The government’s recent sentencing memos regarding Michael Cohen, President Trump’s former lawyer, have prompted speculation about whether Mr. Trump himself acted unlawfully during his presidential campaign. The possibility of such criminal conduct has, in turn, renewed an old debate about whether it would be constitutional to indict a sitting United States president.
Although it’s unlikely Mr. Trump will be the first president ever to be criminally charged, I think the Constitution wouldn’t forbid an indictment, even during his presidency. Nevertheless, the constitutional debate is an unfortunate distraction from a more important question. Although the fixation on Mr. Trump’s possible criminal culpability is understandable, it obscures the principal objective of the Russia investigation led by the special counsel, Robert Mueller, which is less to punish past wrongdoing than to identify continuing threats to our electoral system.
What the nation most needs to know — and ideally what Mr. Mueller might explain — is why the president appears unwilling or unable to deal seriously with those threats, regardless of whether he also happens to have violated the law before he took office.
Let’s address the constitutional issue first. There’s virtually no dispute that a former president can be subject to a criminal trial, even for offenses that occurred during his term. But it’s hard to imagine any United States attorney general allowing the Justice Department to prosecute the president while he’s in office. And in the unlikely event an emboldened state prosecutor moved to commence such a trial, the federal courts would likely postpone it until after the president’s term, as an accommodation to his singular constitutional responsibilities.
The more pertinent question, then, is whether a sitting president can be charged, even if the trial itself wouldn’t take place until after his term ends. The Office of Legal Counsel in the Justice Department acknowledged in 2000 that nothing in the text of the Constitution or evidence of the framers’ intent would preclude a grand jury indictment of a sitting president.
The office nevertheless concluded that an indictment would be unconstitutional in light of a powerful functional consideration: Because a trial during the president’s term would be precluded, an indictment would subject the president to the “stigma and opprobrium” of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law — a sword of Damocles that could undermine the president’s “respect and stature both here and abroad” and thus impact his ability “to act as the nation’s leader in both the domestic and foreign spheres.”
The Office of Legal Counsel was right that this is a serious concern, but it doesn’t follow that an indictment would be unconstitutional. The Justice Department has never disputed, for instance, that a grand jury could name a president as an unindicted co-conspirator — as it did with Richard Nixon in 1974 — even though the opprobrium of such a designation shouldn’t be materially more damaging than the stigma of a pending indictment.
Moreover, as Justice John Paul Stevens wrote for eight members of the Supreme Court in the Paula Jones case in 1997, which permitted a sexual harassment suit against President Bill Clinton to go forward while he was in office, the possibility that federal judicial proceedings “may significantly burden the time and attention of the chief executive” isn’t sufficient to establish a constitutional violation. If that’s the case in the context of an embarrassing civil suit, it’s hard to see why the looming shadow of criminal charges — especially for conduct that occurred before the president assumed office — would have a more acute functional impact that crosses some constitutional line.
Therefore, if there ever were an extraordinary case in which immediate charges were essential — in particular, if a president committed a heinous crime that demanded justice and he refused to waive what might otherwise be an effective statute-of-limitations defense — the attorney general should overrule the Office of Legal Counsel’s conclusion that the Constitution categorically prohibits an indictment during a president’s term. (Although I worked at the Office of Legal Counsel in 2000, I had no involvement in that opinion.)
Even so, an indictment during Mr. Trump’s presidency remains extremely unlikely, at least in a case where a trial remains viable after he leaves office. Mr. Mueller and the attorney general overseeing him would almost surely calculate that the costs to the nation would exceed the benefits of bringing charges during the president’s term, and therefore urge the grand jury to hold off on taking the final step until Mr. Trump’s presidential tenure has ended.
This doesn’t mean, however, that a criminal investigation of Mr. Trump’s possible wrongdoing is pointless. To the contrary. For one thing, a grand jury would be well within its rights to examine the evidence while it’s fresh in order to determine whether to bring charges against Mr. Trump after he leaves office (or perhaps to issue an indictment that would remain sealed until then). And even if Mr. Mueller chooses not to bring charges, he might have good reason to report any wrongdoing to Congress for its consideration (and to the public, assuming classified information is not an issue).
Most important, we should keep in mind that Mr. Mueller was hired to lead a counterintelligence investigation. His primary charge is to ascertain the nature and extent of the threat to the United States election system and any “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” including, but not limited to, Mr. Trump himself. His principal function, in other words, is forward-looking and preventive, not punitive.
As president, Mr. Trump has repeatedly demonstrated that he won’t, or can’t, deal forcefully with what Dan Coats, the director of national intelligence, has described as Russia’s “ongoing, pervasive efforts to undermine our democracy.” Is Mr. Trump beholden to Russian officials in some way? Or is there another explanation?
It’s far more important for Mr. Mueller to get to the bottom of these questions — about the president’s capacity to perform his solemn constitutional duties on behalf of the nation — than to assess whether Mr. Trump did or did not satisfy the elements of any particular criminal offense back in 2016.
Perhaps Mr. Trump will become the first president to face criminal charges. Perhaps not. But that’s the least of it. We’d be wise to shift our attention from the unlikely possibility of a trial to the much more important matter of what the Mueller investigation might tell us about Mr. Trump’s relationships with Russia and whether they compromise his ability to protect and defend the nation.
Marty Lederman teaches constitutional law at the Georgetown University Law Center and has twice served in the Department of Justice’s Office of Legal Counsel.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
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Home » Analysis & Comment » Opinion | Would Indicting Trump Be Constitutional?
