At long last, it’s November 9, and the nation has an answer to the question of who will serve as its next President. Although this should bring a measure of relief, a feeling of uncertainty remains. What lies ahead for our nation under the leadership of Donald Trump, billionaire reality television star who invented the chant “Lock Her Up”? What happens to unresolved allegations of federal tax liability and sexual assault? Does the theoretical specter of possible indictment and criminal trial or impeachment loom for President-elect Trump?
No clear legal answer exists to the question of whether a sitting President can be indicted and prosecuted. The Attorney General’s Office of Legal Counsel has considered this issue in depth twice in the past half-century – in 1973, in connection with President Richard Nixon’s role in Watergate, and again in 2000, after President Bill Clinton was acquitted of impeachment charges. On both occasions, federal lawyers in the Attorney General’s office apparently determined that the indictment or criminal prosecution of a sitting President was impermissible and unconstitutional because it would undermine the capacity of the executive branch to perform its constitutionally assigned functions.
The United States Constitution provides only for impeachment and is silent on the issue of whether federal officials can be criminally prosecuted while holding office. As a result, analysists are forced to comb through fragments of debates held during the constitutional conventions to discern the Framers’ intent with regard to this issue. In 1973 and 2000, lawyers in the Attorney General’s Office determined because of the singularly unique duties and demands of the position, a President cannot be called upon to answer the demands of another branch of government – in this case the judicial branch – in the same manner as all other individuals. They concluded as a matter of policy that a President cannot both serve as the nation’s chief executive and defend criminal charges.
For sure, the President is not above the law. He is accountable for any misconduct that occurs before, during, and after service to the country. When in service, however, he occupies a unique position within our constitutional order. According to the memorandum written by the Office of Legal Counsel in 1973, a criminal trial empowering a jury of twelve individuals to, in effect, overturn a national mandate as expressed through the election of a President through a guilty verdict is unacceptable. Instead, as written in that memorandum, the decision to terminate the service of a President “is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution” through the impeachment process.
The impeachment process allows the House of Representatives to file formal charges against a federal official. Once filed, the Senate conducts a trial. If the official is convicted of the impeachment charges, he or she is automatically removed from office. What is unclear is whether the impeachment process can be used to address misconduct alleged to have occurred before the official took office. No law definitively speaks to the founding father’s intent in this regard and historical use of the process is somewhat conflicting on this point.
In 1873, when the House was considering the impeachment of Vice President Schuyler Colfax for allegedly fraudulent acts that occurred prior to his election, the House Judiciary Committee determined that impeachment under the Constitution “should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties.” Colfax, whose term was set to expire within weeks, was not impeached.
However, in 2010, District Court for the Eastern District of Louisiana Judge Thomas Porteous was removed from office after he was found guilty on four articles of impeachment stemming from charges that he had accepted bribes, used a false name to elude creditors and intentionally misled the Senate during his confirmation hearings – all actions which occurred prior to his appointment to the federal bench. The issue of the timing of the misconduct appears never to have been raised during the Senate impeachment hearings. Arguably, a clear link existed between Porteous’s wrongdoing and his service as a federal officer. Nevertheless, no clear-cut answer lies as to whether a federal official can be impeached for past wrongs.
Given the Republican Party’s election sweep of both houses of Congress, the impeachment of President-elect Trump seems an unlikely possibility. Regardless of how one feels about the outcome of last night’s election, it is difficult to make the case that the criminal investigation or prosecution of the President is in the best interest of our country.
From The Insider Blog: White Collar Defense & Securities Enforcement.