Can The Sitting President Of The United States Be Indicted?

Michael Cohen, President Trump's former lawyer, implicated Trump in campaign finance violations. NPR's Ailsa Chang speaks with lawyer Philip Lacovara about whether sitting presidents can be indicted in these situations.

AILSA CHANG, HOST:

Now when a lawyer admits his client directed him to commit a crime and then pleads guilty to that crime, the client stands a good chance of being indicted himself, unless, of course, that client is now the president of the United States.

With us now to tease all of this out is Philip Allen Lacovara. He was counsel to the special prosecutors who investigated Watergate, and he argued the Nixon tapes case before the Supreme Court. Welcome.

PHILIP ALLEN LACOVARA: Thank you.

CHANG: So let me just begin by asking you what exactly is the Justice Department's position on indicting a sitting president?

LACOVARA: The Justice Department has taken the position twice that the president is not subject to indictment while in office and that no criminal charges can proceed against him unless he's either removed from office by impeachment or has served out his term.

CHANG: And just to be clear, as a constitutional matter, it's still unresolved whether a sitting president can be indicted, right? This is just a choice the Justice Department made.

LACOVARA: That's right. In the Watergate investigation, we examined that issue quite carefully and reached the conclusion that there is no constitutional bar to indicting a sitting president. It's a matter of discretion whether to file such charges. But the issue is still unresolved because, neither in Watergate, nor in the Clinton years, did any prosecutors press the issue.

CHANG: So why did the Justice Department decide to adopt this categorical policy - not leave it to the department's discretion, but just decide, in all cases, the president - a sitting president should never be indicted?

LACOVARA: They have two basic themes. One is a kind of abstract constitutional theory. Indeed, it's one that the current Supreme Court nominee Brett Kavanaugh seems to accept, and that's the so-called unitary executive theory.

CHANG: Tease that out for me.

LACOVARA: It's the notion that all law enforcement resides in the president and that everybody else in the executive branch, including prosecutors, is essentially irrelevant. And the president, therefore, would in effect be prosecuting himself. And they think that that's a bizarre conundrum which the Constitution shouldn't allow.

CHANG: A very expansive view of executive power.

LACOVARA: It is. The other theory is a practical one, and that is that it would be too much of a distraction from the president's important duties as chief executive to force him to defend himself in court.

That argument the Justice Department continues to adhere to, even though in the Paula Jones case, the Supreme Court unanimously rejected the exact same argument when President Clinton argued that he shouldn't be allowed to be dragged into court.

CHANG: OK. So while a president is in office, it sounds like it's department policy not to indict him or her. But once the president leaves office, all bets are off.

LACOVARA: All bets are off, indeed. There's only one practical problem that might arise, and that's the statute of limitations.

CHANG: Right.

LACOVARA: For most offenses - federal offenses, there's a five-year statute of limitations. President Trump has already announced that he is running for re-election in 2020. And if he were to be re-elected, his term would not expire until January of 2025, by which time any responsibility for things that he did during the campaign or any obstruction of justice that he may have committed during or preceding the Mueller investigation would be time-barred. And so he would escape culpability entirely.

CHANG: So it's clear that you have thought a lot about this. What do you think? How should transgressions by a sitting president be handled during his presidency?

LACOVARA: For me, the bottom line, as somebody who's been in and around government for five decades, even the president is subject to the law and is equal under the law. And there was an irony in Watergate that President Nixon, but Nixon alone, was pardoned when his co-conspirators all went to prison.

We have, at the moment, the same irony today with Michael Cohen pleading guilty to committing a federal felony. It seems to me a matter of questionable public policy to give the primary malefactor immunity while the subordinate, Michael Cohen, is facing a prison sentence of between four and five years.

CHANG: Why should Cohen take the fall if it's true that he was directed by the president himself to commit the crime?

LACOVARA: Yeah. And I think the bottom line here is that the framers of our Constitution knew how to confer immunities when they wanted to, and they said that members of Congress have a short-term immunity while they're attending legislative sessions. They didn't do that with respect to a president.

The whole purpose of the Revolution and our Constitution was to treat officials of our government as different from the royal in England. And I think they would be astonished at the notion today that the president is somehow immune from criminal prosecution if he violates the norms that apply to everyone else.

CHANG: Philip Allen Lacovara served as counsel to the Watergate special prosecutors. Thank you very much.

LACOVARA: You're very welcome.

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