The Justice Department has maintained that sitting presidents can not be indicted, but is this position in line with reality?
According to a new report from the New York Times, the answer to that question is, in fact, no. The president can very well be indicted, should the opportunity present itself; the office of the presidency is not above criminal prosecution.
The New York Times bases its new report on a memo from the days of Independent Counsel Kenneth Starr’s investigation of President Bill Clinton. Although Starr never ended up indicting Clinton, his legal team concluded that it was, in fact, within their rights to do, and they wrote up a memo about it which has been preserved to this day. This memo, which the New York Times just obtained via a Freedom of Information Act request, states:
‘It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties. In this country, no one, even President Clinton, is above the law.’
In a system that relies heavily on legal precedent for proper interpretation and execution of the law, the same standard that applied to President Clinton in Starr’s estimation applies to President Trump. He is not above the law, and if the opportunity presents itself, he will be held accountable.
Opponents of the idea that a sitting president can be indicted, from members of President Richard Nixon’s team to members of President Bill Clinton’s team, have maintained that indicting a president would be an undue strain on their ability to carry out their official duties.
There is, quite simply, no concrete, written legal precedent for this interpretation of the law. The Constitution does not keep sitting presidents from prosecution; in fact, it provides, both in its original text and in the text of its amendments, procedures for filling the Oval Office should the president vacate it for whatever reason.
In short, guess what, Trump apologists — if the president can no longer perform the duties associated with his office, we have an answer for that in the installation of Mike Pence as the nation’s chief executive. Starr made a form of this argument in his aforementioned memo, referencing the 25th Amendment provision for replacing a temporarily incapacitated president.
The U.S. Supreme Court has never explicitly ruled on the question of whether or not a president can be indicted while in office, but in a 1997 ruling in the case Clinton v. Jones, they did state that lawsuits against the president can proceed while they are in office.
Special Counsel for the Russia investigation Robert Mueller is required to follow the main body of Justice Department rules and regulations while carrying out his work, and it’s the Justice Department that has issued the memos opposing Starr’s position that sitting president’s can be indicted. However, there “is no guiding precedent” about whether or not memos fall into the categories of the rules that Mueller must follow, so it remains to be seen how a situation where he concludes that an indictment of President Trump is in order would play out.
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