Conventional wisdom — based on nothing more than two memos written by the Department of Justice’s Office of Legal Counsel — is that a sitting president cannot be indicted. But the issue has never actually been adjudicated in court, so it remains unclear if such a move would be allowed under the Constitution.
However, two other memos authored by the Office of Special Counsel that investigated Richard Nixon and the Office of the Independent Counsel that investigated Bill Clinton, argue the opposite: A president is not above the law and can indeed be subject to indictment.
So which is it? Can you indict a sitting president?
Two Watergate prosecutors say the answer is a resounding YES.
Jon Sale worked for the U.S Attorney’s office in the Southern District of New York (SDNY) and was also on the team that prepared to impeach Nixon. He told Politico:
“I’m thoroughly convinced the SDNY will make its own evaluation. They will not say that’s a department policy. They’re obviously looking at the president, and I wouldn’t rule out that they could decide you can indict a sitting president.”
Nick Akerman also worked in the SDNY and on the Watergate prosecution team, and he agreed, saying the Southern District’s investigation is even more dangerous to Trump than the one being conducted by Special Counsel Robert Mueller:
“When you combine their experience with the traditional independence of the Southern District and the reputation it has, this is like another Mueller investigation going on.”
Even Chris Christie, who served on the Trump transition team, thinks Trump is in serious legal jeopardy from the SDNY:
“This is why I’ve been saying for months that the Southern District of New York investigation presents a much more serious threat to the administration, potentially, than what Bob Mueller is doing.”
Keep in mind the Southern District was largely responsible for the downfall and guilty plea of Trump’s former attorney, Michael Cohen, and now they’ve issued subpoenas to the Trump inaugural committee, looking at crimes ranging from conspiracy against the United States to money laundering.
Donald Trump can and will be indicted before this entire matter is finished. The evidence is too damning to do otherwise.