Can A Sitting President Or Vice-President Be Indicted?

[arwalden]

Someone I know was trying to convince me that even if Bush or Cheney were involved, they could be named as conspirators, but that neither of them could be officially indicted... and that it would have to be Congress that took any action against either of them.

Is this true?

[Cactus44]

1. They can. Remeber the Paula Jones case.

That set the prescident.

[H2O Man]

4. Jones had a civil case.

Hence indictments played no role.

A VP can be. It is open to debate if a president can.

[Walt Starr]

7. I'd say it's open to debate if a Veep can, too

More likely a Veep can, but it's never really be fully tested.

[H2O Man]

23. Agnew was going

to be indicted. He struck a deal to avoid it.

Hopefully, we will see his son Richard Agnew Cheney break new ground!

[Walt Starr]

6. Clinton was indicted during the Paula Jones case?

That's news to me!

OOPS, excuse me, THAT'S TOTALLY FALSE!!!!

Nobody was indicted in the Paula Jones case.

[Maddy McCall]

8. No, he was impeached, not indicted.

[jedicord]

25. Mea Culpa, I made the same mistake last week.

We must have read the same article recently that indicated the SCOTUS determined a President could be indicted during the Clinton years. And I blabbed this "precedent" on DU as if I knew what I was talking about. (Talk about people getting snarky when they set you straight, but that's for another thread.)

What actually happened (I learned later) was in 1997 the SCOTUS determined a sitting President could have a civil suit brought against him, thanks to Paula.

And, at the time, the Republicans cheered this great idea.

Get your civil suit ready Wilsons!

P.S. Welcome to DU.

:hi:

[Spazito]

27. Actually, the USSC decision re Clinton v. Jones narrowed their

decision to only the private acts of the President as opposed to official acts so it may not be possible to bring a civil suit against bush in this instance. I have no doubt that if one were attempted the bush cabal would put forth the argument that the suit relates to official acts and is therefore affords him temporary immunity.

Edited to add link to Clinton v Jones:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=95-1853

[jedicord]

28. Everything he does IS in private - officially and unofficially!

Just to throw a kink into the system...

Besides, that just adds a whole 'nother angle to the wrongness of this. If the * Administration outed a covert agent and ruined her job on an official basis - is that worse than on a private, non-official basis?

Or is that a rhetorical question?

[Spazito]

29. LOL I would love to see impeachment hearings THEN a massive

civil suit that would leave the man begging in the streets with a tin cup. If the republicans had the integrity of the repubs during the Nixon years, this could be a likely scenario but, alas, they lack even one tenth of the integrity of those times.

[gkhouston]

2. this question was sidestepped during Watergate, so no one really knows.

If there's even the faintest hope that it can be attempted and he feels that the basis for the criminal charges exist, I can't see Fitzgerald shying away from it. He doesn't seem like the kind of person to shirk a difficult or unpleasant task. Whether 12 out of 23 on the grand jury would be willing to indict is anyone's guess, but there is not clear-cut law against it.

[Maddy McCall]

3. No. I don't think so. According to Kos, it would stir a constitutional..

crisis.

snip/

Fitzgerald is essentially faced with three options: 1) Indict Bush and Cheney and provoke a constitutional crisis on the question of whether a sitting President is indictable; 2) Name Bush and Cheney as unindicted co-conspirators and watch them get off scot free, to be tried only in the court of public opinion; or 3) Do nothing and let them get off without even public criticism.

Can a sitting President be indicted?

snip/

Here is the issue, as brilliantly outlined by Woodward and Bernstein in The Final Days:


The Constitution said clearly that if a President were impeached and removed from office, he was subject to criminal prosecution. But it was silent on the question of whether an indictment could be brought while he remained in office. If the President were indicted, his lawyers would challenge the indictment. The White House arguments would be strong . . . . What would the President do if someone started a nuclear war--ask for a recess?

Also the question of indictment would doubtless go to the Supreme Court. This would delay the trial of the other defendants charged in the conspiracy. . . .

http://www.dailykos.com/storyonly/2005/10/2/141445/581

[Hawkeye-X]

20. We have been in a constitutional crisis since 2000.

Why not now?

[hvn_nbr_2]

5. Vice President Agnew was indicted, wasn't he? n/t

[DelawareValleyDem]

9. Pretty sure Agnew reached a plea agreement

before he was indicted.

[WI_DEM]

10. yes, and had he not reached a plea he would have been

indicted.

[Maddy McCall]

13. But indictment precedes the plea, doesn't it?

[Walt Starr]

21. He resigned before the plea

and the indictment of a sitting Veep was never tested in court.

[bowens43]

11. VP can definitely indicted.

Agnew and Aaron Burr were both indicted. Agnew on tax evasion charges and Burr for murder.

[Walt Starr]

19. Agnew was not indicted and Burr was not a sitting Veep when he stood trial

for treason.

So really, the indictment of a sitting Veep still has yet to be tested.

[DelawareValleyDem]

26. Burr was also indicted for murder in NY and NJ

for the fatal Hamilton duel. He never stood trial.