Opinion | Would Indicting Trump Be Constitutional?
The government’s recent sentencing memos regarding Michael Cohen, President Trump’s former lawyer, have prompted speculation about whether Mr. Trump himself acted unlawfully during his presidential campaign. The possibility of such criminal conduct has, in turn, renewed an old debate about whether it would be constitutional to indict a sitting United States president.
Although it’s unlikely Mr. Trump will be the first president ever to be criminally charged, I think the Constitution wouldn’t forbid an indictment, even during his presidency. Nevertheless, the constitutional debate is an unfortunate distraction from a more important question. Although the fixation on Mr. Trump’s possible criminal culpability is understandable, it obscures the principal objective of the Russia investigation led by the special counsel, Robert Mueller, which is less to punish past wrongdoing than to identify continuing threats to our electoral system.
What the nation most needs to know — and ideally what Mr. Mueller might explain — is why the president appears unwilling or unable to deal seriously with those threats, regardless of whether he also happens to have violated the law before he took office.
Let’s address the constitutional issue first. There’s virtually no dispute that a former president can be subject to a criminal trial, even for offenses that occurred during his term. But it’s hard to imagine any United States attorney general allowing the Justice Department to prosecute the president while he’s in office. And in the unlikely event an emboldened state prosecutor moved to commence such a trial, the federal courts would likely postpone it until after the president’s term, as an accommodation to his singular constitutional responsibilities.
The more pertinent question, then, is whether a sitting president can be charged, even if the trial itself wouldn’t take place until after his term ends. The Office of Legal Counsel in the Justice Department acknowledged in 2000 that nothing in the text of the Constitution or evidence of the framers’ intent would preclude a grand jury indictment of a sitting president.
The office nevertheless concluded that an indictment would be unconstitutional in light of a powerful functional consideration: Because a trial during the president’s term would be precluded, an indictment would subject the president to the “stigma and opprobrium” of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law — a sword of Damocles that could undermine the president’s “respect and stature both here and abroad” and thus impact his ability “to act as the nation’s leader in both the domestic and foreign spheres.”
The Office of Legal Counsel was right that this is a serious concern, but it doesn’t follow that an indictment would be unconstitutional. The Justice Department has never disputed, for instance, that a grand jury could name a president as an unindicted co-conspirator — as it did with Richard Nixon in 1974 — even though the opprobrium of such a designation shouldn’t be materially more damaging than the stigma of a pending indictment.
Moreover, as Justice John Paul Stevens wrote for eight members of the Supreme Court in the Paula Jones case in 1997, which permitted a sexual harassment suit against President Bill Clinton to go forward while he was in office, the possibility that federal judicial proceedings “may significantly burden the time and attention of the chief executive” isn’t sufficient to establish a constitutional violation. If that’s the case in the context of an embarrassing civil suit, it’s hard to see why the looming shadow of criminal charges — especially for conduct that occurred before the president assumed office — would have a more acute functional impact that crosses some constitutional line.
Therefore, if there ever were an extraordinary case in which immediate charges were essential — in particular, if a president committed a heinous crime that demanded justice and he refused to waive what might otherwise be an effective statute-of-limitations defense — the attorney general should overrule the Office of Legal Counsel’s conclusion that the Constitution categorically prohibits an indictment during a president’s term. (Although I worked at the Office of Legal Counsel in 2000, I had no involvement in that opinion.)
Even so, an indictment during Mr. Trump’s presidency remains extremely unlikely, at least in a case where a trial remains viable after he leaves office. Mr. Mueller and the attorney general overseeing him would almost surely calculate that the costs to the nation would exceed the benefits of bringing charges during the president’s term, and therefore urge the grand jury to hold off on taking the final step until Mr. Trump’s presidential tenure has ended.
This doesn’t mean, however, that a criminal investigation of Mr. Trump’s possible wrongdoing is pointless. To the contrary. For one thing, a grand jury would be well within its rights to examine the evidence while it’s fresh in order to determine whether to bring charges against Mr. Trump after he leaves office (or perhaps to issue an indictment that would remain sealed until then). And even if Mr. Mueller chooses not to bring charges, he might have good reason to report any wrongdoing to Congress for its consideration (and to the public, assuming classified information is not an issue).
Most important, we should keep in mind that Mr. Mueller was hired to lead a counterintelligence investigation. His primary charge is to ascertain the nature and extent of the threat to the United States election system and any “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” including, but not limited to, Mr. Trump himself. His principal function, in other words, is forward-looking and preventive, not punitive.
As president, Mr. Trump has repeatedly demonstrated that he won’t, or can’t, deal forcefully with what Dan Coats, the director of national intelligence, has described as Russia’s “ongoing, pervasive efforts to undermine our democracy.” Is Mr. Trump beholden to Russian officials in some way? Or is there another explanation?
It’s far more important for Mr. Mueller to get to the bottom of these questions — about the president’s capacity to perform his solemn constitutional duties on behalf of the nation — than to assess whether Mr. Trump did or did not satisfy the elements of any particular criminal offense back in 2016.
Perhaps Mr. Trump will become the first president to face criminal charges. Perhaps not. But that’s the least of it. We’d be wise to shift our attention from the unlikely possibility of a trial to the much more important matter of what the Mueller investigation might tell us about Mr. Trump’s relationships with Russia and whether they compromise his ability to protect and defend the nation.
Marty Lederman teaches constitutional law at the Georgetown University Law Center and has twice served in the Department of Justice’s Office of Legal Counsel.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Source: Read Full Article