Can a sitting president be indicted?

[Syrinx]

I know that the Supreme Court said back during Monica that a sitting President can be sued in civil court. Did that ruling have ramifications regarding criminal charges? Or is impeachment and removal from office by the senate the only way to punish a president for criminal activity?

[donheld]

1. The indicted Clinton nt

[Syrinx]

3. really?

Do you really mean a grand jury indicted Clinton? I don't recall that, unless you mean the impeachment by the House. That IS very similar to a n indictment.

[donheld]

13. I sit corrected - i could have sworn he was

:spank:

[aquart]

9. Nah. They SUED him.

Anyone feel like filing against George?

[chalky]

31. I'll leave that up to the Wilsons. Lord knows they have cause.

n/t

[LVdem]

2. Sure...why not? Allegedly, he's not above the law...nt

[Carolab]

4. Nixon was to be indicted.

And resigned.

http://www.oyez.org/oyez/resource/case/410/

[Syrinx]

6. thanks, I didn't realize that

I thought the resignation was due to the fact Nixon faced certain impeachment, and conviction in the Senate (back when even most Republicans were basically decent people). I didn't know about the approaching criminal indictments.

I'm thinking and hoping that my faith in the American governmental and legal systems may soon get a big shot in the arm. :hoping:

[depakid]

5. No, No, No-

A president can be impeached- but he can't be indicted while in office.

However, once he's out of office he's fair game- and the statute of limitations "tolls" until that time.

[Syrinx]

7. I'm getting conflicting replies :)

But either way, I'll be happy as a clam if the SOB's are brought to justice. (Gods, please don't let me down.)

[Carolab]

8. Here

http://www.rense.com/general67/over77.htm

{snip}

History repeats. Yet, some in the younger generations do not have the time or patience to look back.

In the fall of 1973, a Special Prosecutor, on the track of the Watergate Affair, had compiled witnesses and evidence, which some contend was leading to the prosecution of President Richard M. Nixon for various Federal Criminal offenses.

Nixon had two options:

(A) He could have his attorneys put together a lawyer-like defense, based supposedly on the law and the facts.

(B) Whatever presidential power Nixon supposed he had, he might use to "chop off the heads" of the prosecutorial team---all of them.

The result was called "The Saturday Night Massacre". After August, 1974, when Nixon resigned facing Impeachment, some smaller newspapers carried the statement of the Foreman of a Federal Grand Jury. The Grand Jury, he said, had voted True Bills, Federal Criminal Indictments, against Nixon. But, the Justice Department warned the Foreman and the Grand Jurors, that if the indictment was released, they would be greatly harmed and the federal authorities would not protect them, according to the Foreman.

Connecting the dots might show what choices the Occupant and Resident of the White House, George W. Bush, has, if at all.

{snip}

It may be remembered that the Watergate grand jury wanted to indict President Nixon for obstruction of justice. When advised that a sitting president could not be prosecuted, the grand jury named him as an unindicted coconspirator.

http://www.csmonitor.com/2005/1007/p09s02-cods.html

[depakid]

10. Actually, it looks like I may have been wrong on this one-

:o

Not sure it's so settled an issue.

MARGARET WARNER: Professor Freedman, is Kenneth Starr -- are the reports accurate that -- if he believes he has the constitutional authority to indict a sitting president, do you think he does?

ERIC FREEDMAN, Hofstra University School of Law: He has the authority, the question of whether he should exercise it is quite another matter.

There are numerous instances where something which is constitutional may not be appropriate and that's exactly, for instance, what Leon Jaworski determined in considering whether to indict President Nixon. So the fact that as a constitutional matter he may have the authority doesn't mean that this is an appropriate circumstance to exercise that authority.

MARGARET WARNER: What leads you to believe that the Constitution does give him that authority?

ERIC FREEDMAN: Well, we have had a lot of experience with this since the framers disagreed on exactly this issue. We have had a vice president indicted, that was Aaron Burr for murder of Alexander Hamilton in their duel, as well as Spiro Agnew.

We've had a number of federal judges who were imprisoned before being impeached and when they said "You can't do that to me," that was rejected.

And we have a number of plausible circumstances regarding either very heavy crimes such as murder, where the president might have a defense of self-defense, where a Senate trial would be entirely inappropriate but we'd certainly want it resolved -- to much less serious things like drunken driving where we would not want to remove the president from office for it, but we would certainly want to express our disapproval -- all circumstances where the availability of criminal remedies is a good idea. And although this may not be such a circumstance today, it's unwise to interpret the Constitution inflexibly to cut off those possibilities for the future.

Looking at history.

MARGARET WARNER: Professor Gormley, where do you come down on this?

KEN GORMLEY, Duquesne University School of Law: Well, Margaret, I believe that when Archibald Cox and Leon Jaworski looked at this during Watergate and also Robert Bork, then the solicitor general, they concluded that it was most likely not constitutional to indict a sitting president, that's, in fact, why President Nixon was not indicted and Jaworski just named him an unindicted co-conspirator.

