Lawsplainer: Can the President Be Indicted?

Can the sitting president be criminally indicted? This is a tricky legal question with no easy answer. Scholars, lawyers, and pundits are divided on the issue. It's never been definitively settled. Why? The Constitution is not explicit on the issue. The Supreme Court has never ruled either way.

There is a consensus that a president can be impeached and then tried for crimes, but whether a prosecutor (state or federal) could circumvent the impeachment process and go straight to indictment is an open question.

Recent news, makes this question incredible relevant. For the first time, federal prosecutors have explicitly linked President Trump to illegal activity conducted by his attorney/fixer Michael Cohen (not to mention his campaign chairman being convicted on multiple counts that may also be tied to the President). Usually, when a lawyer admits his client directed him to commit a crime and then pleads guilty to that crime, the client stands a good chance of being indicted himself. But what if that client becomes the president of the United States? The question of INDICTMENT as opposed to IMPEACHMENT is relevant once again.

TABLE OF CONTENTS
1. What guidance can the memos from the office of legal counsel offer to the question? Why do some of the memos say that a president can be criminally indicted, while others say he cannot. One must take OLC memos with a grain of salt because they may be biased in favor of the party that commissioned the memos in the first place.

2. What does the jurisprudence of the Supreme Court have to say on the matter? There are two relevant Supreme Court cases (US v. Nixon and Clinton v. Jones) that should be considered. In my opinion the logic of these cases leans very heavily in favor of the president being susceptible to criminal indictment. Clinton v. Jones in particular stands for the proposition that the president can be sued civilly. If the president must stand for a civil lawsuit, surely he must be required to stand for a criminal trial.

3. If the OLC memos and Supreme Court precedent don’t answer the question, what policy arguments should we consider?

Welcome to Lawsplainer; a new series on this channel where I try to explain the law that governs our lives. If you have suggestion for the next topic leave your comment below.

And if you disagree, be sure to leave your comment in the form of an OBJECTION!

Remember to make your comments Stella-appropriate. Stella is the LegalBeagle and she wields the gavel of justice. DO NOT MESS WITH STELLA.

All clips used for fair use commentary, criticism, and educational purposes. See Hosseinzadeh v. Klein, 276 F.Supp.3d 34 (S.D.N.Y. 2017); Equals Three, LLC v. Jukin Media, Inc., 139 F. Supp. 3d 1094 (C.D. Cal. 2015).

Typical legal disclaimer from a lawyer (occupational hazard): This is not legal advice, nor can I give you legal advice. Sorry! Everything here is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Nothing here should be construed to form an attorney client relationship. Also, some of the links in this post may be affiliate links, meaning, at no cost to you, I will earn a small commission if you click through and make a purchase. But if you click, it really helps me make more of these videos!

========================================================

★ Tweet me @legaleagleDJ

[maidden]

That was some great shade right there at the end.

[-_IT_-]

I like how you made the transition into your sponsor plug!

[MrPhilsterable]

I love getting an objective analysis of complex legal issues without getting bogged down in political pandering. This is a fascinating legal question to consider.

[xsquaredthemusician]

that. transition. into. sponsor. plug. l. m. f. a. o.

[Suppostrophe]

“So they can run a profitable business that never has to file for bankruptcy.” Such a sick burn delivered so casually! Masterfully done. ;)

[Quonzer]

If you ever do an episode on Fair Use then I think it'd help a lot of people.

[TheRepublicOfUngeria]

If your duties cannot be performed without breaking the law, either the law needs to be changed, or you should not be performing those duties.

[jayit]

To say that a President is so singularly important that they are above the law is essentially calling them a king, the very opposite intent that the office was founded upon.

[EviYshi]

"Learn something useful--not politics."
My favorite quote of this video. Well done!

[jtrev]

Always appreciate your videos, You rock!!

[ClassicRoc]

I grew up thinking no one is above the law. Even the president.

[Blue-nojt]

I remember when I was in law school, I had these two classmates who were very open about their desire to go into politics. Unsurprisingly, they were two of the fakest, most elitist, and most dishonest people I've ever met in my life. None of my classmates with any semblance of leadership, intelligence, and integrity were remotely interested in going into politics. The two future politicians were charismatic though, I'll give them that, at least as long as you don't have to spend more than 2 minutes in a room with them.

[silent]

Coming back to this video brings tears to my eyes.

[danielbudney]

My take on it is that Congress's job is to *write* the laws which "no one is above." I believe the Constitution laid out the Impeachment process the way it did so that no lower body could remove (or impede) a sitting President ... with the expectation that Congress would immediately investigate and impeach any violation of the law as interpreted by Congress. To my mind, there are two critical clues: (1) the Constitution makes reference to independent indictment for a crime as a process which follows removing the president from office -- a step which wouldn't be necessary to follow impeachment if the intent was for indictment to be a process wholly unaffected by office -- and (2) the founding fathers were working in an atmosphere of independent States giving up power to a higher authority, and needing to convince them to sign on board. These were inspired, shrewd men, and they would have realized the risk posed by spurious local claims -- potentially crippling the political power of an appointed official purely for the sake of crippling that political power. To mitigate this, I believe they intentionally placed impeachment before indictment, and defined impeachment in a way which required political unity among Congress -- shielding the president from rogue factions in either federal or state government, allowing the Executive branch to pursue its duties. Mind you, I recognize that the Constitution is a living document, and as our country's morals evolve, the Constitution may be rewritten to support one viewpoint or another. I'm just talking about what I *believe* was the intent of the original framers -- nothing more.

[mav]

Feels like this is the last channel that is not somehow politically motivated. Thanks for that.

[freddiedejesus]

As a sitting Vice President, Aaron Burr literally killed Hamilton during an illegal duel and was not indicted.

[quinnreverance]

As a left leaning moderate, I appreciate the bi-partisan nature of this Video. Hard to find informative video like this. I personally don’t like President Trump, but I will always respect, obey, and adhere to the proceedings of law. Thank you, sir!!

[love-hammer]

Immunity is dangerous. Just have the VP stand in whenever the president is "too busy." We're learning how much of the president's job is delegated to others from the shear amount of tweets Trump puts out in a day. The dude is not busy. He just needs to exist to give orders and approve the ideas of others.

[maryrufin]

Where were you when I was in college?! Everyone needs this channel in their life.

[bplup]

Everyone: "The executive branch is too powerful."
Judicial Branch: "Am I a joke to you?"