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“You cannot indict a sitting president” is nowhere in the Constitution nor law. It’s an opinion first offered up by Richard Nixon’s Department of Justice when he was under criminal investigation & re-affirmed by Bill Clinton’s DoJ when he was under criminal investigation.
Our entire legal theory that a president is above the law & cannot be charged for criminal acts so long as he or she is in office is based on nothing more than the opinions of people who were hired by presidents who had a vested interested in pushing that fiction as legal truth.
As many times as I’ve heard people wax poetic about the intent of the founders that we should have a “president, not a king,” a lot of folks sure are fine with entertaining the notion that presidents ought to have kingly privileges that allow them to live above the law.
Under the theory that a president cannot be indicted, a president could spend four years as a serial killer. But she can’t be indicted. Only Congress can impeach. What if the evidence is rock solid, but Congress is so partisan they refuse to accept it or call it “fake news?”
But imagine you can get a majority in Congress and 2/3 of the Senate to actually do something about this fictional future serial killer president. Many people who believe you can’t indict a president also believe a president’s pardon power is absolute—she can pardon herself.
So now Congress has impeached, convicted, and removed our serial killer president. But surprise! She pardoned herself at the last minute. Now she’s no longer president. But she can’t be indicted for her murders, because she pardoned herself with her absolute pardon power.
How about a less extreme example? A president, just before taking office, commits some pretty awful crimes (robbery, assault) and investigators find solid evidence 2 years in. But they can’t indict while he’s president. And he gets re-elected because the DoJ kept the info hidden.
Under that theory that a president can’t be indicted, a president could commit as many crimes with six-year statutes of limitations as they wanted in their first two years in office. So long as they get re-elected and run out the statutes, they’re golden. They get away with it.
The idea that a president cannot be indicted for their crimes while in office just doesn’t hold up to the common sense smell test. It’s nowhere in the Constotution or in law and is in fact incompatible with the spirit of both. So why do we insist on repeating this fiction?
