Former Attorney General Eric Holder, who led the Justice Department for most of the Obama administration, told a podcast run by the legal commentary site Lawfare that a Nixon era legal opinion concluding that a sitting president may not be indicted is wrong.
President Trump could face criminal charges for allegedly directing his longtime attorney Michael Cohen to make illegal hush money payments to women he had sex with, and could also potentially face charges arising out of Special Counsel Robert Mueller’s investigation into the Trump campaign’s contacts with the Russian government.
In 2000, however, the Justice Department’s Office of Legal Counsel (OLC) concluded that “a sitting President is constitutionally immune from indictment and criminal prosecution.” This conclusion built off the reasoning of an OLC memo from 1973, which largely grounded the rule against indicting a president in practical considerations. “A necessity to defend a criminal trial and to attend court in connection with it,” the Nixon era memo read, “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.”
In his Lawfare interview, however, Holder labels these memos “wrong.”
“This notion that you can’t indict the president essentially because you will paralyze … the executive branch just doesn’t, to me, hold water,” the former attorney general argued. Holder notes that if a president is impeached, “that’s a pretty paralyzing” situation. And yet the Constitution allows the president to remain in office during that impeachment.
Holder also notes that the Twenty-Fifth Amendment permits a president to temporarily cede power to the vice president while their criminal trial proceeds, and then to step back into office if they are acquitted.
Holder is right that the executive branch continues to operate, even when a president faces significant amounts of stress. The presidency, after all, is not known to be a stress-free job, even if the present occupant spends much of his time live-tweeting cable news.
But regardless of whether a president may lawfully face indictment while still in office, there are profound practical problems presented by a criminal president that the framers of the Constitution did not anticipate.
A sitting president might be indicted or even convicted, but a criminal president would remain in office until removed by impeachment — a process which requires a two-thirds supermajorty of senators to remove the president.
Although the Twenty-Fifth Amendment does allow a president to be removed during a period of disability or incapacity, that process requires the consent of the vice president, a majority of the president’s cabinet, and a two-thirds majority of both houses of Congress to remove the president for more than a brief period.
And if you think that 20 Republican senators will have the political courage to vote to remove Trump from office, you probably should have paid more attention these past two years.
Thus, Trump could potentially be indicted, convicted, and sent to prison — and yet remain president. He would presumably have to be briefed on legislation requiring his signature and military actions requiring his approval while in prison.
That’s an untenable situation, but one for which the Constitution provides no meaningful solution. The framers simply did not contemplate a criminal president who would be protected, no matter what, by lawmakers of his own party.