Some Consequences of Deciding that Trump Cannot be Prosecuted in Office
Once again, Rudy Giuliani has filled the headlines with loose talk of his conversations with Mueller and his staff. He now reports that a member of Robert Mueller’s team confirmed that Mueller will not indict President Trump. Giuliani has demonstrated that there is little reason to take him at his word in his representation of Trump. Giuliani’s statement, however, reflects the consensus view that Mueller will adhere to Justice Department legal policy, which precludes indictment of a sitting president (though Mueller and Rod Rosenstein retain authority to surprise the experts). Whether Mueller or an assistant informed Giuliani that he would not indict Trump will remain unknown for now, but it is worthwhile to review some consequences of a decision that indictment is not an option.
First, it bears emphasis that a president can be indicted after leaving office, whether through resignation, impeachment, or loss of an election. Indeed, Article I, sec. 3 of the Constitution expressly states that an officer of the United States who is removed from office through impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
A prominent lawyer opined on Twitter that Mueller may have told Giuliani that he would not indict Trump as part of negotiations to convince Trump to agree to an interview. The lawyer reasoned that since Mueller would not pursue a criminal indictment, Trump would be unable to plead the Fifth Amendment in refusing to answer questions. That’s simply incorrect, since Trump’s criminal exposure can extend beyond his term in office. So long as he retains criminal exposure, the Fifth Amendment affords him the right to remain silent.
Others have suggested that regardless of whether Mueller would indict Trump, state prosecutors would be able to do so. While that proposition leads to uncharted waters, it seems fairly clear that the Constitution cannot tolerate state criminal prosecution of a sitting president. Imagine the burden on a presidency if every state attorney general or local district attorney could bring criminal charges against a sitting president. States can charge presidents once they are out of office.
Sen. Richard Blumenthal, among others, has opined that even if we accept that a sitting president cannot be tried for criminal violations, he can be indicted while in office and tried after he leaves office. That approach, however, would cripple the presidency for however long it lasted. The president would have no way of lifting the taint of a criminal indictment, unless he submitted to trial. The nation would suffer under a diminished leader.
Moreover, that approach could run afoul of the statutory and constitutional guarantee of a speedy trial. Those rights can be waived, but a waiver must be voluntary. A president who expected several more years in office would face the dilemma of giving up his right not to be tried while in office (there is debate over this right, but the president can legitimately rely on the Justice Department’s reading of the Constitution) or his right to a speedy trial. While an indictment would avoid statute of limitations concerns, it would trigger speedy trial concerns.
If Trump knows that he will not be prosecuted while in office, he can postpone the decision whether to pardon himself until the last days of his presidency. Word leaked many months ago that Trump’s lawyers were looking into his power to pardon himself and others. The pardon power has not been limited and surely permits Trump to pardon all of his associates. No president, however, has ever attempted to pardon himself, and I suspect a court would find such a pardon a bridge too far. While all pardons create some tension with the rule of law, the self-pardon is by its very nature a complete rejection of the rule of law. It would allow a president to do anything (shoot someone on 5th Avenue) and get away with it. That’s fundamentally inconsistent with constitutional government.
Whether or not a sitting president can be indicted should not affect whether he can be subpoenaed to testify before a grand jury or court, so long as his testimony is relevant to a legitimate criminal process that may involve actors other than the president. The question whether the president can be subpoenaed is complex for other reasons, but the weight of authority suggests that he would have to comply with a grand jury subpoena, at least.
Past presidents from Jefferson to Nixon have complied with subpoenas for documents. Compelling the president’s appearance before a grand jury or court is a step further. In the modern era when travel is not a burden – and particularly when the grand jury sits in D.C. – logistics are less problematic. Bill Clinton, nonetheless, resisted appearing in person before a grand jury, but when Ken Starr obtained a subpoena Clinton agreed to testify without service of the subpoena, thereby preserving for future presidents the argument that concerns about separation of powers permitted a president to defy a subpoena. The better argument holds that a president cannot interpose a blanket objection to a subpoena, but may raise objections of relevance and privilege in response to particular questions.
Not long ago, Giuliani claimed that Trump had been informed that he was not a target of the grand jury. Trump celebrated without cause. People can be grand jury witnesses, subject, or targets. It’s best not to be any of those things, but being a witness is best. That means that you are believed to have information relevant to the grand jury’s investigation. A subject is someone whose conduct is under investigation by the grand jury and a target is someone who is a “putative defendant.” Nobody wants to be a subject, but everyone would rather be a subject than a target. Subjects, of course, can become targets. Arguably, if the president cannot be indicted, he cannot be a putative defendant and, therefore, cannot be a target.
The president, however, can be an unindicted co-conspirator, even if he can’t be indicted. The grand jury named Nixon as one and the grand jury could do the same with Trump. The Justice Department has a policy against identifying unindicted co-conspirators, usually referring to them by generic descriptors. Concealing Trump’s identity, however, could prove challenging.
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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.