President Trump’s lawyer argued in a federal court on Wednesday morning that he could not be prosecuted for a crime even if he shot someone in broad daylight on Fifth Avenue.
Attorneys for Trump made the argument during an appeals court case against Manhattan District Attorney Cy Vance, who is seeking Trump’s tax returns as part of an ongoing criminal investigation.
The doctrine that a sitting president is immune from criminal indictment or prosecution is not new. The Department of Justice has a longstanding policy, outlined by the Office of Legal Counsel, that a sitting president cannot be charged with a federal crime.
Special counsel Robert Mueller famously invoked this policy (to be clear, it’s a policy, not law) when he summarized the results of his Russia investigation. “The special counsel’s office is part of the Department of Justice,” Mueller said, “and by regulation it was bound by that department policy. Charging the president with a crime was, therefore, not an option we could consider.”
Back in May, after the Mueller report was released, I reached out to 16 legal experts and asked if this policy is constitutional. More to the point, I asked if the president of the United States is, in fact, above the law?
Their full responses, edited for clarity and length, are below.
Here is Trump's lawyer, William Consovoy, telling Judge Denny Chin that if Trump were to shoot someone on fifth avenue, he could not be criminally investigated while in office.— Erick Fernandez (@ErickFernandez) October 23, 2019
Very normal argument. pic.twitter.com/xlDBwmCUnR
Jens David Ohlin, law professor, Cornell University
Mueller is faithfully following DOJ policy, but the DOJ policy is just plain wrong. Mueller says that a president can be investigated but neither indicted nor accused. And his argument for not accusing him of a crime is that it would be “unfair” to accuse someone who does not have a courtroom to protest his or her innocence.
But that is completely absurd: The president doesn’t have a courtroom to vindicate his innocence only because the DOJ has decided that his office makes him immune from indictment in the first place. It’s a piece of circular reasoning that removes the president from the scope of generally applicable criminal laws.
If the president were to commit a violent federal crime, it would be absurd for the DOJ to remain silent on the matter simply because the president couldn’t be charged.
Ciara Torres-Spelliscy, law professor, Stetson University
As the redacted Mueller report made clear, the special counsel’s office did not exonerate President Trump on the issue of obstruction of justice, but the office could not indict a sitting president under controlling DOJ rules.
To be clear, there is nothing in the Constitution that states that a sitting president cannot be indicted. Language from the Clinton v. Jones and US v. Nixon cases indicates that the president is not above the law. If federal prosecutors refuse to hold the president to the same legal standard as any other citizen, state attorneys general could certainly charge a president with a state crime with sufficient evidence.
Paul Butler, law professor, Georgetown University
The question is irrelevant, in terms of the reason anyone would care at this moment in history. President Trump will never be indicted while he is in office. Any federal prosecutor is bound by the Department of Justice guidelines. So it ain’t gonna happen.
Even if, to use Trump’s own example, he shot someone on Fifth Avenue, the only remedy would be for the president to be impeached by the House, convicted and removed from office by the Senate, and only then prosecuted in criminal court.
Mueller made clear [in May] that the ball is in Congress’s court. If there is no impeachment, that’s a political crisis, not a constitutional one.
Joshua Dressler, law professor, Ohio State University
Can the president be indicted? The answer to the question is and will remain unknown unless and until the DOJ interpretation of the Constitution (namely, that a sitting president cannot be indicted) is tested in the courts.
As the DOJ interpretation has not varied regardless of the political party of the president, it is reasonable for us to move past that question. The question(s) now are: 1) Will the president be impeached and convicted of impeachable offenses? And 2) will the president, after he leaving office, be indicted for any crimes he has committed or will commit in the future?
Keith Whittington, politics professor, Princeton University
The current view of the DOJ, based on repeated opinions prepared by the OLC, is that a sitting president cannot be indicted, let alone prosecuted. Under the old independent counsel statute, it was possible for an independent counsel (like Kenneth Starr) to come to a different conclusion and seek an indictment.
