WASHINGTON (Reuters) – The US Constitution explains how Congress can dismiss a president for "serious crimes and misdemeanors" through the impeachment process. But the Constitution does not say whether a president can be prosecuted, and the US Supreme Court did not directly address the issue.
FILE PHOTO: US President Donald Trump speaks at a campaign rally at the Mohegan Sun Arena in Wilkes-Barre, Pennsylvania, United States, Aug. 2, 2018. REUTERS / Leah Millis / Photo File
The issue is the focus of special advocate Robert Mueller, who is preparing a report on his investigation into Russia's role in the 2016 US election, on whether President Donald Trump's campaign has conspired with Moscow and if Trump illegally attempted to obstruct the investigation.
The US Department of Justice policy, several decades ago, that a sitting president can not be indicted, which indicates that criminal charges against Trump would be unlikely, according to legal experts.
Here is an explanation of the reason for being the policy of the Department of Justice and if it applies to Mueller.
WHAT IS THE MINISTRY OF JUSTICE'S POLICY?
In 1973, in the midst of the Watergate scandal involving President Richard Nixon, the Office of the Legal Counsel of the Department of Justice adopted in an internal memo the principle that a sitting president could not be charged. Nixon resigned in 1974 when the House of Representatives decided to remove him.
"The show of an impeached president who is still trying to fulfill the duties of CEO exceeds the imagination," said the memo.
The department reaffirmed this policy in a 2000 memo, stating that the court decisions taken in the meantime had not changed its conclusion that a sitting president was "constitutionally protected" from prosecution and prosecution criminal. He concluded that criminal proceedings against a president "would violate the constitutional separation of powers," delineating the authority of the executive, legislative, and judicial branches of the US government.
"The indictment or criminal prosecution of an incumbent president would unconstitutionally impair the ability of the executive to perform the functions assigned to it by the Constitution," the memo says.
The memos of 1973 and 2000 are binding on Justice Department employees, including Mueller, according to many legal experts. Mueller was appointed in May 2017 by Rod Rosenstein, the number two in the department.
But some lawyers argued that the founders of the nation could have included a provision in the Constitution protecting the president from prosecution, but did not do so, suggesting that an indictment would be admissible. According to this view, the immunity of the president violates the fundamental principle that no one is above the law.
In 1977, Nixon himself had expressed an opposite view when he told interviewer David Frost: "Well, when the president does, it means it's not illegal."
MUELLER'S INDEX TRUMP CAN DESPITE EXISTING POLICY?
Perhaps. The Department of Justice regulations governing Mueller's appointment allow him to depart from departmental policy under "extraordinary circumstances" with the approval of the Attorney General of the United States, the highest official of the United States. law enforcement in the country. William Barr, appointed by Trump, currently holds the position.
Some legal experts have suggested that Mueller could invoke this exception if he discovered serious wrongdoing and lacked confidence in the split Congress's ability to hold Trump accountable. Some lawyers also stated that Mueller was not bound by memos from 1973 and 2000 as he was not a typical ministry employee.
Ken Starr, who investigated President Bill Clinton in the 1990s in the somewhat different role of independent counsel, conducted in 1998 his own analysis of whether a sitting president could be charged, indicating that he did not consider the memo of the Ministry of Justice of 1973 as binding. him.
Starr did not put Clinton into indictment as part of his investigation into the president's relationship with Monica Lewinsky, a trainee at the White House, but lawyers at his office concluded that he had been arrested. authority, according to a previously secret internal memo made public by The New York Times. in 2017.
After the expiry of the Independent Lawyers Act, under which Starr was appointed in 1999, the Department of Justice developed procedures governing the appointment of special advocates to conduct certain investigations. Mueller was named after the FBI director, James Comey, who had been fired by Trump and who had overseen the agency's investigation in Russia.
CAN THE TRUMP BE REMOVED FROM THE OFFICE AND THEN THE PROSECUTION?
Yes. There is no debate as to whether a former president can be indicted for conduct that took place during his tenure. In fact, President Gerald Ford, who succeeded Nixon after his resignation, became aware of it by granting "a complete, free and absolute pardon to Richard Nixon for all the offenses against the United States that he committed or may inflict. have committed. "
The limitation period – which limits the time within which legal proceedings such as lawsuits can be brought – can be beneficial to Trump if he is re-elected in 2020 and serves two full four-year terms as president until January. 2025.
Many federal crimes have a five-year limitation period, which means that prosecutors have five years from the date the conduct in question occurred to constitute an indictment. This means that criminal proceedings against a re-elected Trump could be prescribed.
Some lawyers have stated that, for the sake of fairness, the usual rules on speed of charges should not apply to the president. The issue could potentially be resolved in court.
Report by Jan Wolfe; Edited by Will Dunham