How should the constitution be fixed?

[lagomorph777]

62. clarity on whether a sitting president can be indicted

It already is clear, and the argument below states why that is.

https://www.lawfareblog.com/yes-constitution-allows-indictment-president

Credit: Matthew Kahn
In a recent opinion piece, I argued that the text and structure of the Constitution, a serious commitment to the rule of law, and plain good sense combine to preclude a rigid policy of “delaying any indictment of a president for crimes committed in winning the presidency.” When a scholar I admire as much as Philip Bobbitt strongly disagrees and argues otherwise in this publication, I need to rethink my position and respond—either confessing error or explaining why I continue to hold to the views I originally expressed
....he says my explanation “depends on an artful reading of Article I, Section 3, which provides that ‘the Party convicted [by the Senate in an impeachment proceeding] shall nevertheless be liable and subject to indictment,’” trial, conviction and punishment as provided by law. Bobbitt argues that the “natural import of those words” is that the “Party convicted” has to be a person “who has in fact [already] been convicted, i.e., who has gone through an impeachment process prior to being subject to indictment.”

I have no quarrel with that argument, although Professor Bobbitt assumes I do. I read the language of Article I, Section 3 as leaving subject to indictment and trial an official who has been impeached, convicted and removed for an impeachable offense that happens also to be a crime. Without that language, it might have been argued that the ban on double jeopardy would preclude such post-removal proceedings that seek to punish the removed official criminally for the very same conduct that led to the official’s conviction and removal by the Senate. But that language says nothing at all about the amenability to indictment and trial of an official who hasn’t yet been removed through impeachment. It is the Constitution’s unspoken but clear commitment to the rule of law, and to the proposition that even the president is not above the law, that establishes the basic point that being president doesn’t mean being immune to indictment.

All that Article I, Section 3 adds with respect to an official who has been removed through impeachment and conviction is that such an official cannot invoke the Senate conviction as a bar to subsequent criminal prosecution. That such an official “shall nevertheless be liable” to the criminal process says only that he shall “remain” liable to that process—just as he would have been prior to removal. In other words, the impeachment process doesn’t serve as a crime-laundering device.

Ironically, it is Professor Bobbitt who has read Article I, Section 3 in a manner unsupported by the natural import of its words. He has read the statement that someone removed through the impeachment process “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” as though the Constitution states that anyone removed from office for committing an impeachable offense shall, upon being convicted by the Senate, for the first time become “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” His reading would suggest that amenability to the federal criminal process springs from the ether once an officer has been put through the impeachment wringer and been found wanting.