Much has been made of the Justice Department’s standing opinion that a sitting president cannot be indicted while in office. That’s an opinion, not settled law, and one that is the subject of lively debate among legal scholars. Norman Eisen and Elizabeth Holtzman argue:

There is no explicit declaration in the text of our Constitution that provides immunity to the president while in office for crimes that he or she commits. In addition, while the text of the Constitution is silent on presidential immunity, it is explicit on congressional immunity. No member of Congress may be prosecuted for what is said during speech and debate.
Plainly, the Framers knew how to provide for immunity when they wanted to — so their failure to do so for the president strongly implies that they didn’t believe it was appropriate in that case.
The closest the Constitution comes to addressing the matter is Article I, Section 3, which provides that after impeachment and removal from office, an individual “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
This provision does not imply that prosecution takes place only when a president is out of office; it is simply intended to show that impeachment is not the only remedy for presidential crimes.

None other than Kenneth W. Starr is of the opinion that a president can be indicted. “President Clinton said in the civil setting—not criminal—I should be immune from a civil lawsuit during the course of my tenure as president, and the Supreme Court unanimously said, ‘No, Mr. President, there’s no basis in our rule of law, in constitutional order, for you to enjoy ... a timeout,’” Starr reasons. “As important as civil litigation is to the individual litigant and to the rule of law, the vindication of the criminal laws is all the more important.”

Likewise, constitutional scholar Laurence H. Tribe posits, “Nothing in the Constitution supports treating amenability to the criminal process as something that kicks in only after a civil officer has been impeached and removed.” He argues, “To treat a sitting president as immune to that process until his presidency ends is to superimpose upon the impeachment framework—a framework designed as the way to remove a president who commits an impeachable offense that might or might not also be a federal crime—something quite extraordinary in a system priding itself on the axiom that no one is above the law.”

In any event, public opinion is overwhelmingly in favor of indicting a sitting president who has committed a crime. Americans have a strong distaste for impeachment but overwhelmingly favor prosecution when appropriate. “Voters say 71 - 21 percent, including 49 - 38 percent among Republicans, that any president should be subject to being charged with a crime while in office, rather than after a president leaves office,” the latest Quinnipiac poll reports. “But voters say 60 - 35 percent that Congress should not begin the process to impeach President Trump.” Voters also have faith that special counsel Robert S. Mueller III is conducting a fair investigation, by a 48 percent to 38 percent margin. Moreover, “Voters approve 45 - 38 percent of the way Mueller is handling his job. Trump does not respect the rule of law, voters say 56 - 40 percent.”

We find it unlikely, however, that Mueller would depart from standing Justice Department guidelines that posit a sitting president should not be indicted. It’s for this reason that I’ve argued in favor of indicting, if facts warrant, the Trump Organization, which according to testimony of Michael Cohen and others was intimately involved in payment of hush-money payments prior to the 2016 election, a crime to which Cohen pleaded guilty.

Former Justice Department spokesman Matthew Miller recently was quoted as saying, “I mean it seems pretty clear to me that the Trump Organization has criminal liability here." He added: "You have the fraudulent contract with Cohen. And then you have the fact that they used corporate money to reimburse a campaign contribution. So that looks like a couple different crimes to me.” He further noted: "That’s one thing you could do is you could indict the Trump Organization and possibly the unnamed executive, and then in that indictment you just make all of the facts public and you name the president as an unindicted co-conspirator.”

In sum, the public has consistently been wary of impeachment, perhaps with the partisan Clinton impeachment effort in mind. Now, while recent events (e.g. Syria, the looming shutdown, the departure of Defense Secretary Jim Mattis, Trump’s dishonesty regarding Saudi Crown Prince Mohammed bin Salman’s involvement in Jamal Khashoggi’s murder) might be loosening Trump’s grip on Republican senators, his removal by the Senate has so far been seen as a long-shot and disfavored avenue. Nevertheless, if Trump is found to have engaged in a widespread pattern of illegal activity, it’s not out of the question that indictment of his alter ego, the Trump Organization, would become the most viable and popular mechanism for addressing possible wrongdoing — at least until the president is voted out and can be prosecuted personally.

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