Legal experts weigh in on whether or not a sitting president can be criminally prosecuted

Legal experts weigh in on whether or not a sitting president can be criminally prosecuted
Official White House Photo by Shealah Craighead

This week, William Consovoy, one of President Donald Trump’s attorneys, appeared before Judge Denny Chen in connection with Trump’s battle to prevent Manhattan District Attorney Cy Vance from obtaining his tax returns (which Vance’s office is seeking as part of a criminal investigation). During their conversation, Consovoy stressed that a sitting U.S. president cannot be prosecuted for a crime while in office —and Vox contacted 16 legal experts to get their views on that assertion.

The U.S. Department of Justice (DOJ) has a policy against indicting a sitting president for a crime, and former special counsel Robert Mueller noted that policy earlier this year when discussing the Mueller Report. But as Vox’s Sean Elling pointed out, it is “policy, not law” — and some of the legal experts Vox contacted noted the difference between the two.

Jessica Levinson of the Loyola Law School, for example, told Vox, “there is nothing in the Constitution that prevents a sitting president from being indicted. There is nothing in Supreme Court opinions that prevents a sitting president from being indicted. All we have is Department of Justice policy based largely on concerns over separation of powers.”

Similarly, Ric Simmons (a law professor at Ohio State University), asserted, “there is almost no constitutional support for the assertion that a sitting president cannot be indicted.” And Peter Shane, also of Ohio State University, told Vox, “Presidents may indeed be indicted while in office. The Constitution does not say otherwise.”

Jens David Ohlin, a law professor at Cornell University, told Vox, “Mueller is faithfully following DOJ policy, but the DOJ policy is just plain wrong.” And Ciara Torres-Spelliscy, who teaches at Stetson University, explained, “to be clear, there is nothing in the Constitution that states that a sitting president cannot be indicted.”

Joshua Dressler, a law professor at Ohio State University, told Vox, “can the president be indicted? The answer to the question is and will remain unknown unless and until the DOJ interpretation of the Constitution — namely, that a sitting president cannot be indicted — is tested in the courts.”

Keith Whittington, a professor of politics at Princeton University law professor, addressed a hypothetical: what might happen if a state prosecutor attempted an indictment of a sitting president?  And Whittington concludes, “the constitutional problems with such a move are even more severe than the prospect of a federal indictment.”

Georgetown University law professor Paul Butler told Vox that because of DOJ policy, Trump “will never be indicted while he is in office…. Even if, to use Trump’s own example, he shot someone on Fifth Avenue, the only remedy would be for the president to be impeached by the House, convicted and removed from office by the Senate — and only then prosecuted in criminal court.”

Miriam Bae of the Brooklyn Law School told Vox that Mueller hasn’t plowed any “new legal ground regarding…. the ability to indict a sitting president.” And according to University of Connecticut law professor Douglas Spencer, “The law has yet to be settled on the question whether a sitting president can be indicted.”

University of Georgia law professor Diane Marie Amann explained DOJ policy, noting, “It is a bedrock principle of the U.S. Constitution that no person is above the law. At times, this bedrock has been subjected to erosion; for instance, by legal doctrines that immunize certain persons in certain circumstances from prosecution. The DOJ policy against indicting the president relies on one such doctrine.”

Francis Hill, who teaches law at the University of Miami, noted, “Mueller stated that a president cannot be indicted for a crime while he is in office, but he did not say that a president cannot be held accountable for his actions while he is in office.”

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