As evidence of law breaking by Donald Trump continues to emerge, commentators are speculating about whether a sitting president can be indicted. The Department of Justice has twice opined in the negative -- during both the Nixon and Clinton administrations. But nothing in the Constitution would prevent Trump from being criminally indicted while he occupies the Oval Office.
Trump is apparently implicated in at least three federal criminal investigations. Special Counsel Robert Mueller is examining violations of campaign finance laws in connection with Trump Tower Moscow. Prosecutors in the Southern District of New York have documented campaign finance violations stemming from hush money paid to Trump's alleged paramours in order to influence the presidential election. And the New York US attorney's office is analyzing whether Trump's inaugural committee received illegal payments for presidential access and policy influence.
State lawsuits and investigations also spell legal peril for Trump. Attorneys general in Maryland and Washington, DC, have issued subpoenas in a lawsuit alleging the Trump Organization's business dealings violated the Emoluments Clause. Located in Article I, Section 9 of the Constitution, the clause prohibits US officials from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress.
And New York officials are reviewing possible income tax fraud by Trump and the Trump Foundation.
Moreover, Trump's former lawyer Michael Cohen; longtime Trump ally David Pecker, head of American Media Inc.; and Allen Weisselberg, chief financial officer of the Trump Organization, are providing information to Mueller that could incriminate the president.A Sitting President Can Be Indicted
The Constitution provides for impeachment of high government officials for treason, bribery, or other high crimes and misdemeanors.
"Nothing," however, in the "text, structure, or history" of the Constitution, or Supreme Court precedent, prevents the indictment of a sitting president, according to Harvard law professor Laurence Tribe.
Yet Trump lawyer Rudy Giuliani told "Fox & Friends" that Mueller's office had informed former Trump attorney Jay Sekulow that the special counsel did not have the power to indict a sitting president.
If Mueller did say that, he would likely be relying on two memos from the Department of Justice's Office of Legal Counsel. During both the Richard Nixon and Bill Clinton administrations, the Office of Legal Counsel took the position that sitting presidents are immune from criminal prosecution for policy reasons, if not constitutional ones.
But in 1974, Watergate Special Prosecutor Leon Jaworski's office concluded that "the Framers did not specifically provide for Presidential immunity from indictment."
And a 1998 memo from independent counsel Kenneth Starr's investigation of Clinton says a president can be indicted for criminal activity: "It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president's official duties. In this country, no one, even President Clinton, is above the law."
Some legal scholars argue that the Constitution provides the remedy of impeachment for a law-breaking president, who can only be charged with a crime after he leaves office.
The Jaworski memo, however, notes that while impeachment is a "political" process that does not require the commission of a felony, the criminal justice process exists for a different purpose: "to prosecute crimes with reference to an apolitical code applied objectively to all citizens."
Furthermore, the Jaworski opinion points out, "the disruption caused by indictment and trial of the President would be no greater, and possibly less, than that caused by the impeachment process," which "promises to be a terribly drawn out, divisive, and possibly inconclusive process ... on a variety of less distinct charges."