The US constitution is very clear on how a sitting president can be impeached for high crimes and misdemeanors by Congress. However, it’s still not clear whether a sitting president can face criminal charges. The relevance of this question is largely inspired by the ongoing investigation by Special Counsel Robert Mueller on collusion between the Trump campaign and Russia. There are also reports that Mueller is looking into whether the president has obstructed justice in his efforts to block the probe.
Despite this, there’s a policy at the Justice Department that says that sitting presidents cannot be prosecuted. The policy still holds but what is it really about? Well, let’s go back a few decades. In 1973 during the Watergate scandal involving Richard Nixon, the Justice Department’s Office of Legal Counsel adopted a resolution that declared that a sitting President cannot be prosecuted. Nixon resigned in 1974 as an impeachment process from the House of Representative was already underway.
The policy was later reaffirmed again by the Justice Department in 2000. The reaffirmation also noted that an attempt to prosecute a sitting president would have massive implications on the separation of power. It would alienate the executive branch of the government which could have serious repercussions on the country. The resolution also shields the president against any possible indictments.
Experts have noted that the Justice Department resolution ties all employees including the Special Counsel who is appointed by the department. This means that even if the president has committed crimes, the office of the Special Counsel may still not be able to reach the needed indictments unless Trump is impeached.
But some legal thinkers have taken a little liberty in the way they interpret all this. They argue that if the founding fathers felt that the indictment or prosecution of a sitting president could be detrimental to the country, then naturally they would have included a section in the constitution that prevents this. But the fact that they didn’t may suggest that they felt anyone could be prosecuted at any given time including a sitting president.
In addition to this, it’s still possible that Robert Mueller may indict Trump if there’s enough evidence to do so. Although the Special Counsel is an employee of the Justice Department, he may deviate from the policy under extraordinary circumstances. However, he would still need to get approval from the US Attorney General. The position is currently held by Trump’s nominee William Barr who replaced Jeff Sessions.
Experts argue though that the only way this exception can be granted is if indeed Mueller finds evidence of serious crimes against the president. But there are still other important things to note. The statute of limitation, for instance, may prevent the criminal prosecution of president Trump if he’s elected in 2020. In essence, if there’s going to be an indictment, Congress has to force the president out before any criminal prosecution can begin. If they fail to do so and Trump is re-elected, then the president may walk free after his term. But we are not there yet and as the Mueller probe winds down, these questions will become more frequent.
