Pelosi says indicting a sitting President “is not settled law”

“Asked by Today’s Savannah Guthrie about the Department of Justice’s guidance that a sitting president cannot be indicted, Pelosi said that was not settled law.”

I have to call bullshit on that one, at least in terms of a public indictment and conviction of a sitting president. The justice department is correct in their policy, and the reason has nothing to do with the law or the Constitution. Here is why: an indictment and even a conviction does not remove a President from office. Only a Senate trial can do that.

So let’s assume the President commits murder in front of hundreds of witnesses, or is discovered to have raped someone before he took office. If he can be convicted of a crime, no matter how heinous, he is still the President and the Commander-in-Chief, and would be running the country from his jail cell. I’m pretty sure we don’t want America to be in that situation. I presume that is one reason why we have the impeachment process and the 25th amendment – to prevent just that from happening. Imagine Donald Trump in the slammer, but still controlling the mighty U.S. Military and the nuclear launch codes.

Instead of prison, I suppose he would be under (white) house arrest.

Does that mean that a President can commit any crime he wants, as long as the Senate supports him and he stays in office until the statute of limitations expires? No, I don’t think so. Pelosi may be right in a legal sense. If the President commits a crime, assuming the Senate will not remove him, and the statute of limitations will expire before he leaves office, there seems to be no reason why a court cannot issue a sealed indictment against him while he is President, with the indictment to be opened when he leaves office. I think the answer to that must be “yes, he can be indicted,” for practical reasons rather than on Constitutional grounds, because that is the only way he can be held accountable for his crime, and the first principle of justice is that nobody can be above the law.

There are probably no sealed federal indictments against Trump because Mueller’s team putatively intends to respect the “no indictment” policy of the justice department, but there could be sealed state indictments against him right now. We would not know about them.

17 thoughts on “Pelosi says indicting a sitting President “is not settled law”

  1. It is *absolutely* not settled law; the only thing that says that a sitting president can it be indicted is a Justice Department memo from 1974. I defy you, or anyone else, to cite the Constitutional provision or law that disallows an indictment.

    Interestingly, there’s a competing viewpoint to the above referenced memo, written by another former employee of the DoJ: none other than Kenneth Starr who, during the Whitewater investigation, wrote a memo opining that the president can, in fact, be indicted.

    And who says karma doesn’t have a sense of humor?

      1. It’s not really a legal issue, but a practical one.

        You have to ask yourself this question. What did the founding fathers envision as the solution if the President committed a serious crime, was indicted and convicted, and the Senate would not remove him from office for political reasons?

        I can’t imagine that they imagined the President running the country from a jail cell. So what other solution would work? The only workaround I can see is that the President cannot face criminal charges unless the Senate first removes him and a new President takes office. Do you have an alternative to propose?

        1. Since the Founding Fathers chose to not codify a president’s immunity to indictment and prosecution, one must assume that they did not object to the principle; certainly not enough to prevent it, any way.

          And so long as we’re assuming, I don’t think that it’s a unreasonable assumption to think that they would have assumed that any indicted & convicted Chief Executive would naturally be impeached and removed from office by the Congress. Of course, the Founding Fathers also never had the, ahem, “pleasure” of meeting Mitch McConnell and his cabal.

          Frankly, the pearl-clutching over a POTUS running the government from inside a Federal prison cell is silly. If it comes to that, and we have a Congress that chooses to allow a convicted felon remain as Chief Executive, we’re fucked in many more egregious ways than Donnie trading pardons for cigarettes on the prison exercise yard.

          1. “[T]hey would have assumed that any indicted & convicted Chief Executive would naturally be impeached and removed from office by the Congress” .. True. And you would also think that any indicted and convicted federal judge would naturally be impeached and removed from office by the Congress. And also barred from further federal office. Yet, Rep. Alcee Hastings continues to represent Florida in the House of Representatives 20 years after being impeached, convicted, and removed from the federal bench. Guess the Founding Fathers just seriously under-estimated the need to spell out every eventuality in case the electorate ever were to adopt the basic stance of “who cares”?

          2. I think it is not reasonable to make that assumption. The GOP senators and Trump would simply say that the conviction was politically motivated, and that the judiciary does not have the right to remove a President. It takes 67 Senators to do that.

