The U.S. Constitution explains how a president can be removed from office for “high crimes and misdemeanors” by Congress using the impeachment process. But the Constitution is silent on whether a president can face criminal prosecution in court, and the U.S. Supreme Court has not directly addressed the question.
Some legal experts have argued that the nation’s founders could have included a provision in the Constitution shielding the president from prosecution, but did not do so, suggesting an indictment would be permissible.
According to this view, immunity for the president violates the fundamental principle that nobody is above the law (which would be in keeping with the spirit of constitutional republicanism).
Unfortunately, the U.S. Justice Department has a decades-old internal policy which argues that a sitting president cannot be indicted, dating back to 1973. In the midst of the Watergate scandal engulfing President Richard Nixon, the Justice Department’s Office of Legal Counsel adopted in an internal memo the position that a sitting president cannot be indicted.
“The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” the memo stated.
The Justice Department reaffirmed the policy in a 2000 memo, saying court decisions in the intervening years had not changed its conclusion that a sitting president is “constitutionally immune” from indictment and criminal prosecution.
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