# Why does the DOJ get to decide whether indicting a sitting president is constitutional? **URL:** \ **Category:** Great Debates\ **Created:** [December 13, 2018, 12:43am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027 "2018-12-13T00:43:23Z")\ **Posts on this page:** 14\ **Page:** 3
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [December 14, 2018, 12:14pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/41 "2018-12-14T12:14:29Z")
> [@Cheesesteak](#): > > Is there a similar provision on the State level? As in, a Governor must be removed from office before indicting him on State level crimes, since he could also order people to not seek indictments? That’s the thing, though. In many (probably most) states, the governor could not in fact order anyone not to seek indictments because the attorney general (statewide office) and the district attorneys (local prosecutors) are independently elected and do not answer to the governor. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 14, 2018, 12:27pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/42 "2018-12-14T12:27:02Z")
> [@Cheesesteak](#): > > By your reading the word nevertheless doesn’t exist. > > Nevertheless means “despite what has just been said”. How does that track? > > “but the Party convicted shall nevertheless be liable and subject to Indictment” > > becomes > > but the Party convicted shall, despite being convicted, be liable and subject to Indictment > > Nothing in that second reading suggests that a President must be Impeached before being Indicted, it actually is a reminder that you can still Indict even though he’s been Impeached, that his punishment need not end at removal from office. Also keep in mind that other officials of the government are subject to impeachment and they can clearly be indicted while in office. See, e.g. Spiro Agnew. The question of whether a sitting president can be indicted is different in form because of the unitary executive nature of the Constitution. As noted above, impeachment and removal from office are almost necessary prerequisites to prosecuting a president, otherwise the president would be prosecuting himself. What if he is convicted and sentenced to prison? Could the country function with the president in prison? And through his pardon power, he controls the keys to his jail cell. He could order prison regulations (an executive function) that specify that any president in federal custody be housed at the White House and be issued day passes. He could commute his sentence to time served. I think that this clause discussed above does not carry as much water as some are suggesting. I believe that it simply means that even though you have been impeached and convicted, you can “nevertheless” be subject to the criminal law. IOW, you cannot argue double jeopardy or some other theory that for crimes committed as an officer of the United States that impeachment and removal was meant to be your sole punishment. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 14, 2018, 12:47pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/43 "2018-12-14T12:47:19Z")
> [@doreen](#): > > That’s the thing, though. In many (probably most) states, the governor could not in fact order anyone not to seek indictments because the attorney general (statewide office) and the district attorneys (local prosecutors) are independently elected and do not answer to the governor. Right. Take, for example, the West Virginia Constitution: > [@7-1. Executive department.](#): > > ``` > The executive department shall consist of a governor, secretary of state, auditor, treasurer, commissioner of agriculture and attorney general, who shall be ex officio reporter of the court of appeals. Their terms of office shall be four years, and shall commence on the first Monday after the second Wednesday of January next after their election. They shall reside at the seat of government during their terms of office, keep there the public records, books and papers pertaining to their respective offices, and shall perform such duties as may be prescribed by law. > > ``` Now compare that to the United States Constitution: > [@Article 2](#): > > 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows The federal constitution is clear. ALL executive power is vested in the President. Contrary to some musings, the AG, the FBI, the CIA, U.S. Attorneys, BOP officials, etc. all operate under the direction of the President. Certain conventions have arisen over the years in which the President delegates authority to those subordinates and typically does not get involved in decisions about who to prosecute or where to direct most law enforcement resources. None of this means that a particular President is not so empowered if he chose to do so. So in any indictment of a sitting president, he would effectively be prosecuting himself, which he would not be inclined to do. In order for it to happen, there would have to be someone else exercising executive functions contrary to the wishes of the president, which would be unconstitutional. Plus, it sets up an impeachment trap: by refusing to prosecute himself, the president is obstructing justice and should therefore be impeached, which simply gets us to where my argument begins. And that is, if there is evidence that the President has committed a crime, you impeach and convict him. Then the new President uses his executive powers to prosecute the former President. It is a much cleaner process that does not raise all of these constitutional concerns. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [December 14, 2018, 5:04pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/44 "2018-12-14T17:04:31Z")
