Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). My threads are here: terikanefield-blog.com/ My author website is here: www.terikanefield.com/ Oct. 08, 2018 5 min read

(Thread) Can a sitting president be indicted?

Spoiler: Most likely yes—even with Kavanaugh’s vote.

But it’s not a game-changing issue.

(It's complicated—so a long thread)

Indictment means there's basis for a criminal charge;
Guilt is found at trial.
 https://www.law.cornell.edu/wex/indictment 

1/ The reason some of you are worried about whether a sitting president can be indicted is because you’re worried Trump will get away with his crimes, or be placed above the law.

The Constitution outlines a procedure for when a president is suspected of criminal behavior:

2/ The House investigates, and if there’s basis, impeaches the president. (Impeach is like indict) Impeachment requires a majority of the house.

Impeachment is followed by a Senate trial. If the Senators believe the president is guilty, they remove him from office with 2/3 vote.

3/ The problem we have now is that Congress is shielding the president.

A former president can, of course, be indicted and brought into a regular criminal court.

This works: Impeach, remove, indict. But Congress isn’t doing its job.

So we really have two separate issues:

4/

1. Can a sitting president be indicted?
2. Can a sitting president be tried for crimes in a regular court (i.e. not in the Senate) while serving as president?

Scholars differ on the issue of whether a sitting president be put on trial:
 https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2573&context=facpub 

5/ Some say yes, some no.

Dellinger (former head of the DOJ Office of the Counsel & acting solicitor general) argues that a criminal trial interferes with the duties of the president; thus a criminal trial must wait until the president is out of office.
 https://www.nytimes.com/2018/03/26/opinion/indict-president-trial.html 

6/ Notice the issue isn’t whether the president is above the law.

The issue is whether a trial must wait until the president is out of office.

And again, this is an issue only if Congress shields instead of removes a criminal president so he CAN be put on trial.

7/ Because we’re discussing indictment, let’s assume a criminal trial has to wait until a president leaves office.

(I tend to think a trial should wait. I think putting a sitting president on trial would be a media circus & disaster. Good luck finding an impartial jury.)

8/ Q: Can a sitting president be indicted, or does indictment, also, have to wait?

There's nothing in the constitution that says a sitting president can’t be indicted. The arguments in favor of postponing a trial don’t apply to an indictment.

9/ Moreover there good policy reasons in favor of indict a sitting president, if warranted: It lets the public know that a prosecutor has found a basis for a criminal charge.
With a properly functioning Congress, this would spur a genuine investigation + impeachment & removal.

10/ Special prosecutor Jaworski believed he could indict Nixon—but he didn’t because Congress was moving toward impeachment.

Instead he named Nixon as an “unindicted co-conspirator” in someone else’s indictment—a practice now discouraged in the DOJ rules.  https://www.justsecurity.org/44705/naming-president-unindicted-co-conspirator/ 

11/ Another reason to indict a sitting president is if a statute of limitations (SOL) is running.
 https://www.law.cornell.edu/wex/statute_of_limitations 

For example, if the SOL expires while he’s in office, he’d be immune from accountability for that crime.

12/ Dellinger suggests that in such a case, the president should be asked to waive the SOL.  https://www.nytimes.com/2018/03/26/opinion/indict-president-trial.html 

“What if,” you ask, “the president refuses to waive the SOL?”

13/ In that case, the prosecutor has to file the indictment or risk the SOL expiring.

“What if,” you ask, “the president challenges the indictment in court and it goes all the way to the conservative majority SCOTUS?"

14/ People worry that SCOTUS will declare the indictment unconstitutional, thereby immunizing Trump from crimes with SOLs expiring while he’s in office.

Remember, this is only an issue for crimes with expiring SOLs; for others he can be indicted later.

15/ People are worried about the Court with Kavanaugh on it because of things he has said.

In 1998 he wrote, “I tend to think [prosecution] has to be Congress”—basically saying while a president is in office, it’s Congress’s responsibility to prosecute.

 https://www.politico.com/blogs/under-the-radar/2018/07/11/brett-kavanaugh-president-indicted-709641 

16/ Also in 1998, he wrote:

“The indictment and trial of a sitting president would cripple the federal government . . .”  https://www.politico.com/f/?id=00000164-89c2-d96d-a564-99c358430000 

Notice he was talking about indictment AND trial. He conflated the two issues.

17/ Kav's article implied there was nothing in the constitution preventing a sitting president from being indicted. (And there isn’t).

If Trump (hypothetically) refused to waive SOL, and the case came to SCOTUS, the issue would be a narrow one:

18/ Can a sitting president avoid being held accountable for certain crimes (those with expiring SOLs) by sitting in the White House until the SOL expires?

Remember that when the SCOTUS makes a ruling, it isn’t just for this case; the ruling becomes precedent for future cases.

19/ They can’t say: This applies to Trump but not to future Democratic presidents.

They also can’t reach beyond the facts of the case before them to make blanket rules:
 http://law2.umkc.edu/faculty/projects/ftrials/conlaw/caseorcontroversy.htm 

Remember also that 5 justices are needed for a ruling.

20/ Personally I can’t see 5 justices ruling that a sitting president can’t be indicted when he can (for most crimes) be indicted later.

There's nothing in the Constitution to support it.

Moreover, they’d only be immunizing certain crimes (expiring SOLs) so why do it?

21/ I also personally believe that Kav’s performance at the hearing should have been disqualifying.

But I don’t believe that having a bad judge (or 2 or 3) threatens the legitimacy of the Supreme Court, or that we can assume the conservative bloc will now become unhinged.

22/The court was conservative before. Kav replaced a conservative.

We want to maintain the legitimacy of the court because we want it around when Democrats have the power to appoint justices.

Remember a goal of Putin’s cyber war is to make us to lose faith in our institutions.

23/ The moment enough citizens of a democratic republic lose faith, the entire system falls apart.

I would therefore caution against prematurely concluding that Kav will undermine the entire credibility of the Court.

24/ Moreover Mueller can always file a sealed indictment & hold the trial when Trump leaves office.

Because Congress can always decide to do its job, and because he can be tried when he leaves office, the Court can't immunize him for ALL his crimes.

25/ So the real concern is Congress.

There are genuine concerns about Kav. He embraces a judicial philosophy that justifies turning back the clock on 50 years of progress —women’s and minority rights, voters rights, etc.
 https://medium.com/@SSalvaticoS/the-forgotten-reason-to-vote-no-5d674129ece8 

26/ Moreover, McConnell’s shenanigans giving us Kavanaugh instead of Merrick Garland strengthens the extreme right wing bloc of the Court.
 https://balkin.blogspot.com/2018/10/the-vicious-entrenchment-circle.html 

A big enough Democratic majority will (in time) right the problems.


You can follow @Teri_Kanefield.



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