Why does the DOJ get to decide whether indicting a sitting president is constitutional?

I’m more asking a question here rather than making an argument but I’ll frame it as an argument anyway because I’m annoyed.

Why is it that the question of whether a sitting president can be indicted is being answered most vociferously by the DOJ? Correct me if I’m wrong (and that is a distinct possibility), but it seems like the executive branch is making a judicial and/or legistlative decision here. I can’t see how someone can possibly read that a sitting president can’t be indicted from this:

There is zero indication that there is some sort of temporal order here. One would think that if you were going to make such an extraordinary exception for the president, one would make it abundantly clear. To me the “shall not extend further than removal from office” simply means that an impeachment is not a criminal trial.

One of the DOJ sentencing memos indicates that indicting a sitting president “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Are they making what seems to me a legistlative call here or is there something in the constitution that they can point to where they can say “I’m not wasting my time prosecuting this when the SCOTUS will eventually rule against me?”
Now I understand that the DOJ has to place their priorities on legal battles they believe they will eventually win, but the whole thing, at least as I read it, seems like they are acting outside their branch. The fact that the DOJ works for the president makes me further suspect of this “guidance.” What am I missing here?

The operative word there is “convicted,” i.e., removed from office.

Prosecutors have broad discretion about charging crimes. Federal prosecutors are part of DOJ. DOJ issues guidance to keep federal prosecutors behaving in a relatively predictable fashion nationwide. An example of that would be DOJ policy that effectively ignores certain violations of federal laws about marijuana.

There’s no clear constitutional guidance, judicial precedent, or legislation directly addressing the relatively rare case of potentially indicting the President. That leaves DOJ and prosecutorial discretion.

“The Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

That looks to me exactly like a temporal order. First the Party must be convicted then subject to indictment.

And if the DoJ isn’t the place for interpretations of Constitutional law, who is?

Obviously, the DoJ is often politicized. But who isn’t? The Supreme Court? Yet, if a ruling were needed that’s who would give it.

The Constitution was not written with the notion of politicized factions. It can’t contain answers to questions about issues that would only emerge in its future. Somebody has to come up with interim answers, which may be settled judicially but the courts can’t spend time on every single one of them. There must be tens of thousands by now.

The DoJ’s interpretation will not control other actors, like state attorney generals, should they choose to indict. It’s not law. It’s still part of their job.

There are no words in that sentence approximating “first” and “then.” The only reason the sentence assumes an initial conviction is because the phrase before it already indicates an impeachment has taken place.

That is pretty much the exact job description of the judicial branch.

Isn’t there also a legal theory that a President is immune from prosecution for acts while in office? If so then the impeachment/conviction would trump* that immunity. The real question I think is if an office can be impeached for acts before entering into service and could they be indicted for those acts without impeachment.

*No pun intended.

Because they have to make a deicsion about whether to indict the President; making indictment decisions is one of their functions. And you can’t make such a decision without taking an explicit or implicit position on whether it is constitutionally permissible to do so.

And exactly the same is true for any executive agency discharging any executive function. Mostly there is no question about the constitutionality of the function but, if there is, they have to take a position on it.

But note that they get the first word on this, not the last. If they determine that it is constitutionally permissible to indict the president, the president (or any other person with standing) can of course challenge that determination in the courts.

It would be hard for the agency responsible for seeking indictments to NOT have opinions on which indictments it may and may not seek. And some of those opinions will be untested, because…

The judicial branch doesn’t answer (and is forbidden from answering) hypothetical questions.

The order of events is often a part of the definition of laws and statutes.

True, but only to a point. If every law had to be run by the courts before it were written or applied by a prosecutor, then half the country would be employed by the courts. Disagreements about interpretations of laws do get to the courts, but the vast majority are interpreted at lower levels, by district attorneys, attorney generals, and the DoJ. The courts are a last resort. This is the way the system works and always has worked.

Actually, the role of the Judiciary is to do as little as reasonably possible, and to defer to the Legislative to the maximum extent practical.

But that went south when SCOTUS hijacked the Constitution in Marbury v. Madison, and the nation has suffered for it ever since.

ah yes you have had your self outside of your ideal since over 200 years, terrible the performance, obviously you are a backwater nation with no rule of law… two centuries of error

The question is only hypothetical because it hasnt been put before the court yet. The issue of whether a sitting president can be indicted is sufficiently unclear that it should be sent to the judicial branch and not be automatically held back by the executive branch - the head of which coincidentally benefits from the issue not being sent to the courts.

The only way to do that is to eliminate the unitary executive - and the only way to do that is a Constitutional amendment.

But not a conviction.

In order for “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” to apply, there has to be a conviction. Otherwise it is as if those words don’t exist.

Prosecutorial discretion doesn’t mean that we do what Rachel Maddow would like.

Also the president can fire all the executives at DOJ if he likes and unless he gets impeached or they pass a law, there is nothing to stop him.

Yep. But they do not get to decide who to charge with crimes.

Seems like a reasonable policy to me. If you want your president in jail that badly, the onus is on Congress to go through the impeachment process and remove him from office first, so he no longer has authority over the Department of Justice.

What you are describing is the textbook definition of hypothetical. Courts exist in our system of government to resolve cases and controversies, where a party has been harmed and seeks justice. Courts are not allowed to rove around town, searching for ambiguities in the law that haven’t yet resulted in someone being harmed in some way.

“This fall on the CW… Laws of Motion. Where there is no justice, there will be jurisprudence!”

The short answer is “they don’t”. The Supreme Court decides that.

If the DOJ thinks they can’t indict, that’s what impeachment is for. if the Senate decides to remove a President from office, then he or she isn’t a sitting President anymore. If the DOJ decides whatever the President was removed from office for doesn’t rise to the level of indictment, tough noogies. See if you can find a state who will indict for some state-level offense. If the DOJ won’t indict, and no state will indict, then vote for a President or a state AG who will. If you can’t elect such a President or such an AG, amend the constitution. If you can’t do that, get used to living in a Constitutional republic.


They don’t say he can’t be indicted as a matter of constitutional law, but that they themselves won’t do it as a matter of internal policy.

BTW the President’s authority over DOJ is limited to hiring and firing its leadership. He *cannot *order them to prosecute or not prosecute anything or anybody.

There is a thought out there, wrong but a thought, that the impeachment process is actually the criminal justice process for Presidents. The Constitution says the opposite, in black letters, though. We heard a lot of that from the people trying to justify impeaching Bill Clinton.

DOJ actually works for Us The People, not the President, although its leadership is susceptible to bullying by him.

Huh? How does your assertion square with the first sentence of Article II?