Indicting a sitting President

[canetoad]

In an effort to understand what the arguments are, for and against, I grabbed a copy of The Constitution of the United States from this link: https://www.usconstitution.net/const.pdf

On the second page, Article 1, Section 3 - The Senate, this is written:

The Senate shall have the sole Power to try all Impeachments. When sitting for that
Purpose, they shall be on Oath or Affirmation. When the President of the United States is
tried, the Chief Justice shall preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.

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.

Am I being thick here, or does that second paragraph state quite clearly that a President can be indicted? I've just had a friend over and she agrees, but neither of us are, obviously, Constitutional scholars. Hell, we're not even Americans.

Does that really say what I think it does?

[ffr]

1. Valid point. I'd go a step further. Individual-1 did his crimes before he attained POTUS title

So my question is why isn't he being treated as a civilian?

[canetoad]

2. Some of his crimes, ffr

Just some of them.

[BigmanPigman]

3. Various people are saying he CAN be indicted.

Kenneth Starr, of all people, said so yesterday.

I believe Swalwell also said so.

[AndJusticeForSome]

4. It says that about the "convicted"

Thus, after conviction (and removal from office) he can be indicted etc.

[TexasTowelie]

5. However, the escape clause is that it mentions the Party "convicted".

The argument is that if the president isn't convicted by the Senate first, then he can't be liable and subject to indictment while in office.

A further question develops as to whether the president can be indicted when leaving office (also noting that a clock is ticking such that the indictment occurs within the statute of limitations).

[Silver Gaia]

6. I don't think it says that.

As I read it, it says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office,

This says the Senate can only convict in an impeachment trial to remove a president from office, and no more.

and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:

This says that if they are convicted in an impeachment trial, and therefore, removed from office by the Senate, that they cannot hold another office in the U.S. government.

but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This speaks of "the Party convicted," so that means they have been tried and convicted in an impeachment trial, an important distinction. It says that, if they are convicted by the Senate in an impeachment trial and removed from office, they can still be indicted for their crimes, go to trial in the courts, and receive judgment and punishment for their crimes. It is only saying that the impeachment does not take the place of being indicted for their crimes, that they can still be tried and go to jail. It does not say anything about being indicted prior to or without impeachment, nor whether they can be indicted without first having been impeached.

Hope that helps!

Disclaimer: I'm not a lawyer. I just teach critical thinking.

[canetoad]

13. Thank you

That helps in understanding the opposing points of view.

[Silver Gaia]

14. You're most welcome!

Glad I could help.

[Scruffy1]

7. The last place to look is probably the constitution.

Everything in American law is based on stare decisis-what has already been decided. The Supremes are the only court not bound by it but usually have to overturn a previous to decision to make any changes, Quite frankly, in the end the constutution is whatever nine political appointees say it is. for the rest of us it is mostly a waste of time. I especially dislike it when they hide behind it when they say something may be unconstitutional, because their is only one wway to find out.
If I was a lawyer arguiing before the Supreme court for indictment I certainnly would point out it's not prohibited. Even the current DOJ policy doesn't stop states from indicting him, which I think will probably happen some time this year. I would love to see a bunch of lawyers trying to argue he can't be indicted rather than his innocence.

[TreasonousBastard]

8. Seems to say that after he has been impeached and convicted and...

tossed out of office on his ass, he can than be indicted as a private citizen.

An historian should be able to get some idea what they were thinking when they came up with that. It looks to me that they were trying to insure that impeachment was not the end of it-- criminal or civil charges could still be brought.

[PatrickforO]

9. No. Oh, you can read it in by way of interpretation, but to me

what is being said is that an ex president recently impeached by the House, tried and removed from office by the Senate, presided over by the Chief Justice of the SC, CAN be indicted.

But, unfortunately for your point, these two paragraphs are silent on whether a president can be indicted before the impeachment/trial process begins. This, I believe, is why Trump (and Nixon and Clinton) were never indicted. Currently, the common interpretation is that a sitting president cannot be indicted.

Problem is, these two paragraphs are silent on that, too. It is merely the current interpretation and so could be challenged. If it were challenged, however, I do believe that the current interpretation would be upheld because of the implication in the bolded section of the second paragraph above. It doesn't actually say it, but the implication is clear that only an ex-president impeached, tried and removed can be indicted, tried, judged and punished according to law.

[pnwmom]

10. The people who argue that it's not allowed are usually

adding an invisible word to the text, like:

"but THEN the Party convicted shall nevertheless be liable"

They say that the use of the word "convicted" means the impeachment must come first.

[cstanleytech]

11. I read it personally that they can be indicted and tried but they would still retain

their office until impeached and or until their current term expires.

[LiberalFighter]

17. It would need to be that way when there are deadlines to prosecute.

Otherwise, they could commit a crime and avoid prosecution entirely if the deadline passes.

[NotASurfer]

12. I think that qualification is clarifying that Impeachment is not a criminal prosecution

In other words, if you're Impeached and then tried criminally for the same offense, no Constitutional protection against Double Jeopardy exists

It in no way says a sitting President is unindictable

By separating the two concepts I think the inference is cleanly that criminal prosecution for crimes committed by the President is not prohibited, merely that Impeachment is not a bar to criminal prosecution

[WeekiWater]

15. Does that not read that the party must be convicted?

That seems to be the cornerstone and how it reads. It limits the ability for congress to penalize, outside of what is stated, and then says "the party convicted shall nevertheless be liable and subject to Indictment...:

[canetoad]

16. Thanks to everyone

I can see now why it's not as cut-and-dried as I first thought and why this is subject to various interpretations.