Scholars disagree on existing precedents—and the question won’t be settled until evidence leads a prosecutor to try it.
Can the president be indicted while in office? Rudolph Giuliani, at this writing one of President Trump’s lawyers, apparently wants the public to believe that there is a clear answer to that question—the one that by coincidence favors his client.
The one thing I am sure of is that there’s no clear answer.
To begin with, no one suggests that a president can never be indicted for crimes committed in office or out of it. Of course he can. The question is whether a president can be indicted while in office.
There’s no caselaw, but we have four interesting government memos dating back half a century. I reviewed them, and asked six prominent legal scholars how we should look for an answer.
Start with the memos—one issued by the Justice Department’s Office of Legal Counsel (OLC) during the waning days of the Nixon presidency; a contemporaneous memo by the late Robert Bork, then solicitor general, advising a district court that a vice president could be indicted; a 2000 opinion by the OLC reaffirming the 1973 opinion; and, finally, a 1998 opinion by a lawyer in Kenneth Starr’s Office of the Independent Counsel investigating President Bill Clinton.
The results are: three “no indictment” opinions, and one “yes indictment” opinion. Perhaps by coincidence, the three “no indictment” opinions were issued by executive-branch lawyers (who work for presidents), while the “yes” opinion came out of the Starr probe, which pursued Clinton with a passion and finally got him impeached.
The first OLC memo was issued on September 26, 1973, not long before the October 20 “Saturday Night Massacre,” in which Nixon directed officials of the Justice Department to fire special prosecutor Archibald Cox, and the top two Justice officials resigned, leaving the dirty work to then-Solicitor General Robert Bork.
That memo considers the Constitution’s text and finds no answer. It says, correctly, that there is no “airtight separation of powers, but rather … a system of checks and balances, or blending the three powers.” The Constitution provides very limited immunities for members of Congress and none for the president. The impeachment clause says that any official impeached can be tried—at least, but not clearly only, after removal. The debates during the framing and ratification of the Constitution suggest that the president is subject to laws like any citizen, but never discuss prosecution in office. During the trials of Aaron Burr, Chief Justice John Marshall had insisted that Thomas Jefferson was subject to subpoena—but also that as president he could refuse to attend court in person, and could withhold some evidence.
Left with no clear sources, the Justice Department lawyers asked what answer would best serve the nation. An indictment in office would besmirch the “symbolic head of the nation.” In addition, “only the president can receive and continuously discharge the popular mandate expressed quadrennially in the presidential election,” making an indictment or trial “politically and constitutionally a traumatic event.” Impeachment is the first line of defense against presidential misconduct, the author noted. “This would suggest strongly that … criminal proceedings against a President in office should not go beyond a point” that they would effectively remove a president, and thus become a short-cut for impeachment.
In other words, an indictment of a serving president wouldn’t be a good idea.
The Bork memo, issued just 11 days later, assumes that those arguments are valid, and shows that they do not apply to the vice president. On a number of occasions, Bork noted, “the nation lacked a Vice President, and yet suffered no ill consequences.” Indeed, the third vice president, Aaron Burr of evil fame, served the last year of his term under indictment by two states, New York and New Jersey. The president has “complete power over the execution of the laws,” making a prosecution of himself by himself absurd, Bork argued; a “Vice President, of course, has no power either to control prosecutions or to grant pardons.”
Twenty-seven years later, OLC reexamined the question. By this time, there had been major Court decisions, all indicating that the president was not immune to the reach of the justice system. United States v. Nixon required the president to turn over his tapes to a Court seeking to use them in a criminal case against other defendants; Clinton v. Jones held that Bill Clinton could not stay a sexual-harassment lawsuit against him until leaving office. In addition, the country had lived through its second presidential impeachment and Senate acquittal. Did the Court cases change the analysis? No, said the OLC lawyers. “The Framers considered who should possess the extraordinary power of deciding whether to initiate a proceeding that could remove the President … and placed that responsibility in the elected officials of Congress. It would be inconsistent with that carefully considered judgment to permit an unelected grand jury and prosecutor effectively to ‘remove’ a President by bringing criminal charges against him while he remains in office.”
Unbeknownst to the public, in May 1998, the distinguished constitutional scholar Ronald W. Rotunda had reached the opposite conclusion. He confidentially advised then-independent counsel Kenneth Starr that one particular president, Bill Clinton, could be indicted. “The U.S. Supreme Court has repeatedly reaffirmed the state[ment] that no one is ‘above the law,’” Rotunda wrote. The independent-counsel statute itself made no sense if the counsel could not indict the president—and Clinton had consented to passage of the statute that created the office, so in effect he had consented to be indicted. Anyway, the Whitewater “scandal” was not about his conduct as president: “witness tampering, document destruction, perjury, subornation of perjury, obstruction of justice, conspiracy, and illegal pay-offs … in no way relate to … President Clinton’s official duties” and “are contrary to” his duty “to take care that the law be faithfully executed.”
