President Donald Trump thinks the stock market would crash if he were impeached, but critics are still placing their bets.
WASHINGTON – President Donald Trump may be following his predecessors, Richard Nixon and Bill Clinton, into the world of criminal law.
The question both of them faced – and which Trump may confront – is whether a president can be indicted while in office.
The Constitution doesn’t say. Neither has Congress spoken by statute. The closest the Supreme Court has come was a narrow ruling in 1997 that a sexual harassment lawsuit against Clinton could proceed.
That has left the Justice Department as arbiter on the question of whether a sitting president can be charged with a crime. No, it said, first in 1973 and again in 2000.
But some authorities on the separation of powers say: Not so fast.
Now that Trump has been implicated by his personal lawyer, Michael Cohen, in a possible violation of campaign finance laws, the question of his criminal culpability has resurfaced. Herewith, some answers:
Can a president be indicted?
From a 41-page memo issued in 1973 to a 39-pager written in 2000, the Justice Department has said no. The main reason: A criminal trial would interfere with the president’s unique duties under the Constitution.
“The indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” assistant attorney general Randolph Moss wrote in 2000.
What happened with Nixon?
Accused in the cover-up of the 1972 break-in at Democratic National Committee headquarters in Washington’s Watergate office complex, Nixon was named as an unindicted co-conspirator by special prosecutor Leon Jaworski, who refused the grand jury’s unanimous recommendation to indict the president.
Nixon resigned in August 1974 amid impeachment proceedings and later was pardoned by President Gerald Ford, lest he face criminal proceedings.
Congress passed a law four years later establishing the office of independent counsel, giving unprecedented power to a court-appointed prosecutor not answerable to the president or Congress.
What about Vice President Agnew?
The same protection from indictment in office did not extend to Nixon’s vice president, Spiro Agnew, who was investigated in 1973 for tax fraud and corruption from his days in Maryland politics.
Agnew at first argued that he could not be indicted but eventually offered his resignation in exchange for a plea bargain. He escaped with a $10,000 fine and three years’ probation.
What happened with Clinton?
The best-known independent counsel was Ken Starr, who expanded his original probe into Clinton’s Whitewater land deal in Arkansas to include the president’s affair with White House intern Monica Lewinsky.
A memorandum commissioned by Starr’s office contended in 1998 that he could indict and convict the president. But two years later, the Justice Department reaffirmed its opinion that indictment was out of bounds.
Clinton was impeached by the House but acquitted by the Senate. He paid a fine and had his law license suspended for lying under oath.
What is the current rule?
The 2000 memo is the latest official opinion, but it’s not ironclad. Trump’s counsel, Rudy Giuliani, claimed earlier this year that Mueller’s office has pledged to abide by it, meaning no indictment is forthcoming.
Rudy Giuliani explains why he doesn’t want President Trump to testify in the Mueller Russia Probe saying “truth isn’t truth.”
But under Justice Department regulations written for future special counsels in 1999, Mueller could ask acting attorney general Rod Rosenstein for the authority to indict Trump. If he’s rebuffed, a report would go to Congress explaining the reasons.
Would it wind up in court?
Any effort to indict the president could end at the Supreme Court, making Trump’s nomination of federal appeals court Judge Brett Kavanaugh potentially significant.
Kavanaugh earned his stripes in Republican circles by pursuing Clinton as a member of Starr’s staff, even recommending that the president be asked explicit questions about his dalliance with Lewinsky. But in 2009, he wrote that he had changed his mind, and that presidents should be spared criminal investigation while in office.
Can Trump be charged later?
Nothing prevents criminal charges being brought once the president leaves office. But if he’s not indicted within several years of the alleged crime, the statute of limitations could run out. That’s why some experts argue for indicting presidents.
“This is a matter that could be reconsidered by the department,” Walter Dellinger, who headed the Office of Legal Counsel early in Clinton’s first term, wrote recently. “The complex history of criminal proceedings against presidents and vice presidents suggests that these issues are not foreclosed.”
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