“The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,”

Robert Mueller (May 2019)

Special Counsel Robert Mueller’s final report stated, “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.   At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”  Despite Attorney General Barr’s and the President’s claims to the contrary, no such statement of exoneration was made.

The only stated reason an indictment was not forthcoming was a decades-old Department of Justice policy preventing a sitting president from being charged with a federal crime.  The Justice Department’s justification preventing a criminal case from being brought against a president is that it, “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.”

As the Supreme Court has yet to determine whether a sitting president can be criminally indicted, the Justice Department’s 1973 and 2000 memos on the subject are the only guidance for federal prosecutors.

While Article II, Section 4 of the Constitution states, “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” nowhere is there any language prohibiting a sitting president from being charged, indicted or even convicted for federal of state crimes.  Given the concerns and careful consideration the Founding Fathers gave to the creation of the office of president, had they wanted to shield a criminally-liable president they would have explicitly carved out such protections. 

Not only does Mueller’s Constitutional argument fail to pass muster, the DOJ’s rationalization of its policy is utter nonsense!   Suggesting that a president’s “unique official duties cannot be performed by anyone else” suggests that even the Vice President, Speaker of the House and other members of the presidential succession list are incompetent to step into the shoes of the president, for whatever reason. 

Such a highly questionable and spurious policy sets a dangerous precedent and a threat to our democracy.  No American should be inoculated from facing justice if convicted for their alleged crimes and, in the case of a president, could embolden them to engage in additional illegal activities for which the average citizen would face swift justice.  Moreover, preventing the indictment of a sitting president could potentially allow the statute of limitations for the alleged crime(s) to expire before they leave office, potentiality obviating any criminal liability.

Once an independent investigation determines there is sufficient evidence of criminal activity on the part of any sitting president, although it would fail to meet the threshold for Impeachment, which would justify the prosecution of the average citizen, an appropriate indictment must be made against that president.  Interestingly, recent reports indicate a draft indictment of President Trump was drafted by DOJ personnel and then quietly squashed.

If a sitting president is indicted and his defense interferes with his ability perform his responsibilities as president, then they have an obligation to temporarily step aside and allow the Vice President to serve as acting president until they have been exonerated or can otherwise fully resume their duties.

In a nation where equal protection under the law is a fundamental axiom, there can be no exceptions to the concept that no individual is or should be above the law!