Can the President of the United States Be Prosecuted After All?

According to the U. S. Constitution, the House of Representatives has the power to impeach the President of the United States. The Senate would be able to convict President Trump, but the only thing that Congress could do beyond that is remove him from office.

Article II, Section 4 and Article I, Section 9

Article II, section 4 of the U.S. Constitution 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 addition to that, Article I, section 9 of the U.S. Constitution states, “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.”

This means that the President of the United States can be subject to being indicted, tried in a court of law and punished according to the law like any other American. This will be the case whether Congress impeaches Donald Trump or not.

There are two reasons that some people say that President Trump is above the law. There is a question as to whether or not he can be charged with obstruction of justice.

Presidential Powers and Limitations under the Constitution

Taken on its own, it was not illegal for President Trump to ask then-FBI Director James Comey not to be too hard on National Security Adviser Flynn. He also had the legal power to fire James Comey. Similarly, he would be within his rights to fire Special Counselor Robert Mueller and Deputy Attorney General Rosenstein.

But if President Trump exercised his legal powers for the purpose of committing a corrupt act, then he would be guilty of obstruction of justice. President Trump has the constitutional power to fire James Comey, but he cannot do it if his intention is to protect himself from “Indictment, Trial, Conviction, and Punishment” for any felony.

But if the President committed obstruction of justice, the question which then arises if the President of the United States is exempt from prosecution while serving in office. This question is not addressed anywhere in the Constitution, which has given rise to debate.

For example, when then-Vice President Spiro Agnew was under investigation for bribery, his legal team argued that he was subject to impeachment under Article II, section 4. Therefore, he couldn’t be prosecuted until after the House impeached him and the Senate convicted him. Once those two events occurred, then Vice President Agnew could be charged criminally.

Officers at the Department of Justice rejected his team’s argument. They stated that the Constitution did not protect the Vice President from prosecution even if he was being impeached and removed from office while he was being indicted.

Keep Reading: Sujit Choudhry Writes and Co-Edits New Book “Constitution Making”

Legal Opinions

Several legal experts have weighed in on this issue, and do not believe that Robert Mueller can indict President Donald Trump on charges of obstruction of justice. These experts also point out the fact that a President of the United States has never been indicted before.

Anyone who was hoping that President Trump would be indicted is going to have his hopes dashed, according to Paul Rosenzweig, who was Kenneth Starr’s deputy during the Whitewater and Monica Lewinsky investigations in the 1990s.

Mr. Rosenzweig has stated that Robert Mueller is known for following the rules of law to the letter. Therefore, Mr. Rosenzweig definitively stated that “Mueller will not indict Trump for obstruction of justice or for any crime. Period. Full stop. End of story. Speculation to the contrary are just fantasy.”

Even so, Kenneth Starr’s office issued a memo on this subject during the investigation of former President Clinton, and it read, “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. In this country, no one, even President Clinton, is above the law.”

If Special Counsel Robert Mueller has evidence that demonstrates President Trump’s guilt, he must secure a Grand Jury indictment and go through with the process. President Trump would then be able to file his own lawsuit to determine if the indictment is legal.

Learn More: Five Questions with Sujit Choudhry