As we enter the 13th month of special counsel Robert Mueller’s investigation of Russian involvement in the 2016 presidential election, there has been a great deal of chatter in recent weeks about whether a sitting president can be indicted.
That is, can criminal charges be brought against a sitting president? Donald Trump’s legal team, most prominently Rudy Giuliani, all say no.
There may be strong public policy reasons not to indict a sitting president. The special counsel’s mandate may not permit it.
But what of the Constitution? Does the Constitution allow it?
Political commentators have tended to focus on the nature of the president’s office and the structure of government.
The actual words of the Constitution have barely been mentioned. Let’s go to the source, the actual words of the Constitution.
A constitutional discussion must begin with the Impeachment Clause: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office or 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.”
The clause mentions both impeachment and indictment.
It does not explicitly state that impeachment must come first, but the clause does discuss impeachment before it discusses indictment.
By discussing impeachment first, did the constitutional framers intend to preclude indictment prior to the impeachment process? Or, having limited the penalties that can be imposed through the impeachment process, does the clause simply make clear that the official subject to impeachment also remains subject to the criminal process?
Other provisions of the Constitution and past practice suggest the latter.
The impeachment power extends beyond the president to include the vice president and “all civil Officers of the United States.”
The House of Representatives has issued Articles of Impeachment – the first step in the process – at least 19 times, including against two U.S. Presidents: Andrew Johnson and Bill Clinton. Other instances include one U.S. Senator, a Cabinet member, and 15 federal judges.
In at least three of those cases — the 1986 impeachment of U.S. District Judge Harry Claiborne of Nevada, the 1989 impeachment of U.S. District Judge Walter Nixon of Mississippi, and the 2009 impeachment of U.S. District Judge Samuel Kent of Texas — the judges remained on the bench following criminal convictions and were only impeached after refusing to leave office.
There are two recent prominent cases in which federal criminal charges – indictments – were brought against sitting federal officers without impeachment proceedings ever having occurred.
In 2014, Staten Island Congressman Michael Grimm was indicted on multiple felony counts, pleading guilty to one. He later resigned his office. In 2015, Sen. Bob Menendez was indicted. His trial ended in a mistrial. He remains in office.
The most well known example, though, is Spiro Agnew, vice president under President Richard Nixon.
Agnew went so far as to file a motion in court arguing that a sitting vice president could not be indicted.
Ultimately, Agnew pleaded no contest to a felony charge of tax evasion and resigned his office the same day.
The text of the Constitution makes only one special accommodation for the president regarding impeachment: “[T]he Chief Justice shall preside” at his impeachment trial.
There is no other reference to the president regarding impeachment or indictment. This is all the more notable because the text of the Constitution does provide a limited immunity for members of Congress.
“They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.”
In other words, the framers of the Constitution did not want members of Congress hauled off in cuffs while in session.
The text of the Constitution does not include similar protection for a sitting president.
If a president cannot face criminal charges, that conclusion must be based upon something other than the words of the Constitution.
Hermes Fernandez is senior partner, Bond at Schoeneck & King, PLLC, in Albany. He is a former assistant counsel to Gov. Mario Cuomo; former attorney, Civil Division, U.S. Justice Department, Washington, D.C. (Main Justice); and past vice president of the New York State Bar Association.