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.

The upshot is this: The status of being president does not provide immunity from prosecution.

As I explained in Faithless Execution, when executive misconduct is at issue, the Constitution’s main check is impeachment. But impeachment is a political remedy, not a legal one. It provides no double-jeopardy protection against criminal indictment. The political proceeding is vitally different from the legal one. Impeachment is about removing political power from a public official. Prosecution is about punishing an individual – i.e., depriving him of liberty or property – for violations of law, regardless of whether he also happens to be a public official.

Because the status of being president must not be construed to confer an immunity that would permanently foreclose prosecution, it seems to me that the statute of limitations demonstrates why sitting presidents cannot have immunity from indictment.

Most federal offenses have a five-year statute of limitations. Let’s say X committed a crime in 2013, but the FBI did not discover the crime until 2017, the year after X was elected president. If a president could not be indicted while in office, that would mean no indictment until 2020, or even 2024. But the statute of limitations on the 2013 crime would by then have expired (in 2018). In effect, the status of being president, if construed to prevent indictment, would effectively have nullified the charge. There is nothing in the Constitution that suggests the president’s status was meant to confer such an advantage, which no other office-holder or citizen gets. Consequently, I am confident that a president may legally be indicted (even though, again, I don’t believe it would ever actually happen).

There is a significant difference between indictment and trial. The fact that a sitting president could theoretically be indicted does not necessarily mean he would be subjected to trial while in office. Federal criminal law provides numerous public-interest exceptions to the requirement that an indicted defendant be given a speedy trial. To say the least, the high public responsibilities of the presidency would be a very compelling reason to delay a trial.

Still, there is no categorical rule immunizing a president from a criminal trial during his term in office. In Clinton v. Jones (1997), the Supreme Court noted that judicial proceedings routinely place demands on the executive branch in general, and the president in particular. Presidents have been ordered to comply, and have voluntarily complied, with various requests for the production of evidence and testimony in criminal cases. While Clinton v. Jones involved a civil claim based on an allegation of private misconduct by the president, the Court’s reasoning is applicable to criminal allegations: Presidents do not enjoy constitutional immunity from the lawful demands of the judicial process, but trial judges would be expected to respect the demands of the presidency and grant reasonable stays in the proceedings.

Given the practical unlikelihood that a president would allow himself to be indicted, it makes little sense to speculate about what might cause a judge, at some point, to deny further delay and order a criminal trial of a sitting president to proceed.

PARDON

There is also some debate about whether the president may pardon himself. President Trump is largely to blame for the chatter about pardons when we don’t even have crimes at this point. He tweeted early Saturday morning that “all agree the U. S. President has the complete power to pardon.” Trump was no doubt reacting to a Washington Post report that he had been asking advisors about “his power to pardon aides, family members and even himself.”

The pardon question is factually premature in the sense that there is no allegation or indication that he or those close to him have committed a crime. It is not, however, legally premature. There need not be a formal criminal charge before a president issues a pardon. After President Nixon resigned, President Ford pardoned him even though he had not been indicted. President Lincoln mass-pardoned Confederate soldiers and sympathizers, and President Carter mass-pardoned Vietnam draft evaders. Thus, the fact that special counsel Mueller has not, and may never, file criminal charges would not prevent President Trump from issuing pardons.

Including … a pardon for himself? Yes.

A pardon is a judicially unreviewable act of executive discretion. I think of it as an iteration of prosecutorial discretion, which is the judicially unreviewable executive decision whether to charge someone with a crime. This is a sweeping presidential authority. The only exceptions to it are obvious from the Constitution’s Pardon Clause (article II, section 2), which limits pardons to “Offenses against the United States.” That is, the president may only pardon offenses that have already occurred – he cannot grant a prospective “get out of jail free” card for future crimes; and the president may not pardon state offenses, for they are outside his jurisdiction over federal law-enforcement.

It is obvious that the Framers understood they were permitting the president to pardon himself. The Pardon Clause says that while the president may pardon any federal offense, this does not extend to “Cases of Impeachment.” The Framers thus expressly considered a president’s potential use of the pardon power to benefit himself. The only limit they imposed on such self-dealing was to prevent the president from blocking his own impeachment, not his own prosecution. On this score, bear in mind that at the time of the Constitution’s adoption, there was no sprawling federal criminal justice system; it was expected that almost all crimes would be prosecuted at the state level. Nevertheless, if the Framers wanted to prevent a president from blocking his own federal prosecution, just as they took pains to block him from preventing his own impeachment, they would have said so.

More significantly, as I argued in Faithless Execution, we’ve become such a litigious society we fail to recognize that the Constitution mainly relies on political checks, not judicial ones. The idea is to promote liberty by putting the most important decisions in the hands of representatives who answer to the voters, not in the hands of judges who are not accountable to the public. All power, including all executive power, can be abused. When a power, such as the pardon power, is abused, the remedy is impeachment. It is not a lawsuit in which the courts are asked to manufacture limits on the pardon power that are not rooted in the Constitution.

This is as it should be. As we witnessed in the Clinton scandals, sometimes the public accepts that executive wrongdoing has occurred but decides that it is not sufficiently serious, or at least sufficiently related to the president’s core duties, that removal from office is warranted. One could easily foresee the same sort of thing happening with an allegation that a president who pardons himself has abused the pardon power. If a criminal allegation were frivolous and politically motivated, much of the public might support a president’s pardoning of himself. On the other hand, if it were discovered that a president had committed a truly serious crime, a president’s use of the pardon power to avoid prosecution would be an impeachable offense (as would the underlying crime itself).

So yes, a president may be indicted, and a president may pardon himself. Neither is worth worrying about at this point, since we don’t have a crime. And neither will be worth worrying about down the road: in the unlikely event a serious crime is uncovered, it would result in impeachment and removal from office.