January 27, 2019

Word: Yes, the president can be indicted for a crime

Laurence H. Tribe, Lawfare - Nothing in the Constitution supports treating amenability to the criminal process as something that kicks in only after a civil officer has been impeached and removed. To treat a sitting president as immune to that process until his presidency ends is to superimpose upon the impeachment framework—a framework designed as the way to remove a president who commits an impeachable offense that might or might not also be a federal crime—something quite extraordinary in a system priding itself on the axiom that no one is above the law.

The fact that the Constitution does indeed embody that axiom is illustrated by the care it takes to grant immunities from the law expressly and with relatively precise contours, rather than by implication and with striking imprecision. Consider, for instance, the Speech and Debate Clause of Article I, Section 6, specifying that senators and representatives “shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses ... and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Note that no such privilege is accorded to the president of the United States and that, even when it is accorded to members of the House and Senate an exception is made for felonies.


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