For a special counsel appointed within the Justice Department itself, as Mueller was, an indictment is off the table unless and until the attorney general or the OLC reaches a new conclusion on the constitutional issues.
Since the courts would not have an opportunity to weigh in on this question until a legal proceeding is initiated, it is unlikely that we will get a judicial opinion on this question until the Justice Department changes its mind.
Of course, even if the attorney general came to the conclusion that a sitting president could be indicted as a constitutional matter, there would still be the possibility of a president, as the chief executive, simply directing Justice Department attorneys not to seek such an indictment or to remove any attorney who attempted to seek one.
It is conceivable that some state prosecutor could attempt to seek an indictment of a sitting president, and that might generate a judicial opinion, but the constitutional problems with such a move are even more severe than the prospect of a federal indictment.
Miriam Baer, law professor, Brooklyn Law School
I don’t think Mueller’s statement plows any new legal ground regarding obstruction or the ability to indict a sitting president. His statement references the report’s conclusion that, given the DOJ’s policy on presidential indictments, the president could not be charged with a crime, even under seal.
Mueller’s statement also alludes to an impeachment proceeding (without actually using those words) as the alternative “process other than the criminal justice system” where the president might be formally accused “of wrongdoing.” None of this is really new.
What is important about Mueller’s statement is that it powerfully reframes the issue at a moment when the attorney general has batted around words like “spying” and where the president and his surrogates have accused FBI agents of “treason.”
Mueller’s short statement reminds the American public why the investigation began and proceeded in the first place: Credible evidence overwhelmingly established that a hostile foreign power attempted to interfere in our presidential election.
The purpose of this investigation wasn’t to “get Trump.” Rather, the purpose was to investigate the Russian government’s sustained and multipronged interference in our electoral process. Mueller’s short statement emphasizes this point repeatedly.
Russia tried to interfere in our election and to a substantial degree it succeeded. To the extent this shocking point had been obscured by tweets and Trump-friendly testimony, Mueller’s short and plain statement is a valiant attempt to reset the conversation and remind the American people what is at stake.
Jessica Levinson, law professor, Loyola Law School
There is nothing in the Constitution that prevents a sitting president from being indicted. There is nothing in Supreme Court opinions that prevents a sitting president from being indicted. All we have is Department of Justice policy based largely on concerns over separation of powers.
On the other hand, there is an important principle guiding our legal system that no person is above the law. That principle is fundamentally undercut by the policy that a sitting president is immune from indictment.
Douglas Spencer, law professor, University of Connecticut
The law has yet to be settled on the question whether a sitting president can be indicted (by a grand jury) or charged (by a prosecutor) for actions taken while in office. The closest case is Clinton v. Jones, where the Supreme Court held that the president was not immune to civil charges for unofficial acts taken before the president was sworn in.
In the case of President Trump, Mueller was investigating criminal behavior related to official acts taken while in office. So the holding of Clinton v. Jones doesn’t directly apply. But in the opinion of Clinton v. Jones, the Court wrote: “when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach...As our opinions have made clear, immunities are grounded in ‘the nature of the function performed, not the identity of the actor who performed it.’” This suggests that there is no blanket immunity for presidents whose official acts potentially break the law.
On the other hand, the Supreme Court did not specify what its “functional approach” would be; presumably some balance of the country’s need for an undistracted leader, the executive’s capacity to perform his constitutional duties, the separation of powers, and the rule of law.
The OLC conducted its own analysis (in 1973 and again in 2000) and concluded that the right balance of these interests is to wait until a president leaves office to file any charges, with impeachment as the proper method for accountability in the meantime.
This raises one last important point about Mueller’s comments today. He said, “the special counsel’s office is part of the Department of Justice and by regulation it was bound by that Department policy. Charging the president with a crime was, therefore, not an option we could consider.”
At times in our country’s history, Congress has delegated investigatory powers to “independent counsels” that were not as closely bound by DOJ policy as the current system of “special prosecutors.” We may never know whether Mueller’s team would have sought an indictment against Trump in a counterfactual world where they were not bound by the DOJ’s policy.
