Can a US President Be Indicted While in Office?

Here's why the issue is murky.

President Donald Trump.  Tom Pennington/Getty Images

President Donald Trump can’t be indicted while serving as President of the United States, according to former New York mayor Rudolph Giuliani. However, some constitutional scholars disagree.

Giuliani, who now serves as legal counsel to President Trump, maintains that he has been assured by special counsel Robert Mueller’s team that Trump won’t be indicted while in office.

“They can’t indict. Because if they did, it would be dismissed quickly,” Giuliani said. “There’s no precedent for a president being indicted.”

DOJ Position on Indictment of Sitting President

Giuliani’s assertion is backed by a long-standing policy adopted by the Department of Justice (DOJ). The DOJ’s Office of the Legal Counsel has taken the position that a sitting president is immune from federal criminal prosecution. It most recently reaffirmed this position in 2000.

“The indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” the DOJ concluded.

In reaching its conclusion, the DOJ largely relied on the unique powers granted to and obligations imposed upon the president.

“The severity of the burden imposed upon the president by the stigma arising both from the initiation of a criminal prosecution and also from the need to respond to such charges through the judicial process would seriously interfere with his ability to carry out his constitutionally assigned functions,” the DOJ memo states.

Supreme Court Fails to Reach Issue in US v. Nixon

To date, the issue of whether a sitting president can be indicted and criminally prosecuted has never been adjudicated by the courts. It came close during United States v. Nixon. While both sides submitted briefs, the U.S. Supreme Court never reached the issue.

In defending President Richard Nixon, James D. St. Clair argued that the Constitution bars the criminal prosecution of a sitting president.

Citing Article II, St. Clair wrote in his brief: “The presidency is the only branch of government that is vested exclusively in one person by the Constitution. Since the president’s powers include control over all federal prosecutions, it is hardly reasonable or sensible to consider the president subject to such prosecutions.”

St. Clair also argued that the provision in Article I of the Constitution, which states that an impeached official “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law,” contemplated that the president could be held liable for any crimes only after being impeached. However, the strength of this argument is questionable given that several federal judges have since been criminally convicted before being impeached.

On the other side of the case, Watergate special prosecutor Leon Jaworski highlighted that the Executive Branch has grown dramatically since the Framers drafted the Constitution and now includes far more than one person. He further argued that no provision of the Constitution expressly “imposes any bar to the indictment of an incumbent president.”

However, he acknowledged that the issue is murky.

“It is an open and substantial question whether an incumbent president is subject to indictment,” Jaworski wrote. “Resort to constitutional interpretation, history and policy does not provide a definitive answer to the question of whether a sitting president enjoys absolute immunity from the ordinary processes of the criminal law.”

At this point, it is unclear if President Trump will ever face criminal or impeachment charges. Should they arise, it is likely that the U.S. Supreme Court will be asked to decide the issue.

Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.

Can a US President Be Indicted While in Office?