Patricia A. O'Malley

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Patricia A. O'Malley
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Prosecuting and Convicting American Presidents:  Myths and Facts
Yes, It can be done.
​​July 19, 2023





 

American political lore claims that it’s illegal to arrest or indict a sitting president.  That’s false.  In 1973, the US Department of Justice created a policy in which they refused to indict a sitting president – Richard Nixon.  But this is only their opinion, and DOJ internal policy, which they have maintained to this day.

The Constitution says no such thing.  And that’s the only thing that counts. 

Only the possible political and logistical calamities prevent an indictment. 

Former president Donald Trump is in a heap of trouble.  The US Department of Justice has indicted him in Florida for mishandling classified documents.  The Manhattan Criminal Court Grand Jury has indicted him for dozens of business fraud counts and for election finance fraud related to hush-money payments to Stormy Daniels.  US Justice Department Special Counsel Jack Smith has named him as a target of their investigation into the January 6 insurrection and efforts to overturn the 2020 presidential election results.  And the Fulton County, Georgia, District Attorney is reportedly close to indicting him for trying to overturn presidential election results there.  I think I listed everything.

REQUIREMENTS TO BE PRESIDENT
Our Constitution lists only three requirements to be president:

  • Be at least 35 years old
  • Reside in the US for at least 14 years
  • Be a “natural born” citizen.


 “Natural born” does not mean that one must have been born in the United States.  It means that one must be a citizen from the moment of birth and not have be naturalized at some later date.  You are a natural born citizen if at least one of your parents is a citizen, regardless of where you were born.
That’s why Sen. Ted Cruz – who was born in Canada – is eligible to be president.

The Constitution does not forbid anyone with current, past, or future criminal charges, indictments, trials, or convictions from running for or serving as president.  So Trump’s claims that he can’t be arrested, indicted, or tried for crimes while a candidate or an actual president are just bogus.
If he were right, then anyone could commit any crime and avoid arrest and prosecution merely by declaring their candidacy for president.

HISTORY
Two men have run for president from prison:
•    Eugene V. Debs, a labor leader and socialist, was convicted of espionage in 1917.  He ran against
      Warren G. Harding 1920.  He lost, but got nearly one million votes.

•    Lyndon LaRouche, a noted conspiracy theorist, ran in every presidential election from 1976 to 2004.
      But his 1992 campaign against William Clinton operated from prison where he was serving for mail
      fraud and campaign fraud conspiracy.  He lost too.

REALITY
While it’s legal to run for president while under indictment, or even behind bars, reality will interfere.
And while we have had presidential candidates in prison, we haven’t had an inmate president.  Yet.
How would those logistics work?

  •  How could the prison guarantee the president’s personal safety?
  •  How would the Secret Service do its job?
  •  How would White House Staff have access to the president?
  •  Would the media have access?
  •  How would the prison officials handle the moving of classified documents into and out of the prison?
  •  The Constitution does require that the president “… shall from time to time give to the Congress Information of the   State of the Union….”  Our government usually does that through an annual public speech to Congress et al in the   Capitol Building.  But that’s only tradition and is not required.  The president can send daily emails, or even tweets, if   s/he wants to.
  •  Would the president be subject to all of the same rules and procedures as the other inmates?
  •  What about visits from family members?
  •  What if s/he escapes from prison?


 We don’t have any of those answers.

PARDONS
Can the president pardon her/himself? 
The Constitution doesn’t prohibit it, so there’s really no way to know how any court would rule on the issue.  

This scenario probably didn’t occur to our founders, but I doubt they would have approved.  Lawyers, scholars, and pundits vary in their opinions, but those with the more legitimate credentials tend to believe that he can’t.

Presidential pardon power only extends to federal criminals.  S/he has no power over state criminals or prisons.  A governor could pardon or commute a president’s state-issued sentence, but is not required to do so.  That should be interesting to watch.  Politics are just great.

 
While it’s unlikely, if we do see a convicted/incarcerated president, s/he surely won’t be the first criminal in the Oval Office.

 
FOR MORE INFORMATION
Read the Constitution
US Department of Justice:  A Sitting President’s Amenability to Indictment and Criminal Prosecution. 
Business Insider:  You Can Run for President From Prison
Secret Service:  Frequently Asked Questions
Presidential Pardons and a Constitutional Crisis

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