Even in that world, though, such an indictment would have been challenged by the president, and the bottom line is that the issue would have gone to the Supreme Court.
Diane Marie Amann, law professor, University of Georgia
It is a bedrock principle of the US Constitution that no person is above the law. At times this bedrock has been subjected to erosion; for instance, by legal doctrines that immunize certain persons, in certain circumstances, from prosecution. The DOJ policy against indicting the president relies on one such doctrine.
Like similar memos before it, a 2000 DOJ memorandum concluded that, even as the Constitution prescribes impeachment as a path for removal, it precludes indictment of a sitting president. That 2000 analysis hinged on a balancing of speculated interests.
Yet one can imagine a set of facts that would upset the balance; say, public commission of an act of violence explicitly prohibited by federal statute. Particularly if impeachment proceedings did not immediately ensue, a recalibration of interests likely would reach a result different from that in 2000.
The facts at hand are quite different, of course. But the clear constitutional path is the same. As it has been since the release in March of Attorney General William Barr’s letter, therefore, the ball remains in Congress’s court.
Frances Hill, law professor, University of Miami
Mueller stated that a president cannot be indicted for a crime while he is in office, but he did not say that a president cannot be held accountable for his actions while he is in office.
Mueller, in effect, concluded that removal of a president from office is not, as the law is currently understood, a matter that can be addressed under criminal law. If one asks this question as a general matter of law without reference to a particular case, the current state of the law on the indictment of sitting president is undecided because it has been addressed only in a DOJ memorandum and has never been litigated. The outcome of any such litigation would depend on the facts of a particular case.
The case of a president who murders someone while he is in office would produce a more searching analysis than that prepared based on other facts. In the current case, it is important to remember that an indictment for a criminal offense is not the only means of holding a sitting president accountable for criminal activity or for other abuses of his office.
As Mueller noted today and in the full report, the Constitution provides a different process for removal. Mueller again stated that if it had been possible to conclude that the current president committed no crimes, the report would have so stated. Mueller and his team were unable to conclude that the president had committed no crimes and noted this in the report.
In this situation engulfing the country, it is unacceptable to learn that not all of the current members of Congress have read the publicly available, redacted version of the Mueller report. It is time for voters to demand that their representative do their jobs. It is also important that the congressional investigations into issues not addressed in the Mueller report continue.
This is especially urgent in reference to issues of national security and the president’s obligation under the “take care clause” of Article II of the Constitution to protect the United States from interference from foreign countries.
The voters who will decide the political future of current officeholders — and much larger questions about democracy and civil liberties and national security as well — need to know as much as possible about the president’s discharge of his constitutionally assigned duties.
Ric Simmons, law professor, Ohio State University
There is almost no constitutional support for the assertion that a sitting president cannot be indicted.
Although the Department of Justice has a longstanding policy not to indict a sitting president, the memo supporting that policy concedes that the Impeachment Clause of the Constitution (Article I, Section 3) does not preclude indictment of a president — the clause merely states that if the president (or any other federal official) is impeached and convicted, that successful impeachment does not preclude a subsequent criminal indictment and prosecution of the president.
Instead, the DOJ based its opinion on the proposition that subjecting the president to a criminal trial while in office would unduly and unconstitutionally interfere with the president’s official duties. However, the memo does not give sufficient weight to the possibility of indicting the president and then delaying the actual prosecution until the president is out of office, thus avoiding the problem of creating an unconstitutional interference with the president’s duties.
Also, although the Supreme Court has never directly addressed this issue, the most recent Supreme Court case to touch on this issue, Clinton v. Jones, held that it was not unconstitutional for a sitting president to be the defendant in a civil case.
If being subject to an ongoing civil case does not unconstitutionally take up too much time and energy from the president’s official duties, it is very unlikely that being indicted but delaying the prosecution until after the president is out of office would be an unconstitutional burden.
Peter Shane, law professor, Ohio State University
I share the view, expressed also by the late conservative constitutional scholar Ronald A. Rotunda, that presidents may indeed be indicted while in office. The Constitution does not say otherwise, and the functional considerations that underlay the OLC opinions do not hold water.