I think if you look at the constitutional history, if you look at Alexander Hamilton in Federalist 69 and 77, it was clear what he envisioned was that the president would have to be removed from office before he could be indicted or prosecuted. And when you look at the separation of powers, ramification of this, it becomes really clear why that's the rule.

It creates gargantuan problems if you allow a sitting president to be indicted and prosecuted because with that comes the ability of another branch of government to incarcerate him, to arrest him, to put him in jail. And that can effectively stop the functioning of the government because, unlike any of the officials who Professor Freedman mentioned, vice president or a federal judge, the president is the sole head of the executive branch.

He's the commander-in-chief of the Army and Navy, he is the head of all the executive departments and if you are allowed to indict and prosecute this president, you can also put him behind bars and keep him effectively from being able to govern the country.

http://www.pbs.org/newshour/bb/white_house/jan-june99/indict_2-1.html

[Carolab]

20. Yes, as I noted above. n/t

[karlrschneider]

21. depakid is right.

...

[Carolab]

22. Actually, depakid stands corrected, as depakid admits. n/t

[karlrschneider]

23. I'm not at all sure he 'admitted' as such. There seems to be no precedent

and as such, the matter is unresolved...

[depakid]

28. What I meant was that I shouldn't have been so emphatic

'cause the issue's unsettled.

I still think my position is the correct one, but there's a lot more room for error than I'm comfortable with.

[Carolab]

29. I meant re: Nixon. I know the issue is unresolved as does depakid.

The point being: Nixon WAS to be indicted, until it was realized that one would not want to prosecute a sitting president for various reasons. But it does not mean he could not have been indicted. As Margaret Warner's interview points out, there does indeed exist the AUTHORITY to do so--NOW as well as THEN.

[AndyTiedye]

18. He Can be Sent to the Hague

[progressivebydesign]

26. Actually, not anymore. See.. Bush and Co. passed a law.

It says that our military is authorized to attack the Hague, and rescue any official, military personnel, or citizen, that is held for trial at the Hague. You can google that, but I found the link a few months ago when this came up.

[Rosco T.]

11. Pres no, Vice Pres.... YES!

someone posted a link to a DOJ analysis and report that, in short, said the VP was not 'vital to the process of the government' and COULD be indicted!

[Syrinx]

15. I'll hang my hat on that!

I'm getting good vibrations!

[Birthmark]

12. I don't think it's ever been determined.

My advice would be to impeach, remove from office, and then prosecute. That'll clear up any possible problems. :)

[Dangerously Amused]

14. No, but a standing one can be kicked in the ballos! : )

[adwon]

16. Maybe

The grand jury that named Nixon an unindicted co-conspirator did so because it was unsure that it had the power to indict a sitting president. My instinct is to say that a sitting president cannot be indicted because a mechanism for dealing with corruption of that order already exists: impeachment. If presidents could be indicted, what would be the point of having an impeachment process?

[sandnsea]

17. To step in where the courts fail

That's why I always thought there was an impeachment process. If the rules of evidence are such that an indictment can't be brought, or a president is found innocent of some crime but is just known to be guilty, then the impeachment process is still available. It can be used if the crime is so aggregious they don't want to wait for the court process too, where evidence is clear. I don't see that it would have to be an either/or thing. :shrug:

[Rageneau]

19. Can a cringing president be indicted?

[NoSheep]

24. I thought "impeached" means "indicted". Not necessarily "convicted"

[progressivebydesign]

25. No impeached is a vote, sort a like a vote of no-confidence.

Indictment is.. well. indictment. I'm certain prez can be either.

[NoSheep]

27. Thanks. I wish we were saying the word so much these days that the

definition would be common knowledge.

[tritsofme]

30. This is the current opinion of the Justice Department

A Sitting President's Amenability to Indictment and Criminal Prosecution*

The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

October 16, 2000

MEMORANDUM FOR THE ATTORNEY GENERAL

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.

The Department's consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel ("OLC") prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) ("OLC Memo"). The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) ("SG Brief"). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.

In this memorandum, we conclude that the determinations made by the Department in 1973, both in the OLC memorandum and in the Solicitor General's brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time. In Part I, we describe in some detail the Department's 1973 analysis and conclusions. In Part II, we examine more recent Supreme Court case law and conclude that it comports with the Department's 1973 conclusions

<SNIP>

http://www.usdoj.gov/olc/sitting_president.htm

Its a good 50 pages long.

Interesting issue that won't be resolved until a President is indicted and it is appealed to the SCOTUS.

[slaveplanet]

41. Which I believe is why he is stacking the court

right now, and the strange timing of Rehnquist's departure and phony reason for O'conner's throwing in of the towel don't seem all that strange.

but alas...when they try it

This little gem needs to be thrown in their face, far and wide.

LANDMARK LEGAL FOUNDATION
Can A President Be Indicted While in Office, Or Must He First Be Impeached?

