Lots at Stake Whether Trump is Immune from Prosecution–even if Mueller doesn’t indict

There are more reasons than you might think why it’s important to resolve the “constitutional puzzle” concerning whether a sitting president can be criminally prosecuted. Most obviously this quandary overhangs Robert Mueller and the Justice Department if the special counsel ultimately concludes he has sufficient evidence to indict.

The strength or weakness of the constitutional claim that President Donald Trump could be indicted and prosecuted is also important to how one evaluates other events that might unfold. This question should affect, for instance, how you think about the wisdom and legitimacy of Congress ever pursuing censure motion or impeachment. That evaluation is surely affected by whether another constitutionally available option (prosecution) has been unnecessarily foreclosed or if instead prosecution is constitutionally barred. It is also easy to imagine a shift in the political climate where more members of Congress start saying that it’s an open question or permissible to indict the president – they may say so to offload the political burden on themselves. We would want to know in that situation, at least, how plausible is their constitutional claim. What’s more, Mueller may conclude that his hands are tied by an opinion of the Office of Legal Counsel written in 2000, which holds that a sitting president is immune. It would be important then for the public to know whether that 2000 opinion is based on sound legal reasoning. Has Mueller been illegitimately constrained?

A host of other implications also ride on this question. Whether Trump is immune affects the prospect of potential state criminal prosecutions (think: New York State financial crimes) just as much as it affects any federal action. It also affects  whether Trump could be effectively prosecuted by federal authorities once he leaves office. Let me explain this last one a bit. It’s important to recall that there is widespread agreement that even if a president is immune from prosecution while in office, prosecutors can indict him the moment he leaves office. Even the 2000 Office of Legal Counsel memo with its absolutist position on immunity of a sitting president states that the protection from indictment and prosecution is a “temporary immunity” which “would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”

But what if the statute of limitations has run by the time Trump leaves office? The answer is that courts would likely toll the statute of limitations for the duration of his immunity in office. That may work, however, only if he was indeed immune during that period. Once he leaves office, Trump’s personal lawyers could well raise the claim that he was never immune and thus the statute of limitations has expired.

These issues may be important for any financial crimes that might be discovered during the course of the special counsel’s investigation. Recall that even if Mueller does not currently have jurisdiction to pursue a criminal investigation of federal offences outside the scope of the Russia investigation, there is a device in the special counsel regulation for him to hand those matters over to other parts of the Justice Department. Mueller may also be able to share information with state authorities (think: NY State) the same way federal prosecutors can in ordinary investigations–and that includes grand jury information.

Finally, there are other options Mueller may have at his disposal short of indictment and prosecution—such as naming Trump as an unindicted co-conspirator, as the special prosecutor and grand jury did in Richard Nixon’s case. In future pieces at Just Security, we will explore other possible options in Mueller’s toolkit. Generally speaking, the constitutional issues and balancing of interests that arise with respect to indictment and prosecution are relevant to evaluating the constitutionality of these other options as well. How one thinks about whether it is constitutionally permissible to indict or prosecute a sitting President deserves close consideration in all these affairs.

Photo: Getty Images/Justin Merriman 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.