I find the idea that the DOJ is separate from the President not to exist in practice. They are part of the executive, led by the Attorney General, and the President basically has full control over that office, as we see with Whitaker. So there is nothing to prevent the President from being able to stop prosecution on himself. Furthermore, he has pardon powers, meaning he can simply pardon himself to stop the prosecution. The Founding Fathers didn’t count on a majority of Congress being okay with the President doing these things. They didn’t count on party loyalty beating out loyalty to country. They underestimated the power of the president, assuming Congress would be the most powerful entity. There is, of course, no actual valid argument for this. Nothing in the Constitution says the President cannot be indicted, and there is no reason to believe that the Founding Fathers would have wanted their king replacement to be above the law. That was exactly what they were trying to avoid. There is no reason that we as a country would want the President to be above the law. The argument about the trial keeping the President from their duties can be beated with two words: Vice President. If the President can’t perform his duties for any reason, the VP can fill in. And, since the 12th Amendment, the VP is hand picked by the President and so will not undermine the President’s wishes. Yeah, I’m being a bit forceful about this. It is what I fervently believe. The whole idea that a sitting president can’t be indicted is just utterly anti-democratic. It’s based on authoritarian principles. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 14, 2018, 5:30pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/45 "2018-12-14T17:30:50Z")
> [@UltraVires](#): > > Also keep in mind that other officials of the government are subject to impeachment and they can clearly be indicted while in office. See, e.g. Spiro Agnew. Interestingly, Agnew also made the argument that he could not be indicted while in office. From [Wikipedia](https://en.wikipedia.org/wiki/Spiro_Agnew#Criminal_investigation_and_resignation). > [@](#): > > Under increasing pressure to resign, Agnew took the position that a sitting vice president could not be indicted and met with Speaker of the House Carl Albert on September 25, asking for an investigation. He cited as precedent an 1826 House investigation of Vice President John C. Calhoun, who was alleged to have taken improper payments while a cabinet member. Albert, second in line to the presidency under Agnew, responded that it would be improper for the House to act in a matter before the courts.[172] Agnew also filed a motion to block any indictment on the grounds that he had been prejudiced by improper leaks from the Justice Department, and tried to rally public opinion, giving a speech before a friendly audience in Los Angeles asserting his innocence and attacking the prosecution.[173] Nevertheless, Agnew entered into negotiations for a plea bargain, and wrote in his memoirs that he did so because he was worn out from the extended crisis, to protect his family, and because he feared he could not get a fair trial.[174] He made his decision on October 5, and plea negotiations took place over the following days. On October 9, Agnew visited Nixon at the White House and informed the President of his impending resignation.[175] [What happened next](https://www.upi.com/Archives/1973/10/13/The-fall-of-Spiro-Agnew/5948130122572/) needs a lawyer to explain. > [@](#): > > The pieces of the negotiated accommodation fell into place tearlessly in courtroom No.3 on the fifth floor of the old post office building in downtown Baltimore. > > A Secret Service agent at each side, Agnew stood before Judge Walter E. Hoffman. > > “You know that you should not execute a waiver of indictment unless you do so freely and without promise of reservation?” > > “I do, your honor.” > > “What plea is entered on behalf of the defendant?” the judge asked one of Agnew’s three lawyers. > > “On behalf of the defendant, your honor, I enter a plea of nolo contendere.” > > “Is that your plea, Mr. Agnew?” > > “That is my plea, your honor.” > > “It is the full equivalent of a plea of guilty,” said the judge. That reads to me as if he pled without waiting for the actual indictment to occur. The [Congressional Quarterly in 1973](https://library.cqpress.com/cqalmanac/document.php?id=cqal73-867-26366-1225812) seems to confirm this: > [@](#): > > The court action rendered moot the litigation of two other issues raised by his case—the constitutional questions of whether a vice president could be indicted while in office and whether newsmen, claiming the protection of the First Amendment, were obliged to divulge their sources. [I got that cite off Google but when I hit the link it requires a sign-in. Agnew: Second Vice President in US History to Resign - CQ Almanac … [Login | Sage Publications](https://library.cqpress.com/cqalmanac/document.php?id=cqal73-867-26366)… Spiro T. Agnew Oct. 10, 1973, became the second vice president in history to … halt the inquiry on the grounds that a vice president could not be indicted while in …] ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [December 14, 2018, 5:45pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/46 "2018-12-14T17:45:01Z")
