Can a sitting US president face criminal charges?

Jan Wolfe -

The US Constitution explains how a president can be removed from office for “high crimes and misdemeanors” by Congress using the impeachment process. But the Constitution is silent on whether a president can face criminal prosecution in court, and the US Supreme Court has not directly addressed the question.

The question looms large with Special Counsel Robert Mueller preparing a report on his investigation into Russia’s role in the 2016 US election, whether President Donald Trump’s campaign conspired with Moscow and whether Trump unlawfully sought to obstruct the probe.

The US Justice Department has a decades-old policy that a sitting president cannot be indicted, indicating that criminal charges against Trump would be unlikely, according to legal experts.

Here is an explanation of the rationale behind the Justice Department policy and whether it applies to Mueller.

In 1973, in the midst of the Watergate scandal engulfing President Richard Nixon, the Justice Department’s Office of Legal Counsel adopted in an internal memo the position that a sitting president cannot be indicted. Nixon resigned in 1974, with the House of Representatives moving towards impeaching him.

“The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” the memo stated.

The department reaffirmed the policy in a 2000 memo, saying court decisions in the intervening years had not changed its conclusion that a sitting president is “constitutionally immune” from indictment and criminal prosecution. It concluded that criminal charges against a president would “violate the constitutional separation of powers” delineating the authority of the executive, legislative and judicial branches of the US government. The 1973 and 2000 memos are binding on Justice Department employees, including Mueller, according to many legal experts. Mueller was appointed in May 2017 by the department’s No 2 official Rod Rosenstein.

But some lawyers have argued that the nation’s founders could have included a provision in the Constitution shielding the president from prosecution, but did not do so, suggesting an indictment would be permissible. According to this view, immunity for the president violates the fundamental principle that nobody is above the law.

Nixon himself in 1977 offered an opposite view when he told interviewer David Frost, “Well, when the president does it that means that it is not illegal.” The Justice Department regulations governing Mueller’s appointment allow him to deviate from department policy in “extraordinary circumstances” with the approval of the US attorney general, the nation’s top law enforcement official. — Reuters