There are many allegations against Donald Trump that may give rise some day to either criminal prosecution or congressional sanction. But what precisely are the available options for the special counsel and for members of Congress? What is in their respective tool kits? In this article, we explain a range of options (and the legal issues each raises): including indictment and prosecution, a grand jury statement of wrongdoing, impeachment, censure, and, for the sake of completeness, the Twenty-Fifth Amendment.
Indictment and prosecution
In light of reports that Special Counsel Robert Mueller is investigating Trump personally for obstruction of justice, an obvious issue is whether Mueller could ultimately seek to indict and prosecute the president.
Can the president be indicted?
The question whether a sitting president can be indicted has vexed generations of constitutional lawyers. The Constitution is silent on the subject and the Supreme Court has not squarely addressed the question. Within the government, the issue has been considered on five occasions: twice by the Office of Legal Counsel (OLC), by the Solicitor General in the Watergate era, by the Watergate special prosecutor, and then again by the Office of the Independent Counsel in the Clinton era. A split emerged in those opinions. In general terms, it is fair to say that the president’s immunity from indictment is an open question. The OLC’s 2000 opinion, however, is presumably still the prevailing view at least for the Department of Justice. It holds that a President cannot be indicted or prosecuted while in office, but that “temporary immunity,” the OLC states, “would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”
Perhaps the most widely held view, adopted by the OLC in memos from 1973 and 2000 and then-Solicitor General Robert Bork in a 1973 brief, is that the president is not susceptible to indictment and prosecution while in office. Broadly, the reasons supporting that position are twofold.
First, looking at the Constitution’s text, some suggest that the impeachment procedure must precede an indictment. Article I, section 3 states:
Judgment 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, Judgment, and Punishment, according to Law.
Some have argued that this language — appearing to contemplate an indictment after an impeachment — means that this is the only proper constitutional sequence. This reading has been abandoned for other offices — including judges, vice presidents and cabinet officials, watering down its persuasiveness in the presidential context. The 1973 OLC memo didn’t rely on it, but Nixon did in his briefs to the Supreme Court the next year.
The stronger argument is based on the unique position of the president in the constitutional structure. The president alone holds all federal executive power, including control of the army and navy, foreign affairs powers, control of executive departments, and the responsibility to execute laws. If the president were indicted, he could potentially be arrested, put on trial, convicted, and incarcerated. Even if he were eventually acquitted, simply dealing with these processes would demand substantial attention. The OLC opinions in support of constitutional immunity reason that to subject the president to the criminal process would hopelessly handicap him from exercising his power. That result would implicate the separation of powers by giving the judiciary the power to cripple the executive branch – something the Supreme Court cautioned against when considering Nixon’s immunity from civil suit in Nixon v. Fitzgerald. There, the Court stated that a president has absolute immunity from civil suit for “official acts” – although that may not include other actions of a president while in office, or actions beforehand as the Supreme Court made clear in Clinton v. Jones. (Note that Just Security’s Ryan Goodman has recently published an analysis of Nixon v. Fitzgerald, arguing that a majority of justices suggested that a president is not immune from criminal prosecution during his term.)
The Bork brief–which was substantially about the power to indict a vice president, but also considered the same issue vis-a-vis the president — also points to the Twenty-Fifth Amendment, which establishes the succession of the presidency and a mechanism for replacing him if he is incapacitated. “[I]t is noteworthy that the President is the only officer of government for whose temporary disability the Constitution provides procedures to qualify a replacement,” Bork wrote. “This is recognition that the President is the only officer whose temporary disability while in office incapacitates an entire branch of government.”
A related point, relied on in the OLC memos and the Bork brief, is that the president controls much of the apparatus surrounding criminal justice: prosecutions; evidence (through the power of executive privilege), and the pardon power. All of this means the common sense approach is to impeach and remove a president (and deprive him of the pardon power), and then prosecute him.
That’s the majority view, but the issue is not settled. It’s a somewhat uncomfortable conclusion, running counter to the idea that nobody is above the law and giving the president a king-like immunity even for acts committed totally outside his official duties. Important legal figures have disagreed with it.