> [@doreen](#): > > That’s the thing, though. In many (probably most) states, the governor could not in fact order anyone not to seek indictments because the attorney general (statewide office) and the district attorneys (local prosecutors) are independently elected and do not answer to the governor. Point taken, though I think the question just pushes down to the state attorney general or local prosecutors. Whomever has the ‘buck stops here’ sign on their desk, must that person first be impeached and removed from office before any indictment is allowed to take place? Isn’t that the concept behind a special prosecutor, to have the freedom to investigate and prosecute without interference from his superiors? ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [December 14, 2018, 7:56pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/47 "2018-12-14T19:56:27Z")
> [@Cheesesteak](#): > > Point taken, though I think the question just pushes down to the state attorney general or local prosecutors. Whomever has the ‘buck stops here’ sign on their desk, must that person first be impeached and removed from office before any indictment is allowed to take place? I think the differences between state and federal on this issue make analogies impossible. There usually isn’t a single person/office with the authority to prosecute in state courts . For example, the NYS attorney general has the authority to prosecute government officials, including district attorneys, for illegal behavior occurring in the course of their public duties. And there’s no legal reason I am aware of that would prevent the appropriate DA from prosecuting the AG for similar behavior. ( political reasons are another story) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 16, 2018, 10:08pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/48 "2018-12-16T22:08:51Z")
> [@Exapno\_Mapcase](#): > > Interestingly, Agnew also made the argument that he could not be indicted while in office. From [Wikipedia](https://en.wikipedia.org/wiki/Spiro_Agnew#Criminal_investigation_and_resignation). > > [What happened next](https://www.upi.com/Archives/1973/10/13/The-fall-of-Spiro-Agnew/5948130122572/) needs a lawyer to explain. > > That reads to me as if he pled without waiting for the actual indictment to occur. > > The [Congressional Quarterly in 1973](https://library.cqpress.com/cqalmanac/document.php?id=cqal73-867-26366-1225812) seems to confirm this: > > [I got that cite off Google but when I hit the link it requires a sign-in. > > Agnew: Second Vice President in US History to Resign - CQ Almanac … > [Login | Sage Publications](https://library.cqpress.com/cqalmanac/document.php?id=cqal73-867-26366)… > > Spiro T. Agnew Oct. 10, 1973, became the second vice president in history to … halt the inquiry on the grounds that a vice president could not be indicted while in …] To your first point, yes he could argue it (anyone can argue anything), but it has little support, and very likely why he pled guilty. Further, as the VP has no executive power at all while he is still VP, none of the constitutional concerns discussed above are implicated. To your second point, I’m not sure what you exact question is, but I believe it is the difference between an indictment and an information. In the federal system (and in many state systems including mine) a person cannot be forced to stand trial for a felony unless the case is first presented to a grand jury and indicted. This was a protection by the founders so that regular citizens of the community would decide in the first instance if a person was liable to stand trial. Except in capital cases, a criminal defendant may waive the right to such a presentment to the grand jury if he/she reaches a plea deal with the prosecution. In which case there is no need for a grand jury and the case proceeds on an information. This is very common. This is what Agnew did. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 17, 2018, 12:48am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/49 "2018-12-17T00:48:12Z")
Thanks for the explanation. ---
**Author:** ![KidCharlemagne](https://avatars.discourse-cdn.com/v4/letter/k/ed8c4c/32.png) [@KidCharlemagne](https://boards.straightdope.com/u/KidCharlemagne)\ **Post date:** [December 23, 2018, 6:14pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/50 "2018-12-23T18:14:44Z")
> [@Ravenman](#): > > But it’s hypothetical because there’s nobody who has been harmed by the DoJ’s interpretation to give standing to a controversy that courts would legally be allowed to review. > > There’s no mechanism in the Constitution for one party to ask a court to resolve an ambiguity in the law when the ambiguity hasn’t resulted in harm to someone. So, to use a different example, let’s say decades ago, the ATF looked at the Second Amendment and said to itself, “Boy, that’s some strange wording!” The ATF can’t just go to the courts and ask them to resolve it. The courts will not entertain such a request. > > Now, if someone tried to buy a gun, but was denied, and that person said to himself, “Hey, the Second Amendmnet is hard to read, but I think I have a constitutional right to buy a gun – let’s get the courts involved here!” then there’s a controversy that courts are allowed to consider and rule upon. If Trump broke campaign finance laws, which seems pretty clear from Cohen’s sentencing memo, hasn’t the US been potentially harmed? I’m not expecting someone to just bring a hypothetical case to the courts; but I’m also not expecting the DOJ to hold cases back because of an incredible tenuous interpretation of the Constitution. ---
