I’ve read a few articles on this subject, and the conventional wisdom is that it’s highly unlikely that a sitting president would be prosecuted for the simple fact that impeachment itself would suffice to remove the president from power and that any prosecution, should it be deemed necessary, would proceed after the president leaves office. This is presumably in order to avoid having a prosecution interfering with presidential duties.
However, it is increasingly clear that there may be nobody in congress to hold President Trump accountable for his attempts to obstruct justice in the growing Russia scandal. If a congressional faction enables the president in violating the constitution and the rule of law, and in effect violating his oath of office, then the constitutional mechanism for stopping a corrupt president would essentially cease to exist, creating an existential constitutional crisis.
I think it’s clear that the Framers of the Constitution wanted to make the removal of the president extraordinarily difficult. Moreover, they clearly understand that executing presidential duties have consequences and that if people or agencies were allowed to respond legally to those consequences the president would be unable to do his job. At the same time, though, like so many other aspects of the constitution, I find it hard to believe that there aren’t boundaries.
Let’s suppose that career federal agents and prosecutors come out with enough evidence to support an indictment, and let’s suppose further that Trump uses all of his presidential prerogatives to hinder the investigation. Let’s say he personally instructs people to remove agents and prosecutors and let’s say that Republican partisans in congress refuse to intervene – none of this if far-fetched at all. What then?
It would be nonsensical to prosecute a sitting President at the federal level, because the President himself embodies all of the executive authority. If he’s not prosecuting himself, then nobody is. That’s why we need to have an impeachment process in the first place, because if we didn’t have that, there’d be no way to hold the President accountable for federal crimes at all.
It probably is possible to prosecute him for state crimes, though I doubt you’d find a governor bold enough to do it.
He personally instructs people to remove agents and prosecutors.
Republican partisans in congress refuse to intervene.
Glad I could help …
As to your question … any particular Congress only sits for two years, then the voters weigh in … if We the People send the same congressmen back who refuse to impeach, then the President gets away with whatever (s)he is up to … call it the tyranny of the majority …
It doesn’t seem to be all that difficult to impeach the President … just twenty years ago our President was impeached for arguably trivial reasons …
Recall that Ford gave Nixon a pardon after he resigned. The implication being that of course he could be prosecuted for crimes committed in office. (I assume it was easier than asking the FBI to drop the investigation)
If you can recall, in 1973 one day Nixon threatened to blow up the world, and the accusation was that he was playing geopolitics to distract from Watergate - although there were logical reasons for his actions. So yes, the first priority with a “misbehaving” president would be to separate them from the levers of power, hence impeachment. (Not sure what the legality or ramifications of a president issuing himself a pardon, since it hasn’t been done yet.)
It usually takes a minimum of a year or two for any serious crime to get to a court case, so there would be plenty of time after impeachment to proceed with any criminal process. Ford’s logic was that the country had been torn apart by the whole Watergate mess, and it was time to put it behind them and look to the future.
Given some of Trump’s own comments, I believe he could end up in a Cosby like situation (ie. prosecution many years after alleged incident), which is being prosecuted by an elected DA. I don’t think the guv has any say in it.
We discussed the issue in a thread a few weeks back. (Funny how the issue seems to have come up a lot this year.) What happens if a president commits a major crime?
The general agreement was that presidents do not have any special legal immunity. They can be arrested, charged with a crime, and put on trial just like any other person.
But a sitting president being put on trial for a personal crime would be a problem for two reasons. First, a president has a lot of duties he must perform and he would be unable to adequately do them while he was distracted by the trial. And second, as a person he would be unable to adequately handle his defense while he was distracted by the duties of his office.
My theory was that this would become a 25th Amendment issue. A person who is being tried for a major crime is unable to simultaneously handle the duties of the presidency. So the President would have to temporarily step down from office (or be told to step down) until the trial is concluded. When the trial is finished, he can resume his presidential duties if he is acquitted. And if he’s convicted, he could be impeached and permanently removed from office.
It’s never been definitively answered, but the prevailing opinion is no. In 2000, the Department of Justice came to the conclusion that it was not possible for the sitting president to be tried for a federal crime, and referenced a 1973 memo coming to the same conclusion.