BY MARK R. LEVIN AND ARTHUR F. FERGENSON

January 23, 1998

Can a president be indicted while in office, or must he first be impeached? Recent events in Washington have renewed this once obscure debate.
Article I, Section 3 of the United States Constitution states, in part: "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."
There are two different concepts expressed in this part of the Constitution. First, impeachment is a political response, and the violations do not have to be specifically enumerated in a criminal code. It allows the public, through its representatives in Congress, to act on its revulsion with a president.
Some point to Article II, Section 4 of the Constitution and claim it requires criminal wrongdoing as a condition of impeachment. That section states, "The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction, of treason, bribery, or other high crimes and misdemeanors."
No less than the late constitutional expert Raoul Berger, who was one of the nation's leading scholars on the subject of impeachment, among others, wrote that treason, bribery, "'high crimes and misdemeanors' appear to be words of art confined to impeachments, without roots in the ordinary criminal law and which had no relation to whether an indictment would lie in the particular circumstances."
Second, the language in Article I, Section 3 makes clear that impeachment is not an exclusive remedy. A president is still subject to criminal prosecution, if warranted. He can be impeached and removed from office, but this is a limited remedy. Given this limitation, the Founding Fathers wanted to make clear that impeachment would not immunize a president and bar subsequent criminal prosecution. Obviously, this concern only arises in cases where impeachment precedes criminal prosecution. Therefore, if criminal prosecution precedes impeachment, it is not an issue.
Criminal prosecution and conviction does not remove a president from office. Impeachment is the only mechanism for his removal, absent issues of disability. Therefore, there was no question when the Constitution was written that impeachment would be available after a criminal prosecution. Consequently, there was no need for the Founding Fathers to provide language that preserves the impeachment power after a criminal prosecution.
Moreover, if a president truly believes that it is unconstitutional to indict a sitting president, the president has the power to stop the indictment against himself, or direct its withdrawal. He also has the power to grant himself an unconditional and complete pardon and thereby bar the prosecution. Since he has these powers, if an indictment is brought against him by the United States - meaning, by the Executive Branch that he heads - and he asks a court to dismiss it, he is asking for an advisory opinion. Under the Constitution, federal courts are forbidden from issuing advisory opinions.
They do not exist to relieve the president from difficult political decisions. This is so even if the decision could lead to his impeachment and removal from office.
The possibility of impeachment does not immunize the president from criminal prosecution. He remains, at all times, a citizen of the United States who is answerable to the law.
***
Mark R. Levin is president of Landmark Legal Foundation and Arthur F. Fergenson was a law clerk to Chief Justice Warren Burger.
Landmark Legal Foundation

[lovuian]

32. According to the Magna Carta 0f 12 15

It established the principle that no one, including the king or a lawmaker, is above the law

Not even King George!!!

So do we have a King or a President does it really matter!!!

and soon Congress will be voting and this could be interesting!!!

[Carolab]

33. An excellent summary from dKOS re: indicting the Prez and VP

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5103987

[Walt Starr]

34. Actually, this question has never ever been answered

Robert Bork issued an opinion that a sitting president could not be indicted, however, that does not square with Article I, Section 3. Clause 7 of the constitution:

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.

A strict constructionist reading of the constitution would require the upholding of any indictment issued against a sitting president.

[eggman67]

42. Actually a strict reading of that

would say that someone who has been impeached and convicted would be indictable.

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.

I think the argument against indicting first is that he would retain his Presidential powers and the chain of succession would not kick in thereby leaving the country effectively without a President.

Also I would think he'd be able to pardon himself, technically.

[garybeck]

35. he can be named as an unindicted co-conspiritor

what i hear is he can't be indicted but he can be named as a conspiritor.

[Walt Starr]

36. There has never been a court ruling, only an opinion issued by Nixon's

Solicitor General, Robert Bork.

From a strict constructionist viewpoint, yes, a sitting president can be indicted according to Article I, Section 3., Clause 7 of the United States Constitution:

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.

[yellowcanine]

37. That sounds as if they can be indicted after impeachment and conviction

but really doesn't say anything about indictment of a sitting president - the implication is no, however.

[Walt Starr]

38. That section applies to ALL impeachments

not just presidential impeachments.

So by your reading of it, no sitting federal judge or vice president can be indicted either.

[Carolab]

39. Right. In this nation, no one is supposed to be "above the law". n/t

[lovuian]

40. Yes so we are testing the law here Is the President above the law

obviously and doesn't that make KING!!!

[Xenotime]

44. That's what I always thought.

Let's impeach him. He should be removed from office for his actions against the world.

[yellowcanine]

43. It would seem so but I think it needs to be tested in court. I don't know

that it has. I do believe that at the time of Watergate the thinking was that indicting a sitting president was problematic - hence the "unindicted coconspiritor" business. If one thinks about it, though, it makes some sense. A politically inspired prosecutor could go after the President and get an indictment during a reelection campaign over something trivial. Getting articles of impeachment is much more difficult (or should be anyway, though we see what can happen when a different party from the President's has control of congress.