The Register Citizen (Torrington, CT)
What the Constitution says about the power to indict a sitting president
There seems to be some disagreement as to whether a sitting president can be indicted. I should think the Founding Fathers would regard this as a false argument. They were quite clear that the impeachment process they provided for in the Constitution was an indictment process of a sitting president.
They did not see it as a “quasi” indictment process, as I have heard it described, but as a full indictment process, making a reference to it four times in the document: Article I, Section 3, two references; Article II, Section 4; and Article III, Section 1. The Founding Fathers viewed the impeachment process to be similar to a grand jury indictment process, which they were fully aware of, and which they confined to a political arena, namely, to the House and Senate of the U.S. Congress, turning the House into a grand jury and the Senate into a trial court.
Debates on this question are not addressing a constitutional issue, as is believed. They are avoiding the Constitution itself and represent false debates and false discussions. It’s just as false to say that the U.S. Supreme Court has to settle this matter. The Constitution settles it. Since indicting a sitting president is a provision in the Constitution, this is not a constitutional issue. What is at issue is people not recognizing, or showing an unwillingness to recognize, a quacking duck when they are looking at and listening to a quacking duck.
It has been said that a sitting president cannot be indicted for criminal charges. This was not the view of the Founding Fathers. They saw possible criminal charges being part of impeachment charges. In Article II, Section 4, they make a reference to “Bribery,” and also to “high Crimes,” without spelling out what they meant by that term. The latter term was not a reference to “Treason,” because that term is mentioned in Section 4, along with “Bribery” and “high Crimes.”
For the Founding Fathers, political and criminal charges could be impeachment charges, and conviction of them would result in a president being removed from office. Proof that the Founding Fathers felt that criminal charges could be part of an impeachment indictment is the fact, as the first reference to impeachment in Article I stipulates, a president convicted and removed from office could, once out of office, be “libel and subject to Indictment, Trial Judgement, and Punishment according to Law.” In other words, tried in a count of law for criminal acts that were part of the impeachment process and charges.
It has been said by some of President Trump’s supporters that he, as president, could pardon himself. That certainly would not be what the Founding Fathers had in mind. What would be the point of establishing an impeachment process if the president was going to be allowed to overrule it? The Founding Fathers provided two specific ways for a president to be removed from office: being voted out or being removed by an impeachment process.
The question has been raised as to whether the president is above the law. The Founding Fathers would consider this question to be absurd. The president is given functions under the Constitution. None of them have anything to do with the president being “above the law” or acting “outside the law.” The question for a sitting president is whether he is violating the Constitution and his constitutional functions. Engaging in criminal behavior would certainly be in violation of those functions.
Since a sitting president, under the Constitution, can be impeached for political and criminal actions, and be removed from office for such, it would seem he would be acting in an unconstitutional manner if he pardoned individuals who could give testimony against him in an investigation of his own criminal activities. He would not be able to do that constitutionally during an impeachment process that involved the criminal charges. Making the effort to do so would be both an abuse of presidential power and obstruction and both would be impeachable offenses — because the Constitution says the president can “grant Reprieves and Pardons or Offenses against the United States, except in Cases of Impeachment;” and that would seem to include his own impeachment.
However, there is a serious reason for probing this question, because of a policy established by the Office of Legal Counsel in the U.S. Attorney General’s Office that too many take at face value. The OLC policy states that it is unconstitutional for a sitting president to be indicted. This policy is said to be binding on the U.S. attorney general, the deputy attorney general and a special prosecutor. This policy is obviously fallacious and is itself an abuse of the Constitution.
Neither the U.S. attorney general, nor any agency, division, department or official in the Department of Justice can declare
What would be the point of establishing an impeachment process if the president could overrule it? The Founding Fathers provided two specific ways for a president to be removed from office: being voted out or being removed by an impeachment process.
anything to be constitutional or unconstitutional! The Constitution does not invest the DOJ with that kind of power. The federal judicial system determines what is constitutional or unconstitutional. This is a clear usurpation and abuse not only of DOJ power, but also of executive branch power. Even the Congress can’t declare something to be constitutional or unconstitutional.
For the AG, others in his office, and those outside the office who say that an indictment of a sitting president would hamper carrying out the duties of the office, this was not something that was a special bother to the Founding Fathers. They knew full well that an impeachment process would hamper a president functioning in office. But they thought it was imperative to have a means to be able to remove a president from office when the need arose and not have to wait for a presidential election to do so. They were particularly fearful of a president endeavoring to act as a monarch and not having to observe laws, or constitutional or congressional legislative restraints exercising executive power, and having to wait for another presidential election to remedy the situation.