**Author:** ![KidCharlemagne](https://avatars.discourse-cdn.com/v4/letter/k/ed8c4c/32.png) [@KidCharlemagne](https://boards.straightdope.com/u/KidCharlemagne)\ **Post date:** [December 23, 2018, 6:27pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/51 "2018-12-23T18:27:26Z")
> [@Exapno\_Mapcase](#): > > Prosecutors decide who to indict and when to indict them. If they don’t want to indict nobody can make them. That’s a safeguard built into the system. > > Remember that the DoJ’s opinion is internal policy only. It is precisely their job to look at the legality of such issues. > > You should read [Is Mueller Bound by OLC’s Memos on Presidential Immunity?](https://www.lawfareblog.com/mueller-bound-olcs-memos-presidential-immunity) from 2017. Crespo examines the history of this question, which is far older than Mueller. > > The article shows how nuanced an issue this is. We as a nation absolutely do not want the DoJ to blindly disrupt the entire functioning of the government for months on end just so that the courts can sometime later make a ruling. You may wish for them to do so, but I think that would be a huge mistake. > > Impeachment is the proper route to proceed, as the Constitution explicitly says despite your doubts. The ex-President can then be indicted without requiring any constitutional crisis. First you say the issue is incredibly nuanced and then you say the Constitution explicitly says impeachment is required first. It’s precisely because the situation is so nuanced and so important that it should be decided by the courts and not by some unelected assistant DA. Regarding it being explicit, if you think _“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.”_ explicitly states that a sitting president can’t be indicted then I’m not sure you’re following the dictionary definition of explicit ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [December 23, 2018, 6:58pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/52 "2018-12-23T18:58:00Z")
> [@Cheesesteak](#): > > but the Party convicted shall, despite being convicted, be liable and subject to Indictment > > Nothing in that second reading suggests that a President must be Impeached before being Indicted, it actually is a reminder that you can still Indict even though he’s been Impeached, that his punishment need not end at removal from office. I read it as “but the Party convicted shall, despite the impeachment itself not being a criminal procedure, still be allowed to be tried criminally for the things he was impeached for” Having the word convicted there doesn’t explicitly state one must be impeached and convicted before indicted legally, but there doesn’t appear to be any other logical reason for it to be there. If you could indict before or during impeachment, the sentence would read “the Party shall” or “the Party impeached shall”. It is kind of a moot point though. Even were it unabashedly clear as day, if enough people want to argue about it, ultimately the court is going to have to weigh in at some point. And matters of practicality suggest that even if you don’t have to impeach and convict before indicting, it is just such a much less problematic way to deal with the situation that you should do it anyway. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [December 24, 2018, 12:26am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/53 "2018-12-24T00:26:21Z")
I think the word “convicted” in the cited passage, rather than indicating a determination that a sitting president can’t or mustn’t be indicted, indicates the failure of the Framers to imagine a circumstance wherein a sitting president might be indicted without being impeached. After all, are not the House and the Senate composed of men of quality? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 24, 2018, 1:05am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/54 "2018-12-24T01:05:42Z")
Amazingly, this is one point where I agree with **UltraVires**. The President single-handedly holds the executive power of the United States, and therefore cannot be indicted without his permission (though I suppose that it would be theoretically possible for him to give permission, it’s hard to imagine the circumstances and mindset that would lead to that). And even if that’s not perfectly clear-cut from the Constitution, even if he was indicted or even convicted, he could still just pardon himself. Under our system, the remedy for a criminal President is impeachment (which explicitly supercedes the pardon power). Now, I might argue that our system is inadequate, and doesn’t work like it’s supposed to, but unfortunately, it is our system. On the other hand, I’m not aware of any legal theory under which the President is immune to indictment or prosecution under state law. [Previous page](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027.md?page=2)