Opinion

COFFEY: Can A Sitting President Be Indicted?

(Photos by Brendan Smialowski and JIM WATSON / AFP) (Photo by BRENDAN SMIALOWSKI,JIM WATSON/AFP via Getty Images)

Justin Coffey Associate Professor, Quincy University
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It’s a question that’s never been answered. But one Joe Biden might soon face it now that Attorney General Merrick Garland has appointed Special Counsel Robert Hur to investigate his handling of classified materials. Hur’s inquiry could lead to the creation of a federal grand jury, which could weigh charges against Biden and set up a possible constitutional crisis.

Biden is not the first president to face federal investigation. Richard Nixon, Bill Clinton, and Donald Trump did too. The first two faced charges over events while in office, while Trump and Biden both have faced special counsel investigations over actions predating their presidential tenures.

In 2017, Trump’s Attorney General Jeff Sessions named former FBI Director Robert Mueller to examine possible collusion between the Trump campaign and Russia during the 2016 election. Ultimately Mueller found no evidence of any crimes so the question of indictment never materialized. But if Hur decides that Biden broke the law, could he request the grand jury to indict? 

According to a longstanding Justice Department policy, the answer is no. As the Watergate scandal engulfed the Nixon presidency, the Department issued the famous OLC Memo stating that an incumbent president could not be indicted. This has been the policy since then, on the basis that it would undermine the executive’s ability to carry out its constitutionally-mandated duties. 

On March 1, 1974, a federal grand jury indicted seven former Nixon aides on various counts of conspiracy to obstruct justice and perjury. Although not announced at the time, the grand jury also named Nixon as “unindicted co-conspirator.” The members had wanted to indict Nixon as well but prosecutor Leon Jaworski persuaded them that such a move was legally questionable. 

By that point, the House of Representatives had already begun an impeachment inquiry into Nixon. Although Nixon denied any involvement in a cover up and maintained his innocence, he resigned in August 1974 when it became clear that the House would impeach and the Senate would convict and remove him from office. 

It is possible that Hur will conclude that Biden was simply negligent with the classified materials and that no crimes were committed, thus avoiding the thorny constitutional question. Another option is for Hur to seek  indictment but for Garland to overrule him. Finally, Hur could argue Biden might have broken the law, send his findings to the House of Representatives and let Congress decide whether to impeach. 

To complicate matters, the Constitution is silent on the issue. Article I, Section 6 grants congressional immunity for members of the House and Senate when they are performing their official duties.

 “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” 

But the document provides no guidance for whether a president enjoys immunity from prosecution.

Hovering over the Biden inquiry is the specter of Donald Trump, who is currently under investigation for mishandling classified information. If Special Counsel Jack Smith pursues an indictment against Trump, could that force Hur’s hand? Republicans would certainly cry foul if Trump is arrested and charged but Biden is cleared of any wrongdoing.

All of this shows the question of whether the President of the United States can be indicted is as much a political question as a legal one. We have never had an answer. We might get one soon. 

 

Justin Coffey is a professor of history at Quincy University.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.