Executive Branch

Can a sitting president be indicted? The Constitution doesn't give a definitive answer

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The U.S. Supreme Court has never decided whether a president may be criminally prosecuted while in office, and the U.S. Constitution doesn’t give a direct answer.

But the prevailing view is that a president can’t be indicted while in office, the New York Times reports. Presidents can be prosecuted, however, after they leave office or after impeachment, according to conventional wisdom.

The issue is being debated anew amid reports that President Donald Trump asked then-FBI Director James Comey to shut down an investigation into former national security adviser Michael Flynn. Some have questioned whether the alleged request amounted to obstruction of justice.

Article 1, Section 3 of the Constitution, doesn’t directly address the issue of prosecution in office. It reads: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Yale University law professor Akhil Reed Amar agrees with most scholars that a sitting president can’t be criminally prosecuted. He says the Constitution designates Congress as the court that tries sitting presidents.

“If you’re going to undo a national election, the body that does that should have a national mandate,” Amar told the New York Times “Even a federal prosecution would follow only from an indictment from a grand jury sitting in one locality.”

In a 1997 law review article, Amar argues that states can’t use their power to derail the functioning of the United States by prosecuting sitting presidents. And a federal prosecution would raise separation of powers problems, putting the executive branch at the mercy of the judiciary, he argued. Vox noted the article.

Taking the other side is Hofstra University law professor Eric Freedman, who wrote a 1999 law review article that argued sitting presidents have no constitutional immunity from criminal prosecution.

He argues that federal judges can be indicted, even though they are removed by impeachment. And, he says, giving sitting presidents immunity is inconsistent with the history, structure and philosophy of the U.S. government.

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