'White House Arrest?' Legal Experts Disagree About Prosecuting A President | KUOW News and Information

'White House Arrest?' Legal Experts Disagree About Prosecuting A President

Jul 18, 2017
Originally published on July 18, 2017 8:28 pm

The debate over whether the president of the United States can be charged with a crime is as old as the country itself.

Early evidence comes from the diary of a Pennsylvania senator, who recorded "a heated debate on this very issue" in September 1789, said Hofstra University Law School professor Eric Freedman.

"For those who believe in original intent, we have pretty good evidence of original intent," Freedman said. "The founders just disagreed on the very question."

The words of the Constitution aren't much help either. It talks about impeachment, removing a president from office. But the document is vague on the issue of whether a president can be indicted while he holds the office.

"We tend to talk about it as one big on-off switch," explained Harvard Law School professor Andrew Crespo. "But, really, the question ought to be: Can he be investigated, can he be indicted, can he be made to stand trial, can he be sentenced? And the burdens imposed by each of those steps of the process are different."

And so, that debate has raged.

In the 1970s, lawyers for the special prosecutor investigating Watergate argued the president could be charged while in office. In the 1990s, attorneys working for Whitewater independent counsel Kenneth Starr favored impeachment over criminal prosecution.

And it continues to rage today, just weeks into the work of Russia special counsel Robert Mueller — who may be a long way from charging anyone with wrongdoing, let alone President Trump.

But Freedman of Hofstra said the conversation is about more than legal rules. Rather, he said, it's about the kind of country we are.

"If we really believe that we are a nation of laws, then making the president subject to the rule of law in this sense is very important, symbolically as well as practically," he said.

Most constitutional lawyers agree a president can be investigated. But the consensus breaks down when it comes to what happens next. "The president cannot be indicted, prosecuted and tried while serving in office," Harvard Law School professor Alan Dershowitz told Fox News last month.

Dershowitz pointed out the Justice Department has twice concluded that indicting a sitting president would undermine the executive branch and its duties under the Constitution.

"The only mechanism the Constitution provides is he could be impeached and once impeached and removed from office he could then be charged with a criminal trial," Dershowitz said.

But he said a sitting president cannot, according to the Justice Department.

Whether the special counsel for Russia is constrained by those Justice Department conclusions is an open question. On paper, Mueller reports to the deputy attorney general — so many experts believe he would be bound by DOJ interpretations.

In any event, constitutional lawyers said, there are practical problems to prosecuting and punishing a president who is still living in the White House.

In 1998, Georgetown law professor Susan Bloch imagined the consequences at a Senate Judiciary Committee hearing.

"The notion that the president could be subject to something like house arrest, I guess we would call it White House arrest, or to a special tracking bracelet, I think is quite absurd," Bloch testified.

The president, she said, is unique, at least until he leaves 1600 Pennsylvania Ave.

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AUDIE CORNISH, HOST:

President Trump and his attorneys say he's not under investigation, but members of Congress and legal experts aren't so sure. Special counsel Robert Mueller is looking into Russia's interference in last year's election and links between the Trump campaign and people in Russia. That raises the question - can a president be indicted? Here's NPR's Carrie Johnson.

CARRIE JOHNSON, BYLINE: The debate over whether the president of the United States can be charged with a crime is as old as the country itself.

ERIC FREEDMAN: There is contemporary evidence from a diary of a senator who was sitting on the floor of the first Senate and recorded in his diary a heated debate on this very issue.

JOHNSON: Eric Freedman is a law professor at Hofstra University. He's written about that record from a Pennsylvania lawmaker in September 1789.

FREEDMAN: For those who believe in original intent, we have pretty good evidence of original intent. The founders just disagreed on the very question.

JOHNSON: The words of the Constitution aren't much help either. It talks about impeachment - removing a president from office - but it's vague on the issue of whether a president can be indicted while he still holds the office. Andrew Crespo teaches law at Harvard and raises the issue this way.

ANDREW CRESPO: We tend to talk about it as one big on or off switch, but really the question ought to be, can he be investigated? Can he be indicted? Can he be made to stand trial? Can he be sentenced? And the burdens imposed by each of those steps of the process are different.

JOHNSON: And so that debate has raged. In the 1970s, lawyers for the special prosecutor in Watergate argued the president could be charged while in office. In the 1990s, attorneys working for the Whitewater independent counsel, Ken Starr, favored impeachment over criminal prosecution, and today, just weeks into the work of Russia special counsel Robert Mueller. Mueller may be a long way from charging anyone with wrongdoing, let alone President Trump, but Eric Freedman of Hofstra says the conversation is about more than legal rules. He says it's about the kind of country we are.

FREEDMAN: If we really believe that we are a nation of laws, then making the president subject to the rule of law in this sense is very important symbolically as well as practically.

JOHNSON: Most lawyers agree a president can be investigated, but the consensus breaks down when it comes to what happens next. Law professor Alan Dershowitz shared his view on Fox News last month.

(SOUNDBITE OF ARCHIVED RECORDING)

ALAN DERSHOWITZ: The president cannot be indicted, prosecuted and tried while serving in office.

JOHNSON: Dershowitz points out the Justice Department has twice concluded that indicting a sitting president would undermine the executive branch and its duties under the Constitution.

(SOUNDBITE OF ARCHIVED RECORDING)

DERSHOWITZ: The only mechanism the Constitution provides is he could be impeached. And once impeached and removed from office, he can then be charged with a criminal trial.

JOHNSON: But he says a sitting president cannot, according to the Justice Department. Whether the special counsel for Russia is constrained by those Justice Department conclusions is an open question. On paper, Robert Mueller reports to the deputy attorney general, so many experts believe he would be bound by DOJ interpretations. In any event, constitutional lawyers say, there are practical problems to prosecuting and punishing a president who's still living in the White House. In 1998, Georgetown law professor Susan Bloch imagined the consequences at a Senate hearing.

(SOUNDBITE OF ARCHIVED RECORDING)

SUSAN BLOCH: The notion of the president being subject to something like house arrest - I guess we would call it White House arrest - or to a special tracking bracelet I think is quite absurd.

JOHNSON: The president, she says, is unique, at least until he leaves 1600 Pennsylvania Avenue. Carrie Johnson, NPR News, Washington.

(SOUNDBITE OF SAN FERMIN SONG, "BRIDE") Transcript provided by NPR, Copyright NPR.