both of which have been in the news recently, especially given the release of the memorandum Kenneth Starr commissioned that was written by Ron Rotunda that concluded there was no constitutional bar to indicting a sitting President.
These are my thoughts, as a result of several decades of teaching the Constitution and Supreme Court decisions to adolescents.
I am not a lawyer, nor do I play one on TV, and last night I slept in my own bed.
First on indictment. There is NO CONSTITUTIONAL BAR to indicting a sitting President. There is actually no constitutional bar to trying a President for a criminal offense. The Constitution offers no such exceptions in its texts, and there is no Supreme Court case that directly addresses the issue. Further, the Court rule that the President can be sued for actions done before he was President with the case proceeding while he was President, and of course such a suit can require him as sitting President to be deposed. Whether the President can be required to testify in a criminal investigation of his actions as President has not yet been adjudicated by the Court since while Kenneth Starr subpoenaed Clinton during the “Whitewater” investigation Clinton agreed to testify voluntarily so the subpoena was withdrawn. Still, the fact that a special counsel investigation of possible criminal actions by the President both before he was President and given the investigation being expanded to include actions around Monica Lewinsky (approved first by AG Janet Reno and later the 3 judge panel overseeing the independent counsel investigation) seems to indicate that a sitting President could be criminally charged.
As to whether a President can pardon himself — people argue that it would be violative of the idea that no man sits in judgment of himself. Similarly, some may argue that the fact one can be excluded as a juror in a case involving one’s relatives, spouse, or friends would indicate that a President should not be able to pardon himself or his family. But (a) the Constitution does not say that; (b) the exclusion of family etc from juries is in many cases statutory; and c) there is one case where the Constitution clearly allows a person to sit in judgment of themselves as I pointed out during the Bush administration. The Constitution says that the President of the Senate presides over impeachment trials except in the case of the impeachment of the President, in which case the Chief Justice presides, and the VP is not even in the chamber. And yet, should a VP be impeached there is no specific constitutional bar to his presiding over his own trial in the Senate. Now, one might argue that by implication if a VP cannot preside over the impeachment of a President because of the implied self-interest (of becoming President upon conviction of the person currently on trial) by implication his self-interest being greater in his own impeachment trial he can be excluded from presiding over it. Except we have something of a parallel situation of a hole in the reasoning when we look at the 22nd Amendment, written after the death of FDR, who had been elected 4 times. The exclusion it places is that a person who has been twice elected President (or elected once and served more than half a term of a predecessor to whose term a VP (or other in succession) had succeeded) was barred from being ELECTED president. But that left open the possibility of BEING president by succession — in other words, CLinton, GW Bush and Obama are all eligible to BE president, they simply cannot be ELECTED to the office through the normal processes. The reasoning on this is that the 22nd Amended specifically cites elections, and the Constitution lists only 3 qualifications for being President — 35, natural born citizen, 14 years residency. The Supreme Court has ruled in a case involving an attempt by a state to term limit Congressmen than no restriction other than what is in the Constitution can be added statutorily, only by amending the Constitution.
Practically, a President could pardon himself and a VP could preside over his own impeachment trial. I would suspect that in both cases such actions would be considered as grounds of removal from office by the Senate — and in the case of the VP remember that the rulings of the presiding officer at an impeachment trial can be overturned by a vote of the Senators.
That they would be considered as grounds for removal does not mean that either a President or VP would therefore be removed. The possibility they might not be demonstrates how tenuous our democratic republic is.
The Constitution is not perfect. It has holes. Whether or not we will ever fix them remains a serious question.
That we are once again coming up with these issues demonstrates how perilous our situation might be.
Again, IANAL. These are my thoughts, my reasoning.
Make of it what you will.