[Walt Starr]

30. So again, the indictment of a sitting Veep was never challenged

I expect Cheney to challenge if indicted. Then we'll know once and for all time if a sitting Veep can be indicted.

[Zynx]

12. Even Robert Bork determined the Veep can be indicted.

The president cannot though.

[rsdsharp]

14. Certainly a Vice President can be indicted

Vice President Agnew was indicted on tax evasion charges. He pled no contest. The Constitution provides that the only means to remove from office is by impeachment, but makes no reference to indictment. Technically, that could mean the President could be indicted, convicted, and in jail, and still be President. It's really an open question, though, as no sitting President has ever been indicted. Nixon was an unindicted co-conspirator in Watergate. The Paula Jones case was civil, not criminal.

[napi21]

15. I found this link that answers your question.

Can a VP Be Indicted?
News reports indicate that special counsel Patrick Fitzgerald "is focusing on whether Vice President Dick Cheney played a role in leaking a covert CIA agent's name." You may recall that during both the Nixon and Clinton years there was a debate as to whether a sitting President could be indicted while in office. Here's a very interesting 2000 Department of Justice memorandum, which includes a discussion of the debate that took place back in 1973, and which concludes:

... all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process.

With both the Clinton and Nixon administrations having so concluded, there would seem to be a bipartisan consensus on the point. For a colorful history of what happened the last time a Vice President was indicted, see the US Senate's biography of Spiro Agnew.

http://www.professorbainbridge.com/2005/10/can_a_vp_be_ind.html

[arwalden]

24. You're A Google Geek, Eh? -- Thanks!

[DelawareValleyDem]

16. Good memo on the topic

http://biotech.law.lsu.edu/blaw/olc/sitting_president.htm

[Spazito]

17. Here is the prevailing opinion by the DOJ, it has not been

challenged yet or ruled on by the USSC:

MEMORANDUM FOR THE ATTORNEY GENERAL

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.

The Department's consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel ("OLC") prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) ("OLC Memo"). The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) ("SG Brief"). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.

In this memorandum, we conclude that the determinations made by the Department in 1973, both in the OLC memorandum and in the Solicitor General's brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time. In Part I, we describe in some detail the Department's 1973 analysis and conclusions. In Part II, we examine more recent Supreme Court case law and conclude that it comports with the Department's 1973 conclusions.2

http://www.usdoj.gov/olc/sitting_president.htm

In this opinion, a sitting President cannot be indicted but the Vice President can.

[arwalden]

31. That Was Very Helpful... Good Reading...

thanks! :thumbsup:

[Tennessee Gal]

18. Regarding Agnew..

the Justice Department determined that a sitting Vice-President could be indicted and tried.

Agnew, when presented with the charges, which already had been leaked to the press and the public, at first vehemently denied any wrongdoing and vowed to fight for his integrity. He eventually appealed to the leadership of the House of Representatives to investigate the charges against him and even to impeach him if that body found him guilty of the charges in question. The leadership failed to oblige the Vice-President, leaving Agnew with the decision of the Justice Department that a sitting Vice-President could be indicted and tried. President Nixon meanwhile had taken a very neutral position, since he knew the evidence against Agnew to be overwhelming. Eventually he, along with Richardson, committed himself to securing Agnew's resignation as the easiest way out for what was obviously a very touchy situation.



These events built up during the summer and autumn of 1973, and while Agnew promised his supporters that he would fight to the end for his reputation, he in fact had already decided to have his lawyers begin plea bargaining with the Justice Department. The House and the President had both failed him, and he had no choice but to face the Attorney General. Richardson eventually secured the resignation of the Vice-President in exchange for Agnew's plea, before Fourth District United States Judge Walter E. Hoffman, of no contest to a charge of evading federal income taxes on a payment made to him by a state contractor. Judge Hoffman then gave Agnew a suspended prison sentence and a $10,000 fine, and allowed the Justice Department to publish a statement of its charges against the defendant which were then dropped. This settlement, achieved by secret plea bargaining, took the public by surprise; under ordinary circumstances, it would have created considerable public interest and shock. However, within the larger context of the Watergate scandal, attention tended to be fixed on President Nixon, who was moving toward his own resignation.

edit: added more info

[onenote]

22. President: Almost certainly no; VP : unclear

The DOJ's Office of Legal Counsel has twice opined (once during the Nixon years and once during the Clinton presidency) that a sitting president may not be indicted. While this is not "binding" it is exceedingly unlikly that Fitzgerald, or any other prosecutor, would go against this long held opinion. WHether the logic of the opinion extends to the VP is an interesting, and as far as I know, untested question.

Here's a link: http://biotech.law.lsu.edu/blaw/olc/sitting_president.htm

onenote

[DoYouEverWonder]

32. The freepers used to insist that you could indict a sitting president

back when they were trying to get rid of Clinton for any excuse that they could find.

[B Calm]

33. Vice President Aaron Burr was indicted for murder in both New York

and New Jersey.

http://www.bradblog.com/archives/00001932.htm