Why We Can't Prosecute a Sitting President

Harvard law professor emeritus Alan Dershowitz has told Fox News that Justice Department memos state that a sitting president cannot be indicted, prosecuted or tried, without first having been impeached and removed from office. I agree.

The president of the United States is elected by the people (their "electors") in all 50 states.

Three articles of the U.S. Constitution deal with removal from office or impeachment:

Article 1 provides:

-- "The House of Representatives ... shall have the sole power of impeachment."

-- "The Senate shall have the sole power to try all impeachments.."

-- "Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law."

Professor Dershowitz would read that as saying "but the party once convicted by the Senate shall nevertheless be liable and subject to indictment, trial, judgement and punishment." For the professor, there can be no prosecution, or punishment of a sitting president until after his removal from office pursuant to the Senate's impeachment conviction.

The reason for this is patently obvious.

If a sitting president can be indicted and tried by a special prosecutor, he could just as easily be indicted, and tried by any or all of the 93 U.S. Attorneys. Worse, he could be indicted, and tried by the hundreds of county prosecutors of every state in the union.

The danger is obvious. Chaos. If the president can be tried, convicted and imprisoned while in office, is he going to serve the remainder of his term while confined in a penitentiary? Is Joliet State Prison going to be the Midwestern White House? What if he appeals and wins?

If the president can be prosecuted while in office, any one prosecutor -- federal or state -- could nullify or attempt to nullify the will of the voters (and their electors) in the 50 states. What if the Cook County state's attorney charged the president with "official misconduct" for usurping Congressional power to declare war by taking out an Islamic State terrorist training camp in Libya without specific prior Congressional approval?


Would the president have to put all other issues on his desk on the back burner to defend himself in Cook County criminal court? Can 12 jurors nullify the results of a presidential election?

It is not difficult to imagine a concerted effort by 10 opposition prosecutors, acting as Lilliputians to tie down President Gulliver -- to divert his attention from the great matters of state and duties of his office, to the tawdry matter of defending himself against sundry official misconduct charges. If you think the efforts of the opposition party in Congress -- Republican or Democrat -- to obstruct the sitting president's agenda are hurting the country, imagine the chaos that opposition prosecutors could do if they had power to indict, try and imprison a sitting president.

The argument has been made that during the trial of a sitting president, the vice president and a majority of the principal officers of the executive departments could make a written declaration that the president is "unable to discharge the powers and duties of his office," and that the vice president could then immediately assume the powers and duties of the presidency pursuant to the 25th Amendment.

The president could, however, make his counter-declaration that no inability exists. If he did, he would resume office unless two-thirds of the members of both Houses of Congress found that he was unable to discharge his duties.

The 25th Amendment was added to the Constitution (1967), not to allow members of the president's cabinet to suspend a physically and mentally competent president from office during a criminal trial, but rather to do so if the president should become physically or mentally disabled. It was passed in the wake of the 1963 assassination of President Kennedy. What if the bullet, rather than killing the president, had left him alive but unable to "discharge the powers and duties of his office?"

The sole remedy for high crimes and misdemeanors is impeachment -- by the elected representatives of the people from all 50 states.

Posted: QCOline.com August 22, 2017
Copyright 2017, John Donald O'Shea