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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?
Prior video on Justice Kavanaugh's law review article:
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