Capitolworks: Just the Facts… Is a Sitting President Immune from Personal Criminal Indictment?

All eyes are on Congress and President Trump as they both make their way through the highly publicized impeachment inquiry. However, while the general public remains focused on this seemingly never-ending talk of impeachment, the legal community is focused on one of the President’s lesser known legal issues: the state of New York’s allegations that President Trump falsified business records in order to cover-up hush money payments related to potential adulterous actions. In comparison to the impeachment inquiry which follows a constitutionally constructed process, New York’s recent move to obtain the President’s tax filings and other financial records offers an example of where the law remains unclear. Specifically, can a sitting president be charged and/or indicted with a serious crime outside of the scope of his executive powers meaning, in his/her personal capacity rather than as the President? While recent history offers some examples of other Presidents who faced this same set of circumstances, the courts have yet to agree on whether or not, or to what extent, a sitting president is protected by immunity while in office. Let’s examine this legal quandary in a bit more detail.

The constitutional clause that Congress uses to impeach a President, the “Impeachment Clause” is the same clause that is used to determine whether or not a president has committed crimes outside of his capacity as the President. The clause stipulates that a President can be impeached and tried- as is happening in the moment- but the clause does not address when a President can be prosecuted for crimes committed outside the scope of his executive powers. This uncertainty is what is driving this debate and will determine the outcome of New York’s attempts to gain access to Mr. Trumps financial records. Confused? Perhaps looking at the two different sides of this debate will help.

By definition, “impeachment” means that the president faces the possibility of conviction; he or she is only removed from office if two-thirds of the Senate votes to convict. This use of “impeachment” and its process is what we are seeing as Congress investigates Mr. Trumps relationship with Ukrainian officials, U.S. federal aid and the Biden family. However, the term “impeachment” is also seen by many legal scholars as a way to determine the legality of any president’s actions whether or not such actions are conducted through his/her Presidential capacity or not. Simply stated, proponents of this interpretation hold that once the process of impeachment begins, it is legal for courts to charge a president with any crimes that may have been committed, personally or professionally. Lawyers holding this view argue that the founding fathers purposefully chose not to include a provision in the Constitution protecting the president from indictment, indicating that criminal prosecution is lawful.

Adding to this ambiguity is the fact that Congress has historically chosen to avoid creating law that would clarify when the prosecution of the president—in his personal capacity-- can occur. However, that doesn’t mean that this legal quandary has not been challenged. For example, in 1973 and 2000, the U.S. Department of Justice (DOJ) unilaterally released a memo that focused on whether prosecution of a sitting president would best serve the Nation, or not. Both memos found that criminal proceedings against the President would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally-assigned functions.” For these reasons, executive branch attorneys within the DOJ found that a sitting president cannot be charged with a crime. Note however that DOJ is an executive agency of the President.

The Supreme Court, however, broke from the DOJ twice, reaffirming the notion that no one—including the President—is ‘above the law.’ In United States v. Nixon (1974), the President was required to submit his personal tapes to a court for the purpose of incriminating other defendants in his personal criminal investigation. Similarly, in Clinton v. Jones (1997), after unsuccessfully attempting to postpone judicial proceedings, the President faced a sexual harassment lawsuit while still in office. Thus, in contrast to the DOJ’s interpretation, the Supreme Court denied the Presidents’ claims to constitutional immunity and allowed them to face civil and criminal prosecution while in office.

With New York’s current move to ascertain the President’s personal files, this controversy and legal ambiguity continue to exist. For now, the President has bought himself some time, receiving a stay from the Supreme Court to temporarily block an appeals court ruling that would have required the President to turn over his tax filings and other financial records to the state of New York. However, this is essentially a procedural move by the Court, allowing them some additional time to decide how to proceed. That said, we cannot ignore the politics that are inherent in any, and all, of these actions. Is it possible that with a divided Congress and a more conservative Supreme Court, that Mr. Trump might benefit from this particular political make-up? Perhaps. But, while politics will undoubtedly be a factor in any outcome, the only thing that we can say with confidence is that each branch of our federal government must make their way through relatively uncharted territory on multiple fronts. Impeachment, trial, removal from office, criminal/civil charges, indictment, prosecution. These are all terms that we will see frequently over the next days, weeks and months and we will do our best to try to bring as much clarity to this chaos as possible!

*Contributing Author: Rebecca Hattar