All of these opinions used the same materials, even as they reached varying conclusions. (One exception: Rotunda considered the laws of other countries, many of which—for example, Papua New Guinea’s—allow prosecution.) Consider one textual point: Bork cited the 25th Amendment, which allows the temporary removal of a disabled president. This, he said, argued against indictment because it shows the nation has to have a president at all times. Rotunda also cited the 25th Amendment. Since a president can always be replaced, he wrote, indictment in office would be no big deal.
No wiser after the memos, I bounced the question off half-a-dozen distinguished scholars, of varying professional backgrounds. Each of them began as the memo writers did—text, history, precedent, and policy. None thought those sources gave the answer, and each had a different suggestion for how to move the question forward.
Peter Shane, a former OLC attorney and a prominent separation-of-powers scholar at Ohio State University’s Moritz College of Law, suggested an institutional answer: A government lawyer, he suggested, owed a duty to begin with earlier executive-branch opinions. Those are not binding; but there’s “a presumption of respect for prior opinions,” he said. But such an important question should also inspire a complete review of all the historical sources.
The earlier opinions had suggested that an indictment of a president would be too disruptive. But Shane found that argument “not very persuasive.” The Constitution permitted disruption of a presidency by impeachment, he said. Would an indictment be “more destabilizing than impeachment?”
Walter Dellinger, now a professor at Duke University and Washington lawyer, headed OLC during the Clinton administration. As acting solicitor general, he also argued—and lost—Clinton’s claim that he should be immune, while in office, from Paula Jones’s civil suit. The history and caselaw sources lead nowhere, he said: “It’s a scoreless tie.” Affording the president immunity in office, he suggested, might make it impossible even to try other defendants in a serious conspiracy case. Watergate Special Prosecutor Leon Jaworski circumvented this problem with an indictment naming President Nixon as an “unindicted co-conspirator.” But Dellinger noted that Jaworski did not concede that a sitting president could not be indicted.
“There is no expertise” that can answer the question, he said. “It’s a matter of choice.”
Pamela Karlan, a prominent Supreme Court litigator and the head of Stanford’s Supreme Court clinic, noted that the Constitution answers some questions—“Arnold Schwarzenegger can’t be president”—but doesn’t answer many others. In this area, “it is possible that there is no answer,” she said. Institutional precedent to her seemed less important to her than the constitutional policy. “What are the big values of the Constitution?” she asked. “Will the country fall apart if we do this? Is it a really bad idea?”
Verna Williams, interim dean and professor at the University of Cincinnati School of Law, drew on her background as a litigator both for the government and in public advocacy cases. Supreme Court precedent seemed most salient to her. In both United States v. Nixon and Clinton v. Jones, presidents had claimed immunity from legal process while in office; in both cases, the Supreme Court denied the claim. Reasoning from those precedents, she suggested, a lawyer should conclude that “where there’s a right, there’s a remedy … no one is above the law.”
Nancy Leong, a professor of law at the University of Denver’s Sturm College of Law, teaches criminal procedure. Unlike Shane and Dellinger, oriented to the executive branch, she drew her answer from institutions of the criminal-justice system itself. A special counsel is a prosecutor, she noted. “There’s a way in which this takes us back to prosecutorial discretion,” she said. English and American law for centuries have assumed that a prosecutor may weigh the needs of justice and of the system as a whole in deciding which cases to pursue and which to drop. Why, she asked in effect, should a special counsel not function in the same way? “Prosecutorial discretion has always had a political aspect,” she said. For example, she notes the differing priorities of the Obama and Trump Justice Departments in areas like marijuana regulation and deportation of aliens. A prosecutor might ask, “What is the system designed to accomplish here? Built into the discretion of special counsel is the likelihood that the legislature is going to undertake the function provided.” If the system relies on the legislative branch for an initial check, what should a prosecutor do “if the legislature is not providing a check?”
Saikrishna Prakash teaches constitutional law at the University of Virginia and is the author of Imperial from the Beginning: The Constitution of the Original Executive, a historical study of the executive branch. There is simply no constitutional answer to the question, he said. The text is silent; the limited immunities for Congress pointedly exclude the president. Congress could certainly by statute create immunities for the president, but it has not. “There is no reason to impose a constitutional solution,” he says. Indicting a president might be a crazy thing to do; but “the Constitution can allow crazy things to happen.”
After listening to these wise scholars, I incline toward Prakash’s view. Presidential indictment and prosecution is, in a sense, the Schrödinger’s Cat of Article II. We just don’t know, and we won’t know, whether it’s allowed until we open the box—that is, until evidence leads some prosecutor to decide that a sitting president, in the interests of justice and national survival, must face indictment while in office.
If I were that prosecutor, I certainly wouldn’t ask Giuliani’s advice. I think that if I had clear and convincing evidence that a president had violated major criminal laws, I would do what prosecutors do: Go to the grand jury and ask for a “true bill” of indictment.
If I got it, all hell would break loose. But American politics has always been hell.
And when the dust settled, we’d finally know the answer.