limited protection with respect to judges and the President.

      1. Following up on what Eddy said, isn’t there some legal maxim that things which aren’t said don’t exist?

      2. I’ve made the same point myself.

        1. Oops, sorry.

          1. Why apologize? It’s true: They knew how to explicitly give immunity where they meant to give it, and the Constitution says nothing at all that even implies Presidents have any form of immunity.

            Presidential immunity from prosecution was pulled out of a dark and stinky place, for dubious reasons. It has no basis in the Constitution.

      3. Wow Eddy. That’s profound. Yeah no real difference between a federal district court judge and the President. Both are vested with the executive power of the United States. And of course, both discharge similar duties, so interfering with the President’s ability to execute his official duties is exactly the same as impeaching a federal judge. Now do you really want to stand by your idiotic premise?

        1. Impeachment doesn’t send the defendant to prison, genius.

          1. I didn’t mention impeachment you abysmal idiot. The theme of this article concerns whether a sitting president can be indicted and prosecuted. You noted that federal judges have been tried and sentenced and wondered what was so special about presidents. I pointed out how ridiculous such a comparison was. So I guess I have to ask again, do you really want to stand by your idiotic premise? Because, apparently you do.

          2. Well I guess I did use the word “impeaching a federal judge” I should have said “trying a federal judge.” A rhetorical error I admit. But I still contend you’re an abysmal idiot for contending that the treatment of a federal district judge is somehow precedent for the treatment of the chief executive officer of this country.

            1. “Well I guess I did use the word “impeaching a federal judge”

              Oopsie.

              Genius.

              1. I also described you as an abysmal idiot. You apparently believe that the presidency is constitutionally equivalent to a federal judgeship. I thought abysmal idiot was strong enough but I guess I was wrong about that.

                1. There is no legal distinction between officers when it comes to impeachment, MKE.

                  1. Is abysmal idiocy contagious? This AOC level idiot Eddy thought a president should be subject to criminal prosecution because federal trial court judges had been prosecuted. Are you now taking up this abysmally stupid claim?

                    1. “This AOC level idiot Eddy…”

                      Whoa. Look, I know people say nasty things on the internet, but let’s dial it back a little, eh?

                  2. No, that doesn’t quite do justice to Eddy, who sees a federal judge tried and convicted and wonders how a president could be treated any different. Which, of course, is understandable because, as noted earlier (I guess I have to add that this is sarcastic since I am dealing with AOC quality intellects), both are vested with the executive power of the United States; and, of course, both discharge similar duties.

                  3. Your argument is vastly broader than what you need to contradict Eddy.
                    Impeachment is the same process whether judge or President.

                    1. I have no idea what the hell you’re talking about because it doesn’t relate to any of my arguments. I’m sure it makes sense to you, Eddy, and AOC so I’ll leave it with your brain trust to debate it further.

                    2. Perhaps Sarcastro is discussing impeachment because you brought it up:

                      “the President’s ability to execute his official duties is exactly the same as impeaching a federal judge.”

                      I supposed he missed your subsequent reassurance that

                      “I didn’t mention impeachment”

                    3. Not sure what the problem is. I guess you don’t remember saying “Sitting federal judges have been tried and sent to prison, what’s so special about Presidents?” My comments related only to this spectacularly stupid observation. Spectacularly stupid because I guess you don’t understand that federal judges are not vested with the executive power of the united states. But it is actually painful to read your abysmally stupid comments anymore and there is actually no real point since you lack the mental capacity to understand. So, like I said, you, Sarcastr0 and AOC go have fun finger painting or whatever it is you do to pass the time.

                    4. You can call me stupid if you want, but don’t compare me to a socialist.

                      To kind of even up the name-calling, I’ll call you a crypto-monarchist who wants the President to be like a King.

                      Of course, I think the problem is that, even though administrations of both parties have claimed this spurious, quasi-monarchical privilege, you are triggered because Trump is involved, so you check the scorecard, see who’s on which side, and resolve the legal issues accordingly.

                      I think I’m as much against the attempted Deep State coup against Trump as you are, but unlike you I don’t think putting monarchical principles into the Constitution is the answer to the problem.

    2. How many US presidents? How many judges?

    3. “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”

      What better way to determine good behavior for federal judges than by jury of their peers?

