I begin this by noting I am not a lawyer, and do not claim to be knowledgeable about relevant Court precedents, Supreme Court or otherwise, other than the precedents in Nixon v US (about submission of tapes which would apply to submission of documentary evidence — but then again subpoenaed documents are NOT protected by the 5th Amendment) & SCOTUS requiring Bill Clinton to sit for deposition in civil suit brought by Paula Jones (remember, he voluntarily sat for interview by Ken Starr’s lawyers for grand jury).
This is a think piece.
It will make Constitutional arguments.
It is intended to be a starting point for conversation, if people are so inclined.
Let's start with several key facts.
There is a Justice memorandum/opinion which argues that a sitting President cannot be indicted. I think that is wrong, and I will explain why.
There is no such memorandum/policy with respect to the Vice President: not only did Spiro Agnew resign and plead nolo contendere on the charges brought during Watergate, but there is the earlier precedent of the treason trial of sitting Vice President Aaron Burr (who was acquitted).
The only restriction on arrest/questioning listed in the Constitution is of Representatives and Senators, and it appears in Article I Section 6:
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Setting aside the Speech and Debate portion, even a sitting elected Congressional figure can be arrested even whlle congress is in session or going to and from for Treason (as defined in the Constitution, the only crime so specifically defined), a felony (and there is no distinction listed between a state and a federal felony), and breach of the peace (which is not specifically defined, but has included illegal protests at the South African Embassy during the time of apartheid when more than one Congressional elected was arrested).
Next, even if for sake of argument we grant validity to the DOJ policy, that would only apply to actions of the US Department of Justice, and because of Federalism would NOT apply to indictment by state authorities (the question of whether a trial of a sitting President could occur even in state court is a separate issue from indictment).
Next, there is a question of statute of limitations, which require most Federal charges to be brought within 5 years (in some case less) of commission of the offense. An opinion/policy by the Department of Justice cannot change a legislatively established statute of limitations, so unless you are going to argue that the clock on the statute of limitations would be considered frozen by a Supreme Court dominated by people who tend to look at strict construction and original meaning of Constitutional texts and interpret statutory language accordingly, allowing no indictment of a sitting President is tantamount to exempting him from legal accountability, even if a one-term President, either for crimes committed before entering office (which may be relevant in the case of Donald Trump) or which have statutes of limitation shorter than 5 years.
I recognize that there is no specific Constitutional language addressing the issue of charging the President, but I think given the specific protections of Congressmen and Senators and the lack of specific language similarly protecting the President, as well as the problem with statutes of limitations, a strong case can be made that the President is not immune from arrest, which means he would not be immune from indictment
Next comes the issue of whether he can be tried. Once charges have been brought, the requirements of statutes of limitations is met, but then there becomes the issue of speedy trial as specified in the 6th Amendment, which clearly applies to Federal cases and by incorporation to state cases as well. A defendant can waive his/her right to a speedy trial for a variety of reasons, and one might argue that the current structure of military command of necessity would give the President sufficient grounds to do so in either Federal or state cases.
But I would argue that the Constitution now provides a solution to this problem, in the form of Sections 3 (voluntarily by the President) and Section 4 (by the VP and a majority of the cabinet) for the President to temporarily step aside or be removed from exercising his powers as President. This can occur without impeachment. The text of Section 4 merely states that if the necessary officials determine that the President is “unable to discharge the powers and duties of his office” but does not restrict them in making that determination (there is a process for a President to appeal such a determination to Congress). Then again, there is no requirement for any accused to attend his judicial proceedings — most recently we have seen Paul Manafort waive his right to appear at several hearings. There have been defendants barred from courtrooms for disruption (although I believe video conferencing allows them to see what is going on). A President COULD choose to continue exercising his powers (because he is innocent until found guilty beyond a reasonable doubt). And certainly were we considering only Donald Trump (which should NOT be the basis of making a determination) he could easily attend Court and address the most important issues of his office by simply giving up his “executive time” (aka tweeting and watching tv, to say nothing of golfing — and there is no reason a court could notsit on weekends as a means of accommodating Presidential responsibilities).
Given the idea of being innocent until proven guilty, even though the Constitution might allow the cabinet and VP to remove a President’s powers during a trial, my sense is that the Congress would not support such an effort and even an originalist and strict constructionist Supreme Court would find a way to rule that a sitting President cannot be forced into a criminal trial (even though he could be required to give a deposition under penalty of perjury, but with 5th Amendment protections against sellf-incrimination, which might make the entire process moot).
I’m not sure the Founders ever really thought through the idea of charging/arresting a sitting President. On the one hand, they all knew Washington would be the first President and basically they trusted him to define the office On the other, there is evidence that they expected one or more of his successors would be impeached/removed from office, so perhaps that is why they did not offer words about criminal indictment/arrest/prosecution. And remember, the language about presentment or indictment is in the 5th Amendment, not part of the original Constitution, and there is NO EXCEPTION for anyone listed — when combined with the language of Article I it seems clear that even if there are limits for arresting a Congressman or Senator, there are NOT limits on indicting them.
I would argue that unless you can clearly determine that the clock on statute of limitations is held while a President serves his term, the notion that no man is above the law would mean there is no CONSTITUTIONAL bar to indicting a sitting President on Federal charges, and there has NEVER been a bar to a state indicting a President. This would apply not only to offenses committed while President (for example, tax and bank fraud can be committed by a sitting President), but for offenses committed before assuming office.
These are just a few of the thoughts rattling around my brain this Sunday afternoon.
Make of this what you will.
Peace.