Notably, Watergate special prosecutor Leon Jaworski argued against presidential immunity from prosecution in a 1974 Supreme Court brief, following a memo from his staff.
In addition, a 1998 memo written for Independent Counsel Kenneth Starr by constitutional law professor Ronald Rotunda, unearthed by the New York Times’ Charlie Savage, mounts a strident case for the constitutionality of indicting a sitting president. Savage calls this “the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.” At the very least, the 56-page memo is a testament to the debatability of the issue. One note, though: Rotunda limited his advice to the context of Starr’s investigation, whose powers and responsibilities were regulated by statute. That law is no longer in effect, and Robert Mueller’s position was created by Justice Department regulations instead of directly by congressional statute. It’s this contextual difference that led Rotunda to argue, in a recent op-ed, that while Starr could have indicted Clinton, Mueller cannot indict Trump.
In his Supreme Court brief, Jaworski argued that constitutional and public policy considerations actually cut both ways. The importance of the administration of criminal justice and the principle that “under our system no person, no matter what his station, is above the law” weigh against presidential immunity. The Supreme Court took into account similar considerations when finding that Clinton could be sued for acts falling outside his official duties, in Clinton v. Jones. Speaking for the court, Justice Stevens wrote that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The precise scope of the president’s civil immunity is still unclear, and would likely inform a court’s evaluation of the scope of criminal immunity while in office.
On top of that, both Jaworski and Rotunda argue that the Constitution provides an explicit immunity for members of Congress, showing the framers turned their minds to the question, but none for the president.
Finally, Jaworski argued, impeachment can only follow “high crimes and misdemeanors,” which doesn’t run the full gamut of criminal offenses. If impeachment had to precede indictment, this would leave a number of crimes which could go entirely unpunished. Rotunda, in his memo for Starr, adds that impeachable offenses don’t have to be violations of criminal statute, demonstrating that they are two different categories of acts.
Rotunda’s memo makes a couple of further points. First, he suggests that while a president can be indicted, it may be that any imprisonment would have to be deferred until after he leaves office. He also offers a response to Bork’s Twenty-Fifth Amendment argument, suggesting that the amendment actually weighs against an immunity because it means there is a structural solution to the incapacitation of the executive branch that an indictment could engender. The vice president could temporarily replace the president if the the latter is disabled.
Mueller’s next steps
In the end, neither Jaworski nor Starr attempted to indict the presidents they were investigating. If Mueller were to attempt it, he’d be breaking new ground.
But Mueller’s hands may be tied. The regulations governing his position specify that he must “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” Which raises another contested legal question – whether that phrase includes the previous OLC opinions concluding that prosecuting a sitting president is out of bounds. If so, it won’t be for Mueller to make up his own mind on the constitutionality question; he’ll just have to follow the conclusions expressed in the opinions. (It’s for this reason that Rotunda concluded in his recent op-ed that Mueller cannot indict, while Starr could have.)
Whatever constitutional position is ultimately correct, we shouldn’t assume the uncertainty necessarily means Mueller won’t seek to indict him. As Professor Andrew Crespo points out, it “hardly means he cannot be prosecuted.”
On the contrary, a lawyer’s job is often to assess the relevant facts and legal arguments under conditions of uncertainty such as these—and then to make a judgment about how best to proceed. In this instance, that lawyer’s name is Robert Mueller. … should he decide to take us down the road to United States v. Trump, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted.
But he would also be acting professionally if he – like Starr – decided impeachment were the more appropriate course to pursue.
Grand jury alternatives
In the event that Mueller concludes that he cannot indict a sitting president, or that he has insufficient to support criminal liability, but his investigation still turns up evidence of wrongdoing, the grand jury has alternatives. As Ryan Goodman and Alex Whiting unpack here and here, there are three other possible options. Congress can subpoena the grand jury evidence for the purpose of considering impeachment, which might then become public. The grand jury might also consider presentment, an official declaration that it would have indicted the president were it not for his current official position. Goodman and Whiting write that this option “is not necessarily precluded by any Justice Department legal opinion.” Thirdly, the grand jury can use a special procedural device to produce a public report. Of course, none of these mechanisms are really punishment in themselves, but would enhance the president’s accountability.
