President Trump Cannot Be Indicted


The New York Times has apparently developed a newfound respect for Kenneth Starr’s independent counsel investigation into then-President Bill Clinton.

Recently, Times staffers breathlessly reported that they had unearthed a memo, which according to the newspaper “sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?”

The memo was obtained by the Times using the Freedom of Information Act, and the newspaper is employing the document’s contents in order to contradict what the Times referred to as the “generally held view that presidents are immune from prosecution while in office.”

The left-leaners in this country, which includes most of the mainstream media, Democratic Party, Hollywood, and academic community, are disappointed that the president has not already been impeached and sent back to Trump Tower. They know that the chance of a successful impeachment against the president is slim to none, as is the chance of a conviction after a constitutionally required Senate trial.

Despite the Times and other mainstream media outlets licking their collective chops over the idea of criminally indicting President Donald Trump, such a scenario is not legally or constitutionally possible.

Consequently, the thought of having a prosecutor or special counsel indict the president is basically a fever dream of the left.

One little obstacle just happens to be in the way, and that is a longstanding prohibition on any criminal prosecution against a sitting president.

Enter stage left: The New York Times is holding fast to a document that purports to remove this obstacle and pave the way for a criminal proceeding against the current occupant of the Oval Office.

However, much to the chagrin of those who seek to bring this president down, there is another document from the 1970s that reinforces the traditional view.

The question of whether a sitting president is immune from criminal prosecution is an issue that was briefed and argued before the United States Supreme Court in the case of U.S. v. Nixon.

The presidential immunity matter was not addressed by the Court at the time because the appeal was decided on other grounds. James St. Clair, President Nixon’s lawyer, placed the following in the brief that was filed on behalf of President Nixon.

“It has never been seriously disputed by legal scholars, jurists, or constitutional authorities that a President may not be indicted while he is an incumbent,” the language stated.

According to St. Clair, the president is immune from indictment because the head of the executive branch, who has the entire power to run that branch, cannot be subject to prosecution initiated by that same branch.

A hypothetical sitting president, who would have to deal with the burden of a criminal indictment, would have significant difficulty in carrying out his or her constitutional duties, thus preventing the executive branch from fulfilling its purposes as proscribed by the Constitution.

The case that presidents should be immune from criminal prosecution was made in a 1997 law review article by Yale constitutional law professor Akhil Amar and his then-student, Brian Kalt.

If the president is arrested, according to Amar and Kalt, “so too is the executive branch of the government.”

“Any distraction of the President from his duties is much more significant than similar distractions of these other, prosecutable officials, and has a much bigger impact on the well-being of the nation and all its People,” the two wrote.

A prosecution of the head of the executive branch prior to he or she leaving office would impede the function of the presidency and create an impracticable intrusion into the core responsibilities of the presidency. Unlike Congress or the judiciary, the executive branch is led by one person who must be ready to carry out his or her duties 24 hours a day and 7 days a week.

The correct view, which is held by the Justice Department’s Office of Legal Counsel and most U.S. law professors, is that the president is immune from criminal prosecution either by a federal, state, or local prosecutor, unless and until there is a completed impeachment process and removal from office, or after a resignation takes place.

No special prosecutor in history, including both Leon Jaworski and Starr, has attempted a pre-impeachment indictment of a sitting president.

Also, as St. Clair rightly pointed out, the constitutional provision that sets forth the procedure for impeachment specifically proscribes that prosecution is to take place after an impeached and convicted president has been removed from office. Therefore, the framers of the Constitution intended that a president could not be indicted unless and until he or she is removed from office.

The arguments above are clear and unassailable.

Harvard Law Professor Alan Dershowitz agrees that the president must first be impeached and removed from office before he can be charged with a crime.

Dershowitz definitively stated that sitting presidents cannot be “indicted, prosecuted, or tried while serving in office.”

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