Can Trump be indicted while in office? Yes!

October 19, 2018

Can Donald Trump, as a sitting president, be indicted for crimes he committed before or while in office? Let’s check our Constitution.


Article 2, Section 4 states that a President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  


In plain language, the House of Representatives Judiciary Committee proposes specific charges. Then, a majority of the House decides what to charge the President with, via Articles of Impeachment.


The Senate sits as a jury, with the Chief Justice of the Supreme Court as judge. They listen to evidence from the President and the House. Two-thirds of the Senate must vote to “convict” the President, whereupon s/he is removed from office. “High crimes and misdemeanors” are, according to then-Congressman Gerald Ford, whatever Congress says they are.


Indictment is different. Indictment is a process where anyone can be prosecuted in federal or state courts for allegedly committing a crime.


Can a sitting president be indicted? Some legal experts say no, interpreting Article 1, Section 3, to mean that a president can be indicted and criminally or civilly prosecuted for actions taken while in office—only upon leaving office.  


However, that is an inaccurate interpretation. Article 1, Section 3 states that, “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.” [Emphasis mine]


This tells us several things:

•First, the only punishment a president can receive from the Senate is to be removed from office if impeached.

•Second, successful impeachment does not preclude criminal prosecution.

•Third, if a president is acquitted by the Senate, then s/he may be immune from subsequent criminal prosecution.

•Fourth, irrespective of an acquittal or conviction, a president can still be liable in civil lawsuits or other non-criminal proceedings.  


Nowhere does this Article even suggest that a president cannot be prosecuted while in office. To the contrary, the Article says a president shall be subject to indictment according to law.


However, each jurisdiction has a “statute of limitations,” which says that if a crime isn’t prosecuted within a specific period of time, then the government loses its ability to prosecute that crime.


If Trump is reelected in 2020, then his eight years in office could translate into the government losing its ability to prosecute him. Even if the federal statute of limitations were to be amended by Congress right now, it would not apply to crimes committed before the law was changed.


The Supreme Court has held that no president is above the law. United States v. Nixon (1974) addressed whether the president could choose to not comply with a subpoena that the special prosecutor sought to assist prosecutions of Watergate related offenses. The Court unanimously said that the president must turn over evidence unless releasing it would threaten national security.  


Chief Justice Warren Burger noted that any such executive privilege “must be considered in light of our historic commitment to the rule of law...We have elected to employ an adversary system of criminal justice...[t]o ensure that justice is done.”  


The Court unanimously upheld the rule of law in criminal matters against a sitting president. Nothing in the decision suggests that, if Nixon had been successfully impeached before he resigned, then he would not be subject to criminal indictment.


Nothing in this case would keep Trump from being prosecuted while in office, unless he were to resign and his successor were to pardon him. Even then, a pardon would not stop prosecution for state offenses. Presidential pardons only apply to federal offenses.


Clinton v. Jones (1997) doubled down on “no person is above the law.” The Court, again unanimously, held that Clinton could be sued while in office for acts he committed before he was elected president.


An important difference is that Clinton was facing civil lawsuits. Generally, criminal prosecutions are deemed more important than civil matters. So, if justice mandates that a civil litigant have her day in court against a sitting president, then certainly the greater importance of a criminal prosecution would lead the Court to the same conclusion.


Except for one thing. Clinton v. Jones was premised on a belief amongst the justices that a president could defend himself in a civil lawsuit without disrupting the work of the federal government. That turned out to be wrong. Civil depositions in the Jones matter led to Clinton’s impeachment, and the federal government metaphorically ground to a halt.  


Until recently, the Court has risen above partisan matters, as Nixon and Jones show. But we are not in that world anymore. It will be easy for the current Court to nod wisely, deem itself naïve in Jones, and overrule it. It’s cheap but easy to differentiate Nixon, and then it will be child’s play to hold that the Constitution, despite language explicitly to the contrary, does not allow for the criminal prosecution of a sitting president.


The information and opinions in this column do not constitute legal advice nor establish an attorney-client relationship. For your legal needs, please consult an attorney about the specifics of your case.


Leslie Dollen was a criminal and juvenile defense attorney for over 23 years with the Wisconsin State Public Defenders office, and a Legal Studies instructor at the University of Wisconsin-Superior. She is a community activist around sexual assault, domestic violence, and reproductive health.

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