Can a lawyer on DU tell us what has to happen...

[LAS14]

... for a President to be indicted for obstruction of justice? Legally? I know congress can impeach a president for things that are not technically illegal (and the time has long passed when they should), but what technical, legal thing prevents a president from shutting down investigations, since he is the top dog in the executive branch?

TIA
LAS

[Eliot Rosewater]

1. I dont think you can obstruct justice when dealing with the investigative body?

Not sure, but that is what I heard on Rachel or Lawrence by an attorney.

FBI is the investigative branch.

[dixiegrrrrl]

2. Nothing prevents a Pres. from TRYING to shut down an investigation

but when they have tried, others have raised hell, publicly.
Nixon was given a choice, resign or be impeached, and it was when HE knew, and Congress knew, there were enough votes to impeach. So he chose resignation.
that worked with Nixon, a man who had a firm grasp on the importance of history and a choice what history would say about him.
Even then, it still took almost 2 years to reach that point because the media was unwilling to go after him at first.


Normally, the Dept. of Justice prepares the indictment.

Trump is also being investigated in New York, the Attorney General of the state there has power to indict, and Trump has no power to stop it.

The legal branch and Congress have the power to over-ride a President, when needed.

[hlthe2b]

3. I think he has to be impeached AND voted out before he can be prosecuted.

[LAS14]

4. What are the grounds for your opinion?

[hlthe2b]

6. Listening to various attorneys on TRMS (esp. Matt Miller, former Obama DOJ), Jake Tapper & Cuomo on

CNN: John Dean, and Lawrence Tribe and (Seth Abramson

While I can't verbatim quote any of them, I've yet to hear any of them say anything to contradict this conclusion.

Though this was what I gleaned from their comments, I think they would all emphasize that we are in (largely) unchartered waters


ALSO See my post#7 below for a more definitive answer.

[hlthe2b]

7. Here is what is likely to be the definitive opinion from Georgetown Law (Susan Bloch)

[PDF]Can We Indict a Sitting President? - Scholarship @ GEORGETOWN ...
scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2573&context=facpub
by SL Bloch - ‎1997

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2573&context=facpub
President is unique and cannot be subject to prosecution by state or federal systems while in office. He must first be removed either by impeachment, the voters ...

[LAS14]

11. Thanks very much. nt

[Warren DeMontague]

9. That's my understanding, too. As executive head he can't be prosecuted while in office

The only remedy is political, i.e. impeachment.

[Madam45for2923]

5. Am not a lawyer, but I understand the constitution is supreme, not the executive branch.

So Trump is trumped by the constitution.

[tritsofme]

8. The longstanding position of the Justice Department is that a sitting president is not amenable

to federal indictment. A president must leave office before he can be prosecuted.

link

[Statistical]

10. Not a lawyer but the only recourse is impeachment.

Understand that this has simply never been tried in the courts. No prosecutor has ever even attempted to bring charges against a sitting President in the history of the nation so you won't find any evidence to confirm or deny this because well it has never happened. The Constitution also provide no specific language prohibiting or endorsing an indictment. However most legal experts agree that the Constitution prohibits such an action. The recourse under the law is to impeach the President nothing else. It is the check and balance as envisioned by the founding fathers. Either a crime is serious enough for impeachment OR it can be resolved after the President leaves office at the end of his or her term.

So
a) The Congress impeaches the President and he is convicted
b) He is charged after he leaves office in ~4 years

On edit:
The Attorney General’s Office of Legal Counsel has only looked at this issue formally twice, one regarding Nixon and once regarding Clinton and in both cases reached a decision that the Constitution prohibits any indictment against a President during their term.

[LAS14]

12. Thanks to all. Really good answers to my question. nt

[L. Coyote]

13. The indictment is presented to Congress and the SAA arrests the President on orders from Senate.

Watch LIVE on Thursday.

Then, the House takes up impeachment and the Senate convicts. After that, the Supremacy Clause no longer applies and the criminal trial proceeds.

[LAS14]

14. Message deleted by DU the Administrators

[L. Coyote]

15. Sargeant At Arms. The wingnuts wrote some stuff about this during Obama's terms:

Can a Sitting President be Arrested? (I won't link these asshats.)

..... we have found one and only one person that has been specifically given the power within our government to arrest the president. The Senate Sergeant at Arms has the power to arrest anyone that violates Senate rules. The proof is in the following government website where it states: “The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States. http://www.senate.gov/reference/office/sergeant_at_arms.htm

[LAS14]

16. Message deleted by DU the Administrators

[Egnever]

17. This site lays it out pretty thoroughly

https://www.lawfareblog.com/another-bomb-drops-initial-thoughts-trump-asking-comey-kill-flynn-investigation

They also have some really interesting podcasts with former department officials discussing the ramifications from a legal perspective.

[Spider Jerusalem]

18. Sitting presidents cannot be indicted

what has to happen is for the Justice Department (or a special prosecutor) in the course of investigating to find clear evidence of obstruction of justice, and to forward that evidence to the House of Representatives, which will draw up a bill of impeachment. ("Obstruction of justice" was one of the items on the bill of impeachment against Nixon.)