There's no legal document that says sitting American presidents can't be indicted: legal expert
President Donald Trump. (DOD photo by U.S. Navy Petty Officer 2nd Class Dominique A. Pineiro)

In spite of Rudy Giuliani's claims, one legal expert insistently pointed out that there is no legal document barring American presidents from being indicted.


Feminist legal analyst and Daily Kos judicial affairs editor Rebecca Buckwalter-Poza wrote that arguments for and against indicting the president are as manifold as there are opinions on Trump himself. What most of those arguments lack, however, is the simple point that no law or legal document bars such an indictment.

"There’s no line in the Constitution, case from the Supreme Court, or federal law to say that the president can’t be indicted," Buckwalter-Poza noted. "Rather, the closest we’ve gotten from the Supreme Court—Clinton v. Jones, in 1997—was a unanimous vote that the president can be sued and subject to a civil trial while in office."

In Clinton v. Jones, "the justices found the potential disruption to the presidency wasn’t unconstitutionally burdensome," and that standard would apply "in the case of a criminal trial" as well.

The only way to truly put the issue to the test, Buckwalter-Poza wrote, would be for it to go to the courts — and the best and most direct way to force it would be to indict.

Despite the Justice Department's historical insistence that presidents can't be indicted, there exist "two stronger memos proving 40 years’ confidence that the president is indictable," the analyst wrote.

"The Office of the Special Prosecutor investigating [Richard] Nixon concluded in 1974 that Nixon could be, even had to be, indicted at the conclusion of its investigation," she wrote.

"Independent Counsel Ken Starr reached the same conclusion in May 1998," Buckwalter-Poza added. "He leans on a few key, common sense arguments: No one’s above the law. "

Finally, a 1973 appeals court decision about whether Nixon could be forced to submit to a grand jury "shreds the claim that the president isn’t indictable."

"Though the President is elected by nationwide ballot, and is often said to represent all the people, he does not embody the nation's sovereignty," the judicial panel wrote. "He is not above the law's commands."

Though many legal documents conclude that presidents can be indicted, Buckwalter-Poza noted, only the DOJ can indict.

"Even if DOJ were willing to indict, the question is less whether the president can be indicted than whether it’s a good idea to indict him. The first problem is the specter of constitutional crisis," she wrote. "The second, the threat of having Brett Kavanaugh cast a fifth vote to protect any and all occupants of the office of the president from indictment."

But as a friend remarked to the writer: "Don’t rule out the possibility that Trump will be indicted at 12:01 am on January 20, 2021."