Numerous Supreme Court opinions support the idea that the president is not above the law, a concern expressed also by several of the most notable legal minds among the founding generation. For example, James Iredell, a future Supreme Court Justice, said in the course of the North Carolina debates on the Constitution: “If he [the president] commits any misdemeanor in office, he is impeachable. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.”
Because the Justice Department has taken a contrary position, the special counsel was constrained to follow department policy. But that is an administrative, not a constitutional, constraint.
Ilya Somin, law professor, George Mason University
There’s a longstanding disagreement over the issue of whether a sitting president can be indicted and prosecuted for possible crimes. In my view, the answer is yes. Nothing in the Constitution grants the president immunity from prosecution of the sort that exists in some European constitutions.
The idea that a sitting president is immune from criminal prosecution is also at odds with the Supreme Court’s 1997 ruling in Clinton v. Jones, which holds that the president is subject to civil lawsuits (thereby allowing Paula Jones to proceed with her sexual harassment case against then-President Bill Clinton). A civil case can be just as disruptive as a criminal one.
Defenders of presidential immunity claim that impeachment is the sole remedy for crimes committed by a sitting president. But impeachment is not a form of criminal punishment; it merely enables Congress to remove the president from office. Impeachment also covers serious non-criminal abuses of power, but may not be an appropriate remedy for crimes with little or no connection to the president’s official duties.
Prosecution of sitting presidents does create the risk that a president will be tied up by a case involving some minor violation of the law. The founders did not envision today’s extraordinarily expansive federal criminal law, under which a majority of adult Americans have probably committed a federal crime at some time in their lives.
Short of cutting back on the scope of federal law (a highly desirable measure for other reasons), the remedy for this would be for Congress to pass a law limiting prosecution of sitting presidents to very serious offenses. That way, they would not be hamstrung by prosecutions for minor violations of drug or tax laws.
For now, the Justice Department is unlikely to change its longstanding policy barring prosecution of sitting presidents — even if that policy is no longer seen as a constitutional mandate. Even for presidents suspected of more serious crimes, prosecution while in office is not always the right call. But the option should at least be available.
While it would be a mistake to tie up presidents with prosecutions for minor offenses, it would also be an error to give sitting presidents immunity from prosecution for even the most serious crimes. A criminal president can do grave damage, and deferring prosecution until he leaves office — potentially many years later — may not be a sufficient deterrent.
Susan Bloch, law professor, Georgetown University
The Department of Justice has adopted the position that a sitting president cannot be indicted, but the courts have never weighed in on the issue. Under the DOJ guidelines, the president can be investigated while in office and then, after he or she leaves office, can be indicted and tried. (The President can be pardoned for federal offenses, but not for state crimes.)
Steven Duke, law professor, Yale University
The DOJ’s opinion that a sitting president may not be indicted while in office has never been tested in court but makes a lot of sense. There is not much reason to extend such a rule to state courts, however. Mueller’s report did not opine on that subject since questions of state law were not part of Mueller’s mandate.
Jed Shugerman, law professor, Fordham University
The OLC policy that a president cannot be indicted relies on something that simply does not exist in our legal system: the equitable tolling of criminal statutes of limitations. In civil cases like contracts and torts for money damages, that means a judge can give a plaintiff extra time to bring a case for general fairness concerns (like the defendants’ fraud).
But those considerations are different in criminal cases. Judges have never given prosecutors more time for vague “fairness” concerns, unless there is a specific law that allows it, like for fugitives. The OLC cited only to speculative discussions, and no actual precedents, because there don’t seem to be any... in all of American history. This is a remarkable oversight, and it would leave presidents above the law in many cases.
There is no sign a US court has ever or would ever toll a criminal statute of limitations for such a discretionary choice not to indict. This was a glaring error by the OLC in 2000, when Clinton was facing his own potential indictment.
Frankly, Mueller’s hands would have been tied by Barr, because even if Mueller wanted to indict Trump, he probably knew that Barr would overrule him, and it was not worth the fight.