This would also raise serious constitutional issues. By ratifying the Constitution, the states made a binding agreement to vest the federal executive powers in one individual person. It would be hard to honor that by physically seizing and imprisoning that person.
Who precisely would have a say in it depends on the state, but I rather doubt that any state official would be bold enough to prosecute a sitting President. Years later, after he’s already left office one way or another, maybe.
EDIT:
The states vested federal executive powers in one particular person. He has no role whatsoever in the executive of a state. And even in a state prison, he would still hold all of his federal executive power, though the Cabinet might decide that being in prison renders him incapable of executing the duties of his office.
The point is that it’s probably not proper for one particular state to impose a disability on the president like that. Each state has made a binding compact with the other 49 to let the question of who is president be resolved centrally. They cast their electoral votes and then it’s out of their hands. Again, there is no definitive answer, but I think it would be foolish for a state to even try that.
And a state which imprisoned the President wouldn’t be changing the decision of who’s President. As I said, he would still be President even while sitting in that cell, and could still use his power as President to make matters very uncomfortable for the state that imprisoned him.
I don’t pretend to be some sort of con-law expert but it seems to me that the purpose of the Constitution’s language on removing the president is that it provides a mechanism for the government to peacefully remove a president embroiled in a legitimate and substantial legal controversy. Impeachment itself is a political process, not a legal one. But I don’t see how that fact would necessarily protect a president from his own administrative agencies making an evidence-based indictment against him.
Lord Feldon, yes, I had read about the 2000 memo previously (recently) and it does seem to make a pretty strong and compelling argument against bringing indictments against a president. However, as you say, it’s just an opinion and it could be an opinion that is based on the historical context. The Constitutional mechanisms were successful in removing a president that had obviously run afoul of the law; however, that was at a different time, with different people, and a different state of affairs. We now have a hyper-partisan congress, with hyper-partisan and well-funded special interests that have corrupted the government and this sort of question now, in today’s context, has to be taken seriously when asked: What happens when a sitting president, who is constitutionally required to faithfully execute the law, intentionally interferes with the law, and what happens when Congress, which is constitutionally required to check an Executive’s abuses of power, fails to?
Ford was correct. In addition to Watergate, the country had been through ten years of a divisive war. The government was already gearing up to pour a lot of money into the Bicentennial as a way of restoring patriotism and bringing people together again. The last thing the US needed was Nixon being tried in the middle of it.
If he were clumsy about it, sure. But there are plenty of ways to precisely untarget something. Like, if it’s Washington State that does it, the President could direct the Department of Defense to stop buying Boeing planes.
Or, of course, the President could just do things that the Supreme Court would be likely to find unconstitutional. Even if they’re overturned eventually, they’d still be rough on the offending state in the short term. And a President would be unlikely to end up in this situation to begin with unless he were the sort to push boundaries.
True. But whether sitting or standing down, the implication was that Nixon was liable for prosecution. Based on the sequence of events, he likely would have been impeached fairly shortly if he stayed sitting, so before any court charges; but he could also be prosecuted. Hence, stand up, resign, and skip town.
Seriously - I assume any prosecution for a president would happen after impeachment. If the “crime” or crime were not serious enough to result in impeachment, I have trouble imagining a court case getting past the preliminary hearing.
As I understood the situation, Clinton’s impeachment attempt was a failure of imagination. Ken Starr presented Clinton with a list of activities that defined “sexual relations” and for some reason - Ken Starr’s lack of imagination, or lack of adventurous partner - oral sex upon his person and nothing more was not part of the list, so Bill could weasily swear he “did not have sexual relations” with that woman.
And that’s how I would see the OP situation. We would not be talking about a president standing over a dead body with a smoking gun; if impeachment failed, it would be because the alleged offense failed to rise to the level where 2/3 of the senate agree this was a real violation of the law. For removal, somewhere between a third and a half of the president’s own party has to feel that the actions amount to a violation serious enough for him to be removed. If impeachment fails, then it means there’s enough debate about the charges that the answer to the OP is basically - the president could be charged, possibly dragged into court for a trial, but very likely not convicted. And the simple rule of thumb for prosecution is - if you can’t be relatively sure of a conviction, then prosecution is political grand-standing; that could backfire.
