Can The President Go To Jail?

On 17th May 2017, Special Counsel Robert Mueller was appointed to lead an investigation into allegations of Russian interference in the 2016 US

election Nearly two years later, the investigation has gone right to the heart of Washington Nine people – each with close, personal connections to the President – have been indicted, and Mueller’s report hasn’t even been released yet This has prompted fears within the Trump administration that even the President himself could be indicted Yet could the President of the United States go to jail? A U

S President has never been imprisoned in American history The closest the US came to bringing charges against a Commander in Chief was in 1974, during the second term of Richard Nixon

In March 1974, a Grand Jury named Nixon as an unindicted co-conspirator in the Watergate scandal During the investigation, special prosecutor Leon Jaworski requested White House recordings of conversations in the Oval Office to be released, since they may have implicated Nixon The White House initially refused to release the full tapes, and the matter was referred to the Supreme Court Over the course of three weeks, eight justices of the Supreme Court debated whether criminal charges could be brought against a sitting president However, the justices could not agree, and Nixon resigned two weeks later

The law was never tested By that time, Congress was already impeaching Nixon For such a serious procedure, the process of impeachment is relatively simple First, a member of the House of Representatives brings forward charges as stipulated by the Constitution These include allegations of bribery, treason or other “misdemeanours”

These charges are brought before the House Judiciary Committee The committee debates whether the case is strong enough before drafting a legal impeachment document to be put before the House of Representatives The House then votes on the proposal If it gains a simple majority, then the object, in this case the President, is officially impeached However, to remove the President from office, the matter has to be put before the Senate

A team of representatives acting for the prosecution state their case before the Senate, with the Chief Justice of the Supreme Court presiding If the proposal gains more than two thirds of the Senate vote, the motion is carried, and the President is officially removed from office Including Nixon, only three presidents have had impeachment proceedings brought against them Two of them, Bill Clinton and Andrew Johnson, were acquitted by the Senate Article 1, section nine of the U

S Constitution states that, “Judgment in cases of Impeachment shall not extend further than to removal from Office… but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law” On the other hand, Article 2, section nine states, “The President, Vice President and civil officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” In 1973, Vice President Spiro Agnew faced charges of bribery His legal team argued that because he was subject to impeachment under Article 2 he was immune from criminal prosecution under Article 1

The argument was that Agnew had to be impeached first, then prosecuted The Department of Justice refuted this, stating impeachment was not exclusive from conviction According to Agnew’s lawyer Martin London, “by logical extension, the President could be subject to both impeachment and indictment, even if those proceedings were pursued simultaneously” This implies that no-one, including the President, has absolute immunity from prosecution However, similarly to Nixon, Spiro resigned before this new legal ground could be further explored

The law, and the Constitution, have yet to be tested Trump faces accusations of collusion with a foreign power, something the United States hasn’t had to deal with since Senator William Blount in 1797 Blount was found guilty of working with the British to annex Florida and Louisiana, then owned by Spain and France, in order to protect American trade Yet Blount was never imprisoned Trump’s situation, however, is very different

The president is not accused of aiding a foreign power Instead the investigation is into whether Russia interfered with the election process, and if he and his campaign wilfully benefitted from that If it is difficult to impeach a sitting president, is it even possible to bring a criminal case against him? The answer to that question, may lie in how presidents deal with civil lawsuits Civil suits are brought by private individuals, like suits for divorce or compensation claims Criminal cases are brought by the state against an individual for breaking the law

Civil lawsuits have been brought against presidents several times before In 1982, A Earnest Fitzgerald brought a civil lawsuit against a number of former government employees, including former President Richard Nixon Nixon’s lawyers argued a former official could not be sued for actions they took while in office The Supreme Court agreed – it voted five to four that a president is entitled to immunity from civil prosecution for executive decisions

However, this case only pertained to the federal court, not state court, and even then only when regarding matters of state The personal conduct of the president is still subject to the laws of the land This was highlighted in 1994 Arkansas state employee Paula Jones brought a civil lawsuit against Bill Clinton for sexual harassment Clinton appealed that a sitting president was immune from prosecution while in office

However the Supreme Court unanimously ruled the president was not immune from federal civil suits for things he did before entering the Oval Office In the summary of its decision, the court said, “We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power” When it comes to criminal charges, the Office of Legal Counsel wrote a memo in 2000 stating 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” However, given that the Constitution doesn’t explicitly state that the president can’t be prosecuted, some lawyers and legal experts argue against this interpretation

Kenneth Starr, the US Solicitor General who led the investigation into Bill Clinton, believes indictment is a necessary threat He says, “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties” Lawyer and George Washington University Law School Professor Jonathan Turley agrees

“I fail to see the compelling basis for reading a sweeping immunity into the Constitution that was not mentioned… in the text of the Constitution The danger of having an immunized felon in the Oval Office is greater than the danger of having an indicted president” The United States is in uncharted constitutional waters There is a clear precedent for bringing impeachment charges against a sitting president, but only if the evidence is there Even then, once the President is removed from office, there is no guarantee that he will face criminal proceedings – civil suits are more likely

Both Robert Mueller and Speaker of the House Nancy Pelosi say impeaching Trump will only further divide the US However Adam Schiff, Chairman of the House Intelligence Committee, says there is already enough evidence in public to bring an indictment of Trump, and his children When Mueller’s investigation is over, we shall discover exactly what legal precedent, if any, will be established by the presidency of Donald J Trump

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