      But a President can only be removed by impeachment, even a felony conviction is not sufficient to removing a President without an impeachment. So why not just leave it to an impeachment until he leaves office.

      The other problem with indictments and trial for a president is that prosecutors can indict a ham sandwich, and the average person commits 3 felonies a day. It’s a shame but our prosecutorial system is too open to abuse by politically motivated grandstanters. The Rick Perry case where he was indicted for using his veto power is a clear example. Worse thing about that case was a politically motivated prosecutor was trying to retaliate for Perry’s well justified action against another prosecutor, the guild protecting its own.

      1. “What better way to determine good behavior for federal judges than by jury of their peers?”

        We’ve had judges being sent to prison but still clinging to their offices until Congress uncorked the impeachment option.

        “The other problem with indictments and trial for a president is that prosecutors can indict a ham sandwich, and the average person commits 3 felonies a day.”

        Then let the President suffer along with the average person. Maybe he’ll be incentivized to educate grand jurors about their responsibilities, and to press for the repeal of some of these bad laws.

      2. Lets say a President is convicted of a felony and given a prison term, while in office, but isn’t impeached.

        Would he be allowed to carry out his duties from prison?

        1. The 25th Amendment would let the VP, the Cabinet and Congress declare him unable to discharge the duties of his office, letting the VP take over.

  3. Sitting federal judges have been tried and sent to prison, what’s so special about Presidents?

    They can respond quickly to missile launches or other attacks?

    Clinton committed a crime. Should he have been prosecuted? And if so, sent to jail? Then what happens?

    Why wasn’t impeachment followed by a considered declination to remove from office enough?

    Everyone be careful jumping on your side’s bandwagon, as the shoe was on the other foot, and will be again some day.

    1. 1. They have vice presidents
      2. Yes. And he was. The “Jury” failed to convict.

    2. “Everyone be careful jumping on your side’s bandwagon”

      Which side do you suppose I’m on?

      I’m in fact *against* the TDS-afflicted Dems, media, etc. You could call me anti-anti-Trump, and on some issues pro-Trump.

      Trump is a much less-bad President than just about any Democrat I can think of, with the *possible* exception of Grover Cleveland (and I’m not so sure about Cleveland either).

      1. Trump is a much less-bad President than just about any Democrat I can think of, with the *possible* exception of Grover Cleveland (and I’m not so sure about Cleveland either).

        JFTR, I think Trump is easily the worst President in our history.

        (Not trying to start an argument here, just stating a personal opinion, as you did. )

        1. Worse than James Buchanan?

          1. Well, you have a reasonable point, but I’d say it remains to be seen. We don’t yet know how the current divisiveness will play out, though I think that some sort of breakup is not totally out of the realm of possibility.

  4. There is a more basic problem with the President. He (or, one day, she) is the head of the Executive branch, the branch in which the discretion to prosecute federal crimes resides. A federal prosecution would mean either that the President is prosecuting himself (an obvious no go), or that the prosecutor is independent of the President and his authority, which, IMHO, would be unconstitutional.

    What the Constitution contemplates is impeachment and removal, followed by (possible) prosecution.

    1. This still leave open the possibility of state prosecution. Suppose the Attorney General of a state decides to prosecute the president for state law violations. Any impediment to that?

      1. Personal jurisdiction?

        Sure you can indict and issue a warrant for the presidents arrest, but what then? If the President simply doesn’t travel to the issuing state then they would need to seek extradition from the federal executive…oh…and we’re back to square one.

        This must be the correct answer, both because the constitution places no such limits on the states (I suppose there might be something about that being insurrection, but that’s tricky), and under the dual sovereignty doctrine – just because the president can’t prosecute himself, nor anyone exercising his power, doesn’t mean that an entity with their own power can’t do so.

        As a practical matter of course it would never happen in anything close to our current system, and a President so indicted could travel to the issuing state with little fear – no LEO who didn’t want to get shot by the secret service would try to perform the arrest, and if the secret service didn’t stop it I think we’d actually be in a constitutional crisis (though I know that’s in vogue right now to say about everything)

        1. Personal jurisdiction and arrest are two different things.

          If the President acted in a way directed to a state, his actions are subject to that state’s jurisdiction. For example if the President is a resident of NY and has filed tax returns there, then the State has jurisdiciton over these acts, and could prosecute him if the returns was fraudulent.