            That would require 20 Republicans with a sense of ethics who were not afraid of being rejected at the polls by Trump’s base. I’d be surprised if you could find five of those, let alone 20.

            I can just about guarantee you that the Senate would not remove Trump if he were convicted of a crime, unless it were something Trump’s base considered important, and there was absolute proof he did it, like recorded evidence. His conspiracy with Cohen to break election laws, for example, would not make the cut.

            “we’re fucked in many more egregious ways than Donnie trading pardons for cigarettes on the prison exercise yard.”

            Yes, that’s the sad part. We are indeed that fucked. And he really could do that, so he would have to be incarcerated in a way that would not being him into contact with others convicted in Federal courts.

            Think Magneto.

    1. Again, read what I actually wrote.

      IF a President can be convicted of a crime without being removed from office

      THEN he would be commander-in-chief of the world’s mightiest army from a prison cell.

      I don’t think it has to be settled by the courts or constitution. It simply cannot be. That’s why impeachment exists.

  2. Kevin’s closer to correct here. I’d say it’s settled law and it’s settled in the sense that a President certainly can be indicted; and he/she can be arrested, tried and convicted too while remaining in office. Whether the President can be forced to serve a custodial sentence that might interfere with their ability to fulfil their duties raises a Constitutional issue. But short of that, the law is settled: the President can be indicted and convicted. And, of course, in our history has been (President Grant for one).

    I’m a former federal prosecutor, and am well-aware of the Justice Department’s policy on this, but that policy can be set aside or amended at any time. It doesn’t embody any constitutional principle. And in any event the DOJ policy has no bearing on the vast majority of crimes which are state offenses. That’s where President Grant ran afoul of the law, a local traffic ordinance, for violating which he was arrested, taken to the police station, charged, and convicted. (Paying a $20 fine). No one seriously suggested then — or since — that the President is above the law. He is not.

    1. The problem now, of course, is twofold.

      1. Trump and his entire administration clearly believe it.

      2. The portion of the electorate still devoted to his cult also believe it.

      The truth of law only matters as far as the will to enforce it. Any enforcement will be seen as purely partisan to a fairly large minority. Thus, we could easily have a constitutional crisis that isn’t constitutional at all.

  3. The U.S. used to have an Independent Counsel statute that provided for an Independent Counsel who was appointed by a federal judge. But after Lawrence Walsh investigated a Republican administration and Kenneth Starr investigated a Democratic administration, both parties allowed that statute to expire. An independent Counsel might have been able to try an indict a president. But Robert Mueller is a DOJ employee who is required to follow DOJ policy which includes the 1974 opinion. Legally then, Robert Mueller cannot indict Trump while Trump remains in office.

    It would be interesting if a state prosecutor sought a state indictment of Trump. I can see that happening. I am not sure how that would turn out.

    1. DoJ policy is not law, and can be changed or ignored at any time by the AG.

      Now whether or not you think that anyone who would debase him/herself enough to work in DJT’s administration would actually do this is another matter altogether. But there’s nothing legally stopping it from happening.

      1. Practically speaking, no administration is going to change DOJ policy to allow the current president to be indicted while in office. Trump is not going to appoint an AG that will change that policy. Now it’s possible a future administration will change the policy so that a future “Trump like” president could be indicted in office. But if that does happen someday it will be too late to allow Mueller to indict Trump.

        As it happens I think it is a wise policy to require a president be removed from office before they can be indicted. I want Trump gone even more than many Democrats want him gone. Trump is damaging the GOP by his behavior so it may well be in the Dems best interest that he serve his full term before losing in 2020. But it will take real evidence of serious (illegal) wrongdoing before enough GOP senators would vote for removal. Only 2 more years unless the Dems do something stupid and turn it into 6.

        1. It is difficult to imagine anything that would get 20 GOP senators to vote for removal. Maybe if Trump and Putin jerked each other off on national TV, but even then only if Trump sang the Russian national anthem during the act, and then they both climaxed on a picture of Jesus.

          1. You forgot to add “. . . and then he raised taxes on the rich.”

            ‘Cause that’s really the only one that matters.

  4. You know what would be really, really nice, not to mention stupendously pleasing? If the Congress, both Democrat and Republican would forget all the back-biting and condemnation and simply start DOING THEIR JOBS and run the country.

    I understand that’s not going to happen, but it would be nice.

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