Here's How The Courts And Constitution Support Indicting A Sitting President.
Updated: Dec 11, 2018
The US Constitution uses the word impeachment six times. Indictment is mentioned once along with charged so technically twice. It doesn't use a version of the word like "impeach" or "indict" either. So they're limited to six references and two references respectively. We're going to go through all eight to prove that the Constitution allows for the indictment of a sitting President and that THE COURTS HAVE UPHELD THAT STANDARD SINCE THE BEGINNING OF GOVERNMENT UNDER THIS CONSTITUTION. (Before that America was governed under another Constitution called The Articles Of Confederation.) Once we've gone through all eight references we'll show how they've been interpreted by the courts to show that a sitting President can be indicted.
1. Constitution says: "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment." (Yes they spell choose differently.) This clause merely indicates that the House of Representatives is the only group that can impeach someone at the federal level. This is typically done by a committee votes and then a full House vote. A majority is necessary to go forward.
2. Constitution says: "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present." This clause states that the Senate alone is where impeachment cases are tried and they require 2/3 supermajority of senators voting to convict. It also singles out the President stating that the Presiding officer of such a trial is the current Chief Justice of the United States.
3 and 4. Constitution says: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." This clause states that impeachment will remove an office holder and can disqualifies them from holding any further office. It also indicates that they may be indicted, tried, convicted, and punished by the regular justice system.
5. Constitution says: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." This merely states that the President cannot stop impeachment with the pardon power. He may however, use his pardon power to stop the the normal criminal justice system.
6. Constitution says: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." This clause is incredibly important. It indicates that the President, Vice President, and all "Civil Officers" may be removed by impeachment for "High Crimes and Misdemeanors."
7. Constitution says: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." This clause merely indicates that all criminal trials should be by jury. The one exception is impeachment, which for federal officers requires the senate to be the jury.
8. Constitution says: "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." This means that States must hand over fugitives running from indictment in another state. For example if someone was indicted by New York State for running a fake charitable foundation that they've already been sued for, and they fled to a red state. Well, that red state would have to hand them over to New York for trial.
So How Does This Mean That A President Can Be Indicted? How Have The Courts Viewed This?
In Number 6 on our list Presidents, Vice Presidents, and Civil Officers are grouped together. So let's see how they have been treated over the years by the criminal justice system. Let's check out former federal judge Mark Fuller. Charged in 2014. Resigned in 2015. Then there's judges: Jack Camp, Samuel Kent, Robert Collins, and Harry Claiborne. Some of them were even imprisoned and paid salaries while still on the bench (they all were impeached and convicted or resigned while in prison). Spiro Agnew There are more cases. Vice President Spiro Agnew plead guilty and resigned on the same day. Had he stayed in office he would've been indicted while in office. Most non-judge and non-elected federal officials leave office before they are charged. The Constitution includes federal judges, executive officials, the Vice President and the President in the SAME category for impeachment. There has NEVER been a question that any of the others can be indicted, since courts have upheld all of these cases without any serious challenge to their authority to indict, try, convict, and sentence. Yet there is a question for a President. Go Figure.
For more of this bullshit, that impeachment is the only "specific remedy" for a President look to Congress. The House and Senate have specific expulsion remedies within the Constitution for their members. Yet sitting House members Chris Collins and Duncan Hunter are under indictment. Senator Menendez was recently tried.
US Justice Department Policy states that a sitting US President may not be charged. Such a policy could be changed and it is not binding on State or Local Prosecutors.
Simply put, holding any office in the United States doesn't offer any protection whatsoever from legal indictments and trials by prosecutors. And US Justice Department policy doesn't bind State and Local Prosecutors. The Supreme Court may just make up stuff, we've seen Bush vs. Gore before, but now you know what the Constitution actually says and how it's been interpreted throughout American history.