          As for arrest, although the common practice for serious crimes is to arrest the defendant and bring him before a judge for arraignment, I don’t think that is Constitutionally required. If the President were indicted, he could be issued a Summons, and that sent to him along with the indictment, and an order with a trial date. (This is more or less what happens for minor crimes, where the police often issue an appearance ticket.) He can either show up and defend himself, or not. There are some procedural issues under the rules or laws of various states (for example, whether you can try someone in absentia), but nothing that could not be dealt with with a proper amendment. At least I don’t see any Constitutional objection.

    2. You’re missing a third alternative: That the prosecutor isn’t independent, but the President, recognizing a conflict of interest, doesn’t exercise his authority over that prosecutor.

      1. This is an alternative in the abstract only.

        The President is not likely to come under suspicion of murder or bank robbery. Most possible crimes are going to ones that he can convince himself he is innocent of – like obstruction for example.

        So the President is going to face an extreme temptation to intervene. (Even Barr adduced this as a reason for some of Trump’s actions wrt the Mueller investigation.)

        Few will resist that temptation.

  5. Of course the President can be indicted. Moreover, Mueller didn’t even need to necessarily indict, but simply RECOMMEND indictment. He did not. He failed to abide by the guidelines laid out for the special counsel.

    1. CNN has a “fact check” that falsely claims that the DOJ guidelines prevented Mueller from even considering whether Trump committed a crime.

      Mueller managed to screw up his report so badly that half the country thinks he referred the President to Congress for impeachment, when all he really said was that it wasn’t clear that the President didn’t commit a crime.

      1. Mueller clearly considered whether Trump committed a crime. And in section 1, he clearly considers whether Trump colluded with Russia, and comes down as saying the evidence doesn’t support it.

        He clearly could have recommended indictment, and given it to Rosenstein and Barr. That would not be indicting Trump, but recommending it, instead.

        Instead he punted.

        1. Like Mueller, Rosenstein and Barr are bound by policy to not indict.

      2. Mueller has both written and said that he tuned his investigation to the assumption that he could not look for indictable crimes.

        Which kinda means the only other thing he could be looking at with respect to the President’s culpability is impeachment…

        1. “Which kinda means the only other thing he could be looking at with respect to the President’s culpability is impeachment…”

          He also said why he was investigating the President…
          “Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible . The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system , we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”

          Indeed, since Mueller is a DoJ official and not a Congressional investigator, it would have been improper for him look at impeachment. If he wanted to do that, he should have taken a job working for Nadler.

          1. TiP, I don’t think you’re selectively quoting, but “the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing” makes it pretty clear what the purpose of the factual predicate regarding the President is pointing towards.

            You don’t think the DoJ should be able to refer an impeachment to Congress? What’s the policy issue with that?

            1. The Special Counsel’s Office, under the current regs, doesn’t have the capacity to refer an impeachment, although Mueller, like any American, is entitled to his opinion about whether or not the President should be impeached.

              The statement you quote was is the context of explaining why Mueller, as a part of the criminal justice system, ” determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

              In fact, Mueller was very clear about his approach. Mueller said that unless “the President clearly did not commit obstruction of justice” he would not make a determination about the President. And there’s loads of room between “clearly did not commit obstruction of justice” and “should be impeached.”

    2. Whether he can be indicted or not as a Constitutional matter is irrelevant to Mueller’s actions.

      Mueller operated under a DOJ policy that says he can’t be, so recommending an indictment would have been absurd, like recommending that Barr fly to the moon.

  6. In a federal indictment against the President, the President is effectively both the plaintiff and the defendant.

    1. A clearer case for recusal can hardly be imagined.

      1. The principle that a sitting President can not be indicted is effectively recusal.

  7. “I hate trump I hate trump I hate trump” muttered Prof Somin as he sat on the floor in a darkened room in a white nightie. Staring vacantly ahead and flicking the light switch on and off.

    1. “I have come to like Trump,” stated the bigots, the malcontents, and those pining for illusory good old days. “If appeasing or embracing ignorance, corruption, and intolerance produces right-wing judges, that’s an acceptable bargain.”

      1. “Right-wing judges” — the judges faithful to the Constitution — prevent hateful leftist bigots like you from riding roughshod over Americans’ rights. (The absurd persecution of President Trump is a prime example.)