Impeachment presents no such constitutional issues. Of course, politically it’s another matter because of the Republican-controlled Congress – but there is no question that Congress is empowered to impeach a president.
Article II, section 4 of the Constitution provides that:
The President, Vice President and all 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.
A president can be removed when the House passes articles of impeachment specifying the basis of the impeachment (akin to an indictment) with a simple majority of those members present and voting once quorum requirements are met, and after a trial presided over by the Chief Justice, the Senate can convict with a two-thirds majority of the members present.
The Constitution says that impeachment can follow a president’s “high crimes and misdemeanors,” but it doesn’t define that phrase. That means it’s in effect for the Congress to interpret, making it more of a political determination than a legal one. There’s a good argument that several of the main allegations against Trump could justify an impeachment – even without connection to an indictable crime. One boundary question is whether a president could be impeached for actions the person took before assuming federal office. If those actions involved matters related to how the individual got elected, there is a stronger argument for them counting. A 2010 case will be relevant here: the situation of Judge Thomas Porteous, who was impeached and then removed from the bench. One of the articles of impeachment cited conduct pre-dating his appointment, making false statements to the Senate and FBI in connection with his nomination and confirmation to the U.S. District Court for the Eastern District of Louisiana. He was convicted on that article.
Bill Clinton and Andrew Johnson (back in 1868) were impeached by the House. Nixon resigned ahead of his near-certain impeachment.
A measure short of impeachment that Congress could pursue is censure. It is notable that censure can come from either chamber of Congress, and does not require a super-majority of the Senate as with impeachment. While constitutional questions have been raised about the practice–which is not explicitly provided for in the Constitution–it is probably lawful. However, censure is seldom deployed and without legal effect. For more, read our deep dive into the scope and history of censure here.
Legislation and the 25th Amendment
A more outlandish proposal floating around is using a combination of legislation, a congressional commission, and the Constitution’s Twenty-Fifth Amendment to oust President Trump.
Rep. Jamie Raskin (D-Md.) is sponsoring a bill designed to create a congressional oversight commission that could declare Trump incapacitated and have him removed under the Twenty-Fifth Amendment – the provision introduced in the wake of Kennedy’s assassination to kick in when a president can no longer fulfil his duties.
Section 4 of the Amendment allows the Vice-President and a Cabinet majority to declare that the president is “unable to discharge the powers and duties of his office,” handing the reins over to the VP. But the section also says a majority “of such other body as Congress may by law provide” can make the same declaration with the VP – and it’s such an “other body” that Raskin is trying to create. The plan would be to create an “Oversight Commission on Presidential Capacity”, staff it up with four physicians, four psychiatrists and three others (like former presidents) and direct it to examine the president “to determine whether the president is incapacitated, either mentally or physically.”
This kind of scheme is constitutionally possible, of course, but runs into political problems. Raskin needs to find enough votes not only to pass the legislation but to override the certain presidential veto. Then, under the Amendment, if Trump challenged the finding and demanded to be reinstated, a two-thirds majority of both houses would need to block that challenge to sustain removal. On top of that, Mike Pence would need to agree that the president was incapacitated in the first place. All of that seems incredibly unlikely. Even impeachment is simpler.
No president has ever been removed by impeachment. No president has ever been indicted. No president has been censured since 1860. And the Twenty-Fifth Amendment has never been invoked. Each item on the menu of options laid out in this article has its own flaws and difficulties, and that’s why they are so seldom used: indictment is constitutionally questionable, censure is on surer footing but lacks real bite, impeachment requires great political will, and the Twenty-Fifth Amendment requires political will and there are serious questions about its applicability. Yet this has been a very unusual presidency, and many norms have fallen by the wayside in the wake of Trump. There may be more breaks with convention to come.