The question of whether a sitting president can be indicted has never actually been litigated in court, but there is a Department of Justice memo which would seem to suggest it goes against DOJ policy. Specifically, a DOJ memo written in 2000 states:
“A necessity to defend a criminal trial and to attend court in connection with it … would interfere with the President’s unique official duties, most of which cannot be performed by anyone else… To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.”
And yet, we live under a system of laws put forth in the Constitution which says no man is above the law, even the highest elected official in the United States.
All of this begs the obvious question when it comes to the investigation being conducted by Special Counsel Robert Mueller which focuses on actions taken by members of Donald Trump’s 2016 campaign and possibly by Trump himself: Will Mueller seek a criminal indictment against President Trump?
A panel of legal experts recently convened by Attorney IO said that the president can indeed be indicted and that Mueller likely already has a sealed indictment with Trump’s name on it.
The law professors who gathered to discuss the matter made it clear that in order to assure Trump doesn’t escape paying for the crimes he may have committed, Mueller has obtained a sealed indictment from a grand jury which will not be unsealed until Trump leaves office. As Alexander Stern of Attorney IO notes:
“Mr. Trump, through his lawyer Rudolph Giuliani, has relied on this idea that indicting him would be too distracting. However, the old adage ‘what he doesn’t know can’t hurt him’ rings true here. If Mr. Trump does not know he is under indictment due to a seal, the constitutional pitfalls associated with distracting a sitting president fall away.”
A sealed or secret indictment would remove the apparent Justice Department prohibition against indicting a sitting president while also maintaining the supremacy of the law and how it applies to everyone, no matter their office:
“The Department of Justice would arguably act unconstitutionally if it publicly indicted a sitting president. The weight on such a defendant’s mind would reduce his ability to perform his function. However, there is no such concern if the defendant is unaware of his own prosecution. Additionally, there are competing constitutional problems with saying someone is above the law by virtue of his employment status as president. A secret indictment would effectively eliminate both concerns of distractedness and issues of unwarranted immunity for criminal behavior.”
The probability that Trump has already been indicted is high. And even if he isn’t impeached, he can immediately be tried in court the second the title of president no longer applies to him.
In other words, no matter how you look at it, Donald Trump is screwed.