        1. I intend to enjoy a first-rate wheat beer to celebrate your replacement, Ed Grinberg, because I love American progress.

    2. The number of people who come to comment just that all anti-Trump posts are preemptively bad faith seems to be growing.

  8. Is there perhaps a separation of powers issue because if a federal indictment is brought against a sitting president, he would be under the jurisdiction of a federal judge? That judge would presumably have the ability to jail the president, thus effectively removing the president from office, at least temporarily. Does the constitution grant the judicial branch that power?

  9. Given that a sitting President has power both to fire the prosecutor and to pardon himself, this seems a rather moot point.

    The Comstitution would not have bothered to say that he can be indicted and tried after impeachment if he could also be indicted and tried before. Constitutional text should not be interpreted to be superfluous if a reasonable non-superfluous interpretation is perfectly available.

    1. The Constitution didn’t need to say he could be indicted and tried before impeachment, because nothing in the Constitution suggests otherwise. He’s just another guy in this regard.

      It had to say that he could be indicted and tried after impeachment, to establish that the double jeopardy clause wouldn’t be invoked.

  10. Indictment of a sitting president bypasses (and potentially nullifies) the political process which put him in office. After a vote in which millions participate, the question of reversing the vote falls willy-nilly to a jury of 12? That seems unwise.

    For that reason, the impeachment process, which is broadly political, and largely controlled by the influence of all the nation’s voters on their representatives and senators, is the wiser remedy.

    1. The argument against indictability isn’t that it is duplicative. An indicted and convicted President would still be President unless also impeached and convicted by Congress, and an impeached and convicted President would not be subject to criminal penalties unless also indicted and convicted in a court of law.

    2. But this applies as well to a member of Congress.

  11. Despite the legal and Constitutional difficulties that several people have mentioned here, what about the practical difficulties?

    Let’s say it’s entirely prosecuted in State Court, and the President is arrested. Are local police going to tell the Secret Service to stand aside? How are the Secret Service going to protect the President while he’s serving time in prison? How will the president have constant access to the “football” which contains the country’s nuclear codes? House arrest would be an option for some people, but the White House is federal property, and you can’t hamstring a President by not allowing him to meet with foreign leaders outside the US, etc.

    Of course, the Vice President could claim the incarcerated President was incapacitated, and unable to perform his duties. But that would be another court fight if the President said that he could.

    And what would keep the President from using his authority to federalize state resources such as the military, and possibly law enforcement?

  12. No mention of the unitary executive?

    Why does everyone pretend like the dictum, “no person is above the law,” is violated if the President must be indicted (ie impeached) by Congress instead of the executive branch?

    How about this: a sitting President can totally be indicted by the executive branch . . . but in order for this to be constitutional, the President would be willingly indicting him or her self. The President would be giving an order or approval for the President to be indicted.

    1. Unitary executive isn’t exactly a universally adopted theory, ML.

      Your paralelling the criminal process with impeachment makes no sense.

      I think you just let Nixon off the hook, among other absurd implications of your argument.

  13. IANAL but what do you all think about the idea that Mueller’s appointment in and of itself was unconstitutional on the basis that he has too much power for an inferior officer and thus must be nominated by the President and confirmed by the Senate (like a cabinet member), which he was not?

    Constitution aside, false political propaganda served as the basis to investigate someone. For that reason alone, everything should have been thrown out, yet somehow we’re still talking about it 3 years later. FISA abuse, illegal spying, MI6/CIA/FBI non-violent coup, intelligence/political party conspiracy, etc, while troubling, are a sideshow to this basic problem. Even if none of them occurred, you can’t continue an investigation on false pretenses.

    1. The FBI says the Steele Dossier wasn’t used as a predicate for their investigation; it was Papadopoulos.

      Also the Dossier wasn’t false political propaganda.

      And there was no FISA abuse, unless you think the regular FISA procedures are abusive.
      And what Barr calls spying isn’t what most people cause spying, as he says it includes stuff well within legal limits.

      The only false pretenses are the world of mistruths you’ve built up.

  14. I wonder if Vox asked any conservative or libertarian legal scholars their opinion.

    1. A tellingly tribal comment.

      Prof. Somin is pretty dang libertarian; just because he doesn’t like Trump doesn’t mean he automatically becomes a liberal.

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