This thread on Tom DeLay’s troubles – http://boards.straightdope.com/sdmb/showthread.php?t=310559 – recently got hijacked into a discussion of whether a sitting president, naming no names, legally can be indicted by the Justice Department or a state prosecutor without first being impeaced by the House of Representatives and tried, convicted and removed from office by the Senate. I think that’s a different enough and important enough question that it needs its own thread.
My first inclination is to say yes. Any state or federal judge, including any justice of the Supreme Court, can be indicted. Any member of Congress can be indicted. Any federal civil service employee can be indicted. Any presidential appointeeee, up to the level of Cabinet secretary, can be indicted. Even the vice-president – who is, like the president, an elected constitutional officer – can be indicted. (Remember Spiro Agnew?) So why should the rule be any different for the president? And I don’t think there’s any provision in the Constitution that makes the president immune from criminal prosecution while in office. There could be Supreme Court case out there that says so, but I’ve never heard of such.
Also – impeachment is a political decision, not a legal decision. The “high crimes and misdemeanors” for which a president can be impeached are not specified or even vaguely described in the Constitution. Which means the decision to impeach will never be made unless a majority of the House is hostile to the current administration – and usually for reasons having nothing to do with his purported crimes. Which led to the ridiculous, globally embarrassing spectable of Clinton being impeached by a Republican House for reasons we needn’t dicuss here, and then being acquitted by a Democratic Senate for reasons no better. Public prosecutors, OTOH, while they might not all be angelically selfless public servants, generally base their decisions on whether to prosecute or not prosecute a given suspect on other factors, like whether they think there’s actually been a crime and whether they think they can prove it.
BTW – just because a president has been tried and convicted in an ordinary criminal court would not necessarily mean, constitutionally speaking, that he’s not president any more – would it? But if he’s sent to prison, that might be considered a legal incapacity to continue in office, just as if he had gone insane; and that would justify the VP taking over. (Be careful what you wish for . . .)
I agree with BrainGlutton’s analysis. There’s no reason why a sitting President can’t be indicted or convicted. To hold otherwise would be to place him above and beyond the law, and we’re supposed to be a government of laws and not a government of men.
Which leads to the question, can a sitting president pardon himself for his crimes? I’d say no, for the same reason.
If the President can be indicted does that imply that the police have the power to arrest him, just as with any other citizen? Could they march into the White House, handcuff him, and take him down to the station if the evidence so warranted?
Sure. I’d recommend that they have a valid arrest warrant issued by a competent magistrate with appropriate jurisdiction, and that they telephone the Secret Service and tell them that they’re coming by soon, so that the Secret Service doesn’t mistakenly shoot anybody in the effort to protect the President’s person, but there no per se reason why the President couldn’t be arrested. In fact, the Secret Service, as law enforcement personnel should hold him until the arrest is made. The Secret Service is to protect the President’s person, not to shield him from the legal consequences of his actions.
A President has been given a speeding ticket and another was investigated for manslaughter but was cleared of all charges. I would say that the restriction is that the President could not be indicted for official acts as President; for example, a DA could not indict Pres. Bush for a crime related to sending troops to Iraq.
This issue has never been adjudicated, but the prevailing opinion in legal circles is that the President cannot be indicted without first being impeached and convicted by the Senate.* This is the reason that Nixon was named an “unindicted co-conspirator” in the indictments of his underlings due to Watergate and is (likely) why Starr didn’t indict Clinton for perjury.
Sua
I have heard some argument that a President cannot be indicted at all, that the Senate conviction would be his trial and punishment, but I believe that is a (small) minority view.
I think the problem here is that the President is the head of the Executive Branch, the very same branch of government responsible for enforcing the laws and prosecuting those who break it. Were he to be indicted, essentially he would be prosecuting himself.
Sua, I bow to your legal wisdom, but perchance do you have a cite? As you said, this question has never been adjudicated. I based my answer on the fact that Vice President Agnew was indicted while in office for tax crimes, and so that if the VP can be indicted so can the Prez. There was discussion of this question during the Clinton impeachment but as I recall - and my memory isn’t perfect by any means - that while Clinton argued that he couldn’t be indicted while he was President, that that was just an untested argument.
True, but the Justice Department is customarily allowed a broad range of independent discretion. (The FBI even more so. No prez ever told J. Edgar Hoover what to do!) Furthermore, in theory the president could be indicted by a state authority, as VP Agnew was.
I understand what you are trying to say, but I think the President is afforded way more consideration in our constitutional system than the Vice President. Any attempt to arrest a sitting President is going to cause a major constitutional crises. The President actually has to lead an entire branch of government. Realistically, the Vice President is just there on standby in case the President kicks the bucket and doesn’t have to do anything else.
