Matthew T. Mangino
August 24, 2018
The President of the United States can and should be indicted. This week, President Donald Trump’s former lawyer and trusted advisor pleaded guilty to tax fraud, false statements to a bank and campaign finance violations, and implicated the president in criminal activity.
Michael Cohen said under oath in open court that he acted “in coordination with, and at the direction of, a candidate for federal office” and “for the principal purpose of influencing the election.”
Prosecutors allege that” hush-money” payments Cohen arranged for Karen McDougal and Stormy Daniels broke the legal limit on individual donations to a political campaign and violated the law banning corporations from giving directly to a candidate.
According to Politico, candidates are permitted to make unlimited contributions to their own campaign, but that money must go through their campaign committee. Cohen facilitated the payments through an outside company, not the campaign — an unlawful act.
During the Watergate investigation, a memorandum prepared for Special Prosecutor Leon Jaworski concluded that there was no legal bar to indicting President Richard Nixon. The memorandum concluded, “As we understand it, the conclusions regarding indictment of an incumbent president reached by the Department of Justice, the U.S. Attorney’s office, and this office, are all consistent: There is nothing in the language or legislative history of the Constitution that bars indictment of a sitting president.”
Some Constitutional experts have argued that the president should have immunity. If the president were indicted he would be burdened by pretrial matters, the preparation for trial and the commitment of weeks or months in a courtroom.
Constitutional scholar Jonathan Turley suggested in a recent Washington Post piece immunity for the president “ignores a couple practical considerations. First, it is highly unlikely that a president would be tried, let alone convicted, while in office ... Even when sentenced, appeals can take years.”
In May 1998, a distinguished constitutional scholar Ronald W. Rotunda reached the conclusion that a sitting president can be sued or indicted. According to The Atlantic, Rotunda confidentially advised then-independent counsel Kenneth Starr that President Bill Clinton could be indicted. “The U.S. Supreme Court has repeatedly reaffirmed the state(ment) that no one is ‘above the law,’” Rotunda wrote.
Starr’s team concluded that ”(I)t is proper, constitutional and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”
Walter Dellinger, a former assistant attorney general and the head of the Office of Legal Counsel at the Department of Justice, writing for the New York Times, cited Clinton v. Jones. President Clinton had long fought to stop a civil suit brought against him by Paula Jones. The case ultimately reached the U.S. Supreme Court. The entire court agreed that the fact that a federal court’s exercising of its constitutional power to hear a case “may significantly burden the time and attention of the chief executive is not sufficient to establish a violation of the Constitution.”
Dellinger concluded that “the mere indictment of a president would not meet the stringent standard in Clinton v. Jones for presidential immunity from ordinary legal processes.”
The argument that an indictment would be too demanding on a sitting president is further blunted by the 25th Amendment that allows a president to voluntarily transfer powers of his office to the vice-president for a limited period of time.
When asked if a sitting president can be indicted Deputy Attorney General Rod Rosenstein said. ”(T)he Department of Justice has in the past, when the issue arose, opined that a sitting president cannot be indicted.”
The opinion of the Department of Justice is not precedent. The position of the DOJ can change and Rosenstein himself could change the scope of the Mueller investigation. Trump can be indicted. The question is will some prosecutor take the unprecedented action of indicting a sitting president to affirm the notion that no one is above the law?
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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