NYT, May 29: Can a sitting President be indicted?

[pnwmom]

Professor Laurence Tribe, a Constitutional law prof at Harvard, is among those who say the issue hasn't been decided, but opinions differ on the subject.

In this situation, however, I'm wondering what would prevent a state or Federal Grand Jury from indicting, if the prosecutor and Judge agreed -- other than the Judge's fear of the decision being overturned in a higher court?

https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html?partner=rss&emc=rss&smid=tw-nytpolitics&smtyp=cur&_r=1

The prevailing view among most legal experts is no. They say the president is immune from prosecution so long as he is in office.

SNIP

The most prominent dissenter from the prevailing view is Eric M. Freedman, a law professor at Hofstra University and the author of a 1999 law review article that made the case for allowing criminal prosecution of incumbent presidents.

Professor Freedman demonstrated that the issue had divided the founding generation and argued that granting sitting presidents immunity from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.”

He pointed out that other federal officials who are subject to impeachment, including judges, have been indicted while in office. Courts have rejected the argument that impeachment is the sole remedy for such officials.

SNIP

A year later, Leon Jaworski, the Watergate special prosecutor, took a less categorical position.

“It is an open and substantial question whether an incumbent president is subject to indictment,” he told the Supreme Court during his successful quest to obtain the White House recordings that contributed to Nixon’s resignation.

[bettyellen]

1. If nothing else, I'm grateful for Louise Mensch for putting this bug in our ears!

[MelissaB]

5. Yes, and it seems the media is pivoting and actually asking the question.

1st step.

If they are asking, they have to know.

[DDySiegs]

2. Let Us Suppose, for the Sake of Argument that a Sitting President Can't be Indicted

Consider then the continuing suggestions that that the pertinent Federal Grand Jury (Juries) are considering RICO charges. RICO stands for Racketeer Influenced and Corrupt Organizations Act. The very name of this Act should strike fear in the heart of the White House. For this discussion the key word is "Organization"-- this word by itself almost guarantees that any indictment under the Act involves a criminal conspiracy of some sort. A feature of conspiracy indictments is that in addition to the named defendants (alleged conspirators), there can also be named others as "un-indicted co-conspirators". Since the grand jury votes for the indictment, and does not just name defendants, if an un-indicted co-conspirator is named in the indictment, the grand jury would have to have approved that designation.

Thus if Trump is named as a co-conspirator in such an indictment, the damage to his position would be no less than if he were actually named as a defendant. (After all he can't be tried on the charge of conspiracy during his incumbency in any event.) Also if Trump is named as an un-indicted co-conspirator on a charge that rises to the level of high crimes and misdemeanors, the Republicans in Congress would "have" to take note, and could not avoid the impeachment question on the claim that the charges were merely a Democratic "witch hunt". In the circumstances, the Republicans would be skating on much thinner ice than they are already on if they refused to allow the Congress to institute impeachment proceedings.

Accordingly, I'm not sure we should worry too much about whether Trump can actually be indicted.

[pnwmom]

4. Good point. And Richard Nixon was an "unindicted co-conspirator" and that

was the beginning of the end.

Welcome to DU, DDySiegs!

[msongs]

3. exactly which item in the constitution says a president is above the law? nt