Hours before the 116th Congress began, Rep. Nancy Pelosi (D-Calif.) made clear she’s prepared to respect, even defend, the rule of law.
In an interview broadcast Thursday morning on the “Today” show, Pelosi was asked whether she believed special counsel Robert S. Mueller III should honor decades-old Justice Department guidance, which suggests a president should not be indicted while in office.
“I think that that is an open discussion in terms of the law,” said Pelosi, who became House speaker later in the day. She is now the highest-ranking government official to openly state what many experts have discussed for months.
The question isn’t whether a sitting president can be indicted. There is nothing in the Constitution that gives a sitting president immunity from indictment. The president has historically been viewed like any other citizen, required to follow the law and suffer consequences if he did not.
The question, however, is when exactly prosecutors can seek an indictment.
More than 40 years ago, during Richard Nixon’s imperiled presidency, the Justice Department concluded that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Since then, the Justice Department has issued memos and opinions (most recently in 2000) that do not foreclose the possibility of indictment, so long as further criminal proceedings are postponed until the president is no longer in office.
These guidelines, however, are not legally binding.
Trump attorney Rudolph W. Giuliani and others have cited the Justice Department guidelines, as well as the Supreme Court’s decision in a lawsuit brought by Paula Jones against then-President Bill Clinton, while speaking out against the possibility of indictment.
However, Walter Dellinger, who argued the Jones case on behalf of the government, called the long-standing policy against indicting a sitting president “a myth.”
In the Jones case, he argued that the court should postpone Clinton’s civil suit until the end of his presidential term. Ongoing litigation, he reasoned, would be too burdensome.
The court decided against the government in a unanimous decision. Thus, Clinton was not immune from the investigation; while president, he was deposed under oath and, had the case not been settled, would have been ordered to go to trial, too.
“The notion that a sitting president can’t be indicted cannot be a categorical rule,” Dellinger, now a Duke University law professor, said, adding that the White House should not be “a sanctuary from justice.”
"There are some experts who continue to believe the Constitution might at least require postponing any criminal trial until the president is out of office,” Harvard Law professor Laurence H. Tribe told The Washington Post.
So some have suggested alternatives. Tribe, for instance, said that if indicted, a president’s criminal trial could be postponed until the end of his term.
Recent developments in the Russia probe and related investigations suggest alleged indictable offenses may have been carried out to help Trump win the presidency in 2016.
“Even a federal prosecutor who is unwilling to test the DOJ non-indictment policy should be willing to name a sitting president as an unindicted co-conspirator,” Tribe said.
Tribe added: “To indict the web of business organizations, foundations, and committees through which a sitting president committed crimes to win office and covered up those crimes by obstructing justice, including indicting the family members managing those corrupt entities.”
Of course, if the Mueller team does report alleged crimes committed by the president, the House could move to impeach Trump, which is decided by a majority vote. Then the decision is sent to the Senate to preside over a trial for the underlying misconduct. Conviction and removal requires two-thirds of the Senate, or 67 votes. But, with Republicans in firm control of that chamber, that seems unlikely.
Democrats formally took control of the House on Thursday and have promised to aggressively pursue oversight investigations.
Pelosi was clear in her NBC interview: Congress will neither impeach for a political reason nor avoid it for the same.
The same seems to ring true for an indictment.
“Let’s see what Mueller does,” Pelosi said.