× Expand Michael Vadon and Nick-D During the 1973 Watergate crisis involving Richard M. Nixon, a lead editorial in ‘The Progressive’ asked, “Will we permit our highest and most powerful office—an office whose occupant can literally decide the future and even the survival of the nation and the world—to remain in the hands of a man who has, in the words of the American Civil Liberties Union, ‘made one thing perfectly clear: He will function above the law whenever he can get away with it?’ ”

Can a sitting President be indicted? The reckless behavior of Donald Trump, our 45th chief executive, has sparked renewed debate on a question that is decades old.

According to two lengthy memoranda prepared by the Justice Department’s Office of Legal Counsel (OLC)—the first drafted in 1973 in response to President Nixon and Watergate, and the second in 2000 in response to the multiple scandals that triggered the impeachment of President Clinton—the answer is no. On both occasions, the OLC determined that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

The proper remedy for dealing with a wayward President, the counsel reasoned, is impeachment. Only after impeachment and removal should criminal prosecution be allowed.

While the OLC analyses do not have the force of law—they are, in fact, only advisory in nature and no court has ever weighed in on the question—it’s fair to say that most constitutional scholars view its position as correct.

Nonetheless, there are and have been notable dissenters.

Both Watergate special prosecutor Leon Jaworski and Clinton-era independent counsel Ken Starr believed sitting Presidents could be indicted, although each opted not to do so. Jaworski settled for something of a compromise, in 1974 naming Nixon as an unindicted co-conspirator in the Watergate cover-up. Nixon was later preemptively pardoned by his successor, Gerald Ford, for all Watergate-related federal crimes.

And in a December 2018 op-ed in the Boston Globe, Harvard Law School Professor Laurence Tribe contended that the Constitution actually rules out complete immunity for sitting Presidents, especially those who accede to office by illegal means.

“Our Constitution’s framers,” Tribe wrote, “were openly concerned with the possibility that a corrupt politician might contrive to win the presidency by treason, bribery, fraud, or other criminal means.” Any other conclusion, in Tribe’s view, “would subvert the way our Constitution makes good on the promise that, under our system of government and indeed in any constitutional democracy, no one is above the law.”

So, what about Trump? In his op-ed, Tribe claimed that the U.S. Attorney for the Southern District of New York “has laid the predicate for indicting the President” in the prosecution of Trump’s former lawyer and personal fixer, Michael Cohen.

Among the offenses Cohen pleaded guilty to in August were two counts of violating federal election law by issuing payments of $130,000 and $150,000, respectively, to porn star Stephanie Clifford (aka “Stormy Daniels”) and former Playboy model Karen McDougal to silence them about their affairs with Trump. Cohen admitted in open court that the payments were made at Trump’s request to influence the outcome of the election.

In the sentencing memo filed in Cohen’s case in December, the U.S. Attorney treated Cohen’s admission as true, writing that Cohen “acted in coordination with and at the direction of” Trump, who is referred to in the memo as “Individual-1,” and described as a one-time candidate who became president. “As a result,” the memo continues, “neither woman spoke to the press prior to the election.”

If Trump actually ordered the hush-money payments, he would be guilty of conspiracy and technically liable to prosecution and possible imprisonment every bit as much as Cohen, if not more so as the mastermind of the operation.

Exactly where this leaves Trump, however, is unclear. William Barr, Trump’s nominee to replace Jeff Sessions as the next Attorney General, appears poised to adhere to the Office of Legal Counsel position on presidential prosecutions. Testifying before the Senate Judiciary Committee January 15, Barr said, “For 40 years the position of the executive branch is that you can’t indict a sitting president.” Acknowledging that he hadn’t read the Office of Legal Counsel memos in years, he added, “I see no reason to change them.”

There is one other possibility and it is a potential blockbuster—that unbeknownst to either Trump or Barr prior to his confirmation, the U.S. Attorney has already lodged a conspiracy charge against Trump in a sealed indictment.

In a column published December 18, CNN legal analyst Paul Callan argued that proceeding against Trump by way of a sealed indictment would be “the best move” federal prosecutors could make. Doing so, he said, would not run afoul of the Office of Legal Counsel’s policies because the actual prosecution would be delayed until Trump leaves office in January 2021 if he isn’t reelected. Filing charges now, Callan explained, would toll (i.e., hold in abeyance) the five-year statute of limitations that would otherwise apply to Trump’s misdeeds.

“Our Constitution’s framers were openly concerned with the possibility that a corrupt politician might contrive to win the presidency by treason, bribery, fraud, or other criminal means.”

There is no way to know, of course, that such a sealed indictment exists. It also remains to be seen whether Barr would try to quash a sealed indictment after he is confirmed.

To complicate matters, Buzzfeed alleged in a story last week that Cohen has told special counsel Robert Mueller that Trump directed him to lie in his 2017 testimony to Congress about Trump’s plans to build an office tower in Moscow. If true, the president would be guilty of the additional crimes of witness-tampering and subornation of perjury.

In a rare and cryptic press release, Mueller’s office has disputed the accuracy of “specific statements” contained in Buzzfeed’s story. Buzzfeed has asked the special counsel for clarification, but in the meantime is standing by its reporting.

Cohen, for his part, has promised to “tell all” on February 7, when he is slated to appear before the House Committee on Oversight and Reform to testify publicly on live TV about what Trump asked him to do.

So, stay tuned. This could be the biggest thing since Watergate.

Author update 1/24/19: On January 23, Cohen postponed his congressional testimony, citing Trump's alleged threats to prosecute Cohen's father-in-law.