Is Donald Trump Above Indictment?

If Special Counsel Robert Mueller finds evidence of wrongdoing on the part of Donald Trump, can Trump be indicted? His supporters, including Trump’s personal lawyer, Rudy Giuliani, emphatically say, “No.” Many of Trump’s opponents say a confident “Yes.” The more accurate answer to whether Trump could be indicted lies somewhere in between.

Since 1973, according to Warren Richey of the Christian Science Monitor, “The Justice Department’s Office of Legal Counsel has maintained a policy that a sitting president may not be prosecuted or indicted.”

But this does not mean that the president is above the law. Most people are aware that when a president is found guilty of serious wrongdoing or commits a breach of public trust, the Constitutional remedy would be impeachment by the House of Representatives. Impeachment is akin to indictment, and would be the first step in the process of removal from office, which could then lead to criminal prosecution. Though impeachment is akin to indictment, we’ve learned from the Clinton years that impeachment does not necessarily mean removal from office.

Following impeachment by the House, (and still prior to removal from office), the next step would be a conviction by the Senate. Here’s what the U.S. Constitution says about impeachment:

“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.” (U.S. Constitution, Article 1, Section 3, Clause 7)

One could interpret the above clause this way: Impeachment does not go beyond removal from office and disqualification from holding any future public office. But if the president is impeached (by the House), convicted (by the Senate), and removed from the office of the Presidency, he or she could then be indicted, stand trial, and receive punishment in a regular court of law.

During the Clinton administration, the policy that a sitting president could not be indicted or prosecuted was reaffirmed, with this statement: “The policy seeks to insulate the nation’s chief executive from prosecutorial pressures that would ‘impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.’”

It’s true that we would not want a president, perhaps especially Donald Trump, to be distracted by the pressures of an indictment or a prosecution. This could place Americans at peril and jeopardize many aspects of our government’s workings.

On the other hand, if a president were found guilty of wrongdoing or of breaching public trust, would we really want that president to continue his or her duties as our leader? This answer is undoubtedly not clear-cut; for those who would support Donald Trump’s indictment, the answer is a simple “No.” But for those who support Trump, even an indictment and subsequent prosecution would likely not be enough to deter their backing.

Rudy Giuliani says Mueller won’t indict Trump | Fox Business [2018-05-16]

Senator: Giuliani is wrong. Trump can be indicted. | CNN [2018-05-16]

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