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.
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.
Right. Take, for example, the West Virginia Constitution:
Now compare that to the United States Constitution:
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.
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.
Interestingly, Agnew also made the argument that he could not be indicted while in office. From Wikipedia.
What happened next 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 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…
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 …]
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?
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)
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.
Thanks for the explanation.
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.
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
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.
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?
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.