Sooner or later some President is going to be in a position where it is blatantly obvious he needs to be arrested (hypothetical: he stabs the First Lady to death with an ice pick or something) and then as the FBI or whatever tries to beat down his door he scribbles on a cocktail napkin:
“I, President John Smith, hereby pardon President John Smith for any crimes he may have committed” :smack:
If only the Senate has the vested power to remove a President from office, isn’t that a necessary pre-condition for indictment? Trying, and possibly convicting, a sitting President would seem to effectively remove him or her from office for all practical purposes. It’s either that, or you allow the possibility that a President could hold office from a jail cell.
On what is that opinion based? There is no statute, no case law, no precedent to the contrary, so whence this alleged exemption?
Loopydude, as to that last, there have been a number of cases of Federal judges being convicted of bribery yet refusing to resign their posts (Alcee Hastings comes to mind). Only the impeachment process (combined with their districts’ refusing to assign them cases, sure) has prevented convicted corrupt judges from continuing to sit in court. Trial first, impeachment later works for that job, why wouldn’t it work for the Presidency as well?
What happens if the President is impeached and removed, then tried, and acquitted? Does he get the Presidency that We the People voted him into back? No. That would be in effect *sentence * first, trial later, as well as a usurpation of democracy itself by Congress.
blalron, your reason is why the Special Prosecutor law was created; so that the executive branch could investigate “itself” without impedance.
But imprisonment may incapacitate the President effectively removing him or her from office, and hence violating the Constitution. And if the President hasn’t been removed from office by the Senate, no one else has the vested right to serve in his or her capacity. Serving from prision is a virtual impossibility. If impeachment doesn’t come first, what’s the solution? The Executive branch is decaptitated. Neither the Legislative nor the Judiciary branches are even allowed to pick up the slack. If for political purposes a Senate refuses to impeach, an indictment creates a crisis. It’s a real Catch-22, I admit, but the only way out I can think of is that the Senate would impeach a President for indictable offenses for fear of voter backlash.
This implies that the cop catches the wrongdoer for a crime committed prior to the traffic stop. Clinton, however, was impeached for alleged perjury committed during the course of the investigation.
A better analogy would be if, on being stopped and questioned, the driver gave his name as “Jack Smith,” when his real name was Jonathan Smith (he was afraid his wife would find out that he was out driving around, not working at the office). The cop then finds out that he gave a fake name, and arrests him for lying to an officer: a crime that the driver wouldn’t have committed except for the pretext of a traffic stop.
The driver claims, of course, that since Jack is a nickname for John, he wasn’t lying. Nobody much believes him, of course; but a lot of people don’t give a crap.
I believe the difference between the stolen-computer example and the fake-name example is pretty significant.
At that point, there is enough immediate danger to the country that impeachment could be used as it was intended, just as in the case of an officer who refuses to perform his duties (like a President who takes the oath and heads to Fiji to stay drunk on the beach for 4 years - that’s entirely legal but would endanger the nation). The 25th Amendment seems to fit:
To do it right after the conviction, and quickly, or else invoke the 25th.
It has long been suggested that a sitting President is immune to prosecution while in office, but as was noted above, Ulysses S. Grant accepted a D.C. speeding ticket after going too fast in a horsedrawn carriage, and the point has never been definitively settled. In its decision permitting the Paula Jones lawsuit to go forward against President Clinton for prepresidential conduct while he was still in the White House, the Supreme Court alluded to the widely-held belief that the President is immune to criminal AND civil proceedings while in office, and dodged the issue on the criminal side, while refuting it on the civil side. We all know how THAT turned out. :rolleyes:
IIRC, both James Curley and Adam Clayton Powell were convicted of crimes but continued to serve in Congress while imprisoned, but I agree that it would be virtually impossible for a President to carry out his or her duties while in the slammer. The 25th Amendment would be applicable - and very useful - if a President were convicted in either a Federal or state proceeding and sentenced to prison.
Actually, both the House AND the Senate were in Republican hands in 1998-99.
I would argue that there is a fundamental difference between an indictment and an impeachment. An indictment is done by one person (usually a DA) and is processed through the judicial system while an impeachment is done by a committee (eventually a committee of 435) and is political situation.
Hypothetical: The New Orleans DA decides to indict President Bush for negligent homicide in the aftermath of the hurricane disaster. Would the House impeach? A House Demo might move to impeach, but those sort of impeachments are a dime-a-dozen and never get out of committee.
I didn’t say it settled the question, merely presenting some interesting arguments germane to the question. I think the most interesting part was rather the XXVth Amendment would apply to an imprisoned President.
I also think that part of the problem is in the phrasing of the OP’s question. Any DA could file an indictment, but would it be upheld, i.e. can a sitting President be held over for a criminal trial?