Is the President Above the Law? Trump Unlikely to Face Criminal Charges Unless He Is Impeached

When Richard Nixon uttered the phrase “When the president does it, that means it is not illegal” during his infamous and revealing interviews with British presenter David Frost in 1977, later brought even more dramatically to light in 2008’s Ron Howard film Frost/Nixon, the sheer audacity of the statement cemented what many believed of the disgraced former commander in chief. Nixon thought because he was head of the executive branch, he could do anything he wanted.

That's not entirely true, of course. But while a sitting president is still beholden to United States criminal laws, none has ever seen the inside of a criminal court.

The question of whether the commander in chief is above the law has come into play in recent days amid accusations that President Donald Trump attempted to obstruct justice when he allegedly asked former FBI Director James Comey in February if he would “let go” of the investigation into former national security adviser Michael Flynn. A New York Times report Tuesday claimed Comey kept notes about his meetings with the president, and the Trump administration’s newest scandal was born.

During his first four months in office, many words have become associated with Trump’s administration. None have good connotations: Russia, Flynn, Comey, leaks, illegal, impeachment. And all point to a certain level of potential corruption, or even treason, greatly hindering what was supposed to be a time of tremendous change under the Republican Party, whose agenda has been derailed day after day by a president and White House staff that cannot seem to corral their commander in chief or keep him off Twitter.

No matter what happens next, prosecuting a president is a daunting legal challenge. As Republicans like House Speaker Paul Ryan call for more information before judgment and Democrats like Senator Angus King suggest impeachment hearings are on the horizon for Trump, it's worthwhile to take a closer look at what kind of charges the president could face in the near future.

The U.S. Constitution states “treason, bribery and other high crimes and misdemeanors” are grounds for impeachment. The process would begin in the House of Representatives. A simple majority ruling there moves the process to the Senate, where a two-thirds majority is required to convict and remove a high-ranking executive from office. Impeachments can also be applied to vice presidents, federal judges and other federal officials, like senators.

Brought over from England, the term “high crimes and misdemeanors” is quite broad, and there is great debate among legal scholars about how it could be applied to an impeachment of the president, Saikrishna Prakash, a professor of law and senior fellow specializing in constitutional law and presidential powers at the University of Virginia’s Miller Center, tells Newsweek in a phone interview. The debate centers on whether any such charge must arise from the executive’s work or if it must involve an actual crime. 

According to Prakash, the evolution of what a president can and cannot be charged with comes back to Nixon and the famous case of Nixon vs. Fitzgerald, which involved the president firing a former civilian Air Force analyst and the pursuit of damages. The Supreme Court found in Nixon’s favor, 5-4, in 1981, stating the president “is entitled to absolute immunity from damages liability predicated on his official acts."

“When it comes to the president, some think it would be odd for some state prosecutor to bring a charge against the president and have him sitting in jail,” Prakash said.

But years later, in 1997’s Clinton vs. Jones, the Supreme Court declared that a president could be sued in federal courts. “[Clinton’s] principal submission—that ‘in all but the most exceptional cases,’ the Constitution affords the president temporary immunity from civil damages litigation arising out of events that occurred before he took office—cannot be sustained on the basis of precedent,” Justice John Paul Stevens wrote for the court at the time.

The case stemmed from President Bill Clinton's legal claim that he wasn't subject to civil lawsuits because he was serving as commander in chief. He was being sued at the time by Paula Jones, a former Arkansas state employee who claimed he had sexually harassed her while he was governor. The case eventually resulted in Clinton’s impeachment after he lied under oath.

So what about criminal charges? The fact remains that impeachment is a political process. Criminal penalties or sentences cannot be levied by Congress. And federal lawyers in the Attorney General’s office have determined in the past that it's unconstitutional to indict a sitting president because it would keep the executive branch from performing its job.

“An impeachment proceeding is the only appropriate way to deal with a president while in office,” Assistant Attorney General Robert Dixon explained in 1973 in the first opinion of the Justice Department’s Office of Legal Counsel.

That doesn't mean presidents are above justice. Once they leave the White House, they could still face a criminal case over their actions before, during or after their stint in the Oval Office.

Presidents, however, tend to have influential friends who can keep them out of trouble. President Gerald Ford helped Nixon avoid possible jail time by pardoning him a month after he resigned in 1974. Back then, Ford cited the idea that Nixon couldn’t receive a fair trial and “ugly passions would again be aroused” during a process that could’ve taken months to reach a verdict.

Someday soon, Trump may very well need the same favor from Vice President Mike Pence.

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