Yes, a President May Be Indicted … and May Pardon Himself

The Trump-Russia “collusion” farce gets everything bass-ackwards.

As we’ve pointed out many times, collusion is not a crime; conspiracy is. To prove a conspiracy, you need more than mere association and collaborative action; you need an agreement to commit a specific statutory violation of penal law. Thus far, there is no indication that an actual crime has been committed.

Under the regulations for special-counsel appointments, there is supposed to be cause to believe a crime has been committed before a prosecutor is appointed. Yet, we have a prosecutor assigned to the case even though there is, as yet, no crime. The Justice Department has given this special counsel, Robert Mueller, carte blanche to hunt for a crime, notwithstanding that his jurisdiction is supposed to be circumscribed by the crime(s) that the Justice Department first specifies in appointing him – i.e., the suspected offenses trigger the appointment, the appointment is not supposed to trigger a search for suspected offenses.

Notwithstanding the lack of probable cause that a crime has been committed, much less any indication that the special counsel contemplates filing formal charges, two new premature questions have arisen: (1) May a president be indicted, and (2) may a president pardon himself?

INDICTMENT

The split in opinions over the first question was well summarized back in May by the New York Times’s Adam Liptak. I must say I don’t see this as a complex question: There is no legal reason why a sitting president should not be indictable. The complexities that attend the question are practical, not legal.

The president is in charge of the executive branch. The Justice Department answers to him. All U.S. attorneys are appointed by him and may be dismissed at will by him. It seems inconceivable, then, that a president would authorize his own indictment; he’d more likely dismiss any federal prosecutor who attempted to indict him. That includes any special counsel. As we have observed, there is no such thing as an independent prosecutor in our federal system. The special counsel is beholden to the attorney general (or the deputy attorney general when, as in the case of Mueller’s investigation, the attorney general has recused himself); the attorney general, in turn, is beholden to the president.

Still, even though these practical hurdles to a president’s indictment seem insuperable, there is no legal bar to the indictment of a president. The Constitution explicitly states (in article I, section 3) that an official who is impeached may be indicted in the justice system for any crimes committed. Some legal experts infer from this provision that a president must be impeached before he may be indicted. But the clause does not say that; it simply says that if an official is impeached, that is not a bar to prosecution.