June 4, 2018

Can the president be indicted?

NY Times, July 2017 - A newfound memo from Kenneth W. Starr's independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?

The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.

"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," the Starr office memo concludes. "In this country, no one, even President Clinton, is above the law."

Mr. Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics whom Mr. Starr hired as a consultant on his legal team, to write the memo in spring 1998 after deputies advised him that they had gathered enough evidence to ask a grand jury to indict Mr. Clinton, the memo shows….

Nothing in the Constitution or federal statutes says that sitting presidents are immune from prosecution, and no court has ruled that they have any such shield. But proponents of the theory that Mr. Trump is nevertheless immune for now from indictment cited the Constitution's "structural principles," in the words of a memo written in September 1973 by Robert G. Dixon Jr., then the head of the Justice Department's Office of Legal Counsel.

This argument boils down to practicalities of governance: The stigma of being indicted and the burden of a trial would unduly interfere with a president's ability to carry out his duties, preventing the executive branch "from accomplishing its constitutional functions" in a way that cannot "be justified by an overriding need," Mr. Dixon wrote. . .

In laying out his case, Mr. Rotunda played down arguments that permitting a president to be indicted would cripple the executive branch. Instead, he placed greater emphasis on immunity issues that the Nixon - and, later, Clinton - legal teams dismissed.

Among them, he noted that the Constitution's speech-or-debate clause explicitly grants limited immunity to lawmakers for certain actions. "If the framers of our Constitution wanted to create a special immunity for the president," he argued, "they could have written the relevant clause."

He also wrote that the 25th Amendment, which allows for temporary replacement of a president who has become unable to carry out the duties of the office, created a mechanism that would keep the executive branch from becoming incapacitated if the president was on trial.

Walter Dellinger, NY Times, Mar 2018 -  One of the perplexing questions of constitutional law is what to do about a sitting president who is suspected of having committed a crime. This much is clear: A sitting president should not be required to submit to a criminal trial, an undertaking that would be incompatible with the duties of the nation’s chief executive.

That should not, however, preclude a grand jury from indicting a president when the facts and the law warrant, even if the trial itself has to be postponed until he or she is no longer in office.

An indictment in this context serves a critically important purpose: Without it, the usual five-year statute of limitations for most federal crimes would elapse, forever precluding a president from being held accountable for potentially serious crimes. Thus, a president should be indictable unless he agrees to waive any future defense that the statute of limitations expired during the president’s term.

There is nothing in the constitutional text or judicial precedent that provides for a categorical bar to the indictment of a sitting president. The closest the Supreme Court has come to addressing the question was in Clinton v. Jones in 1997, in which the issue was whether a president could delay until the end of his term a civil suit by a private individual. I argued Clinton v. Jones for the United States, urging the court to hold that a civil trial would unduly impair a president’s ability to carry out his duties. The court unanimously rejected that position.

In Clinton v. Jones the entire court agreed that the fact that a federal court’s exercising of its constitutional power to hear a case “may significantly burden the time and attention of the chief executive is not sufficient to establish a violation of the Constitution.” Mere indictment of a president would not meet the stringent standard in Clinton v. Jones for presidential immunity from ordinary legal processes.

Zachary Fryer-Biggs,Vox, April 2018 - If Cohen used any of the contacts he made with the Russian government to try to influence the election, he could face state election fraud charges. New York state law bans trying to get a candidate elected by “unlawful means,” and working with the Russians would likely fall under another section of the law that bans interfering with the “free exercise of the elective franchise.”

And if Cohen lied as part of any filings tied to his finances or his work with the Trump Organization, or as part of any of his dealings with investigators, he could face state obstruction of justice charges.

The key question is whether New York prosecutors could find ways of indicting Cohen for crimes different from the ones he was charged for on the federal level. That’s because a Trump pardon wouldn’t simply nullify any potential federal conviction — it would, under current New York law, bar state prosecutors from trying to go after him themselves.

If so, and if they won a conviction in a New York court, Cohen couldn’t look to the White House for salvation.

“None of these [state charges] would be subject to pardon by President Trump,” Cornell Law professor Jens David Ohlin told me.

Federal prosecutors are aware of the double jeopardy risk, and in the case of Paul Manafort, it appears that Mueller may have shaped his charges to leave state prosecutors space to go after him on their own. Mueller may be giving state prosecutors a road map

When Mueller’s office filed charges against Manafort, they included a range of financial crimes. But the charges puzzled some experts because there were several obvious potential cases tied to those crimes that didn’t appear.

Although Mueller added new charges against Manafort in February, there’s still a range of tax and fraud charges that Mueller hasn’t used. That could be because he’s making sure that New York state prosecutors have ammunition in the event that Trump pardons Cohen after a federal conviction.

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