On the Indictability of the President

There is a big issue in the United States today around whether or not a sitting President of the United States can be indicted for criminal conduct. The matter is of great public import today because it appears obvious that Donald Trump could and probably should be indicted for various crimes including but not limited to obstruction of justice. We hear in the media that there is a Department of Justice policy against indicting a sitting president. The argument against the indictability of a sitting president usually involves two contentions. One is that the president's constitutional duties are so important that the president should not be distracted from them by having to respond to a criminal indictment. The other is that the Constitution specifies impeachment as the remedy when a president has committed a crime. The issue is of course a legal one. The place to begin any inquiry into any legal issue is with the applicable constitutional or statutory law. 

In the case of the indictability of the president the only foundational law that might apply is the United States Constitution. There is no federal statute on the issue. Two primary legal considerations arise from an examination of what the Constitution has to say about the issue. First, the Constitution does not expressly provide that a president either can or cannot be indicted while in office or otherwise. The question would be easier to answer if the Constitution did say something directly on that issue, but it doesn't. It does provide that the president may be impeached by the House of Representatives and removed from office by a vote of the Senate upon the House's articles. 

The proper legal way to frame the question, then, is: Does the Constitution intend impeachment and removal from office to be the sole remedy for criminal conduct by a sitting president? The Constitution does not specify that impeachment is the sole remedy for criminal conduct by a sitting president, but neither does it say that impeachment is not the sole remedy. When we're faced with a question of constitutional interpretation like this we must look to the entire constitution to see if there is anything in it that can answer the question before us. When we do that with the US Constitution we don't find a lot that's helpful, but we do find a little bit.

We find first of all that, like I said, the Constitution does not expressly answer our question. We then ask, however, whether it says anything at all about whether or not officials of the federal government are or are not subject to criminal indictment while in office. We find that while the US Constitution doesn't say much on the issue it isn't entirely silent on it. Article 1, Section 6, of the US Constitution provides, among other things, that US Representatives and Senators "shall in all Cases, except Treason, Felony and Breach of the Peace, shall be privileged from Arrest during their Attendance at the Session of their respective Houses...." The Constitution thus provides a limited immunity from arrest for United States Representatives and Senators. It reasonably follows from the immunity from arrest that the Constitution provides for Representatives and Senators that those persons are also immune from indictment under the terms of their immunity from arrest. The Constitution provides no such immunity for the president.

That the US Constitution is not entirely silent on the question of immunity from arrest (and by implication indictment) for federal officials but says nothing about immunity of the president gives rise to a strong argument in favor of the indictability of a sitting president. The framers of the Constitution knew how to provide for immunity from criminal process when they wanted to. They did it to an extent with regard to Representatives and Senators. They didn't do it with regard to the president. The necessary inference is that the framers of the Constitution did not intend the president to be immune from criminal process while in office. They did not intend impeachment and removal from office to be the sole remedy against a president guilty of criminal conduct. 

The argument that a president cannot be indicted because he or she can be impeached and removed does not stand up to critical legal scrutiny. The argument that the president's constitutional duties are so important that he or she should be immune from indictment remains, but it appears from the analysis above that the framers of the US Constitution did not intend the president to be above the law. This issue becomes one of conflicting public interests. On the one hand there is a public interest in having the president free to conduct the office of the presidency. On the other hand there is a public interest in maintaining the rule of law. That we are a country ruled by law not by persons is a bedrock principle of our republican form of government. That we have hardly always lived up to that principle doesn't change the fact that it is a bedrock principle for us. Making the president immune from indictment puts the president above the law at least while he or she is in office. It seems to me that especially in a case such as the one we currently have before us in which our president appears to have committed the crime of obstruction of justice preserving the rule of the law, which the president's statements and actions have directly attacked, must prevail. The president must not be allowed to claim immunity from prosecution because he is above the law in any case. When the president has ignored and attacked the rule of law that rule applies with added force. President Trump is not and must not be held to be immune from indictment.