Can The President Be Indicted?

Can the president be indicted while still in The Oval Office? No one suggests that a president can never be indicted — ever. The question is if a president can be indicted in office.

Four government written memos going back 50-years lean towards, no. Of the four three are “no indictment” opinions and one “yes indictment” opinion. The three no documents were written by executive-branch attorneys and the yes option came out of the probe which pursued Clinton and led to Clinton’s impeachment.

What Does It Mean To Be Indicted?

An indictment in New York is a formal felony charge. Crimes are broken down into serious crimes, felonies, which are punished by state prison sentences. These are further broken down into A, B, C, D, and E felonies. There are less serious where they are tried such as in a country or state court. At the lowest level are misdemeanors — less significant crimes.

The maximum sentence on a misdemeanor is one year in county jail and are tried in a city, or town, court or even a village court.

For a Felony Charge, an individual won’t go to trial unless there is first an indictment.

In New York, a person doesn’t go to trial on a felony without there first being an indictment which is the formal felony charge.

A grand jury which consists of up to 24 persons, are shown evidence by the District Attorney’s Office. The grand jury then votes whether to send the case to trial. The grand jury seeks to answer one question: is there enough evidence to go to trial.

A Defendant Can Testify

The defendant can testify before a grand jury, but they usually don’t. They would have to waive immunity so anything they said could be used against them. The defendant as the right to testify but does not have the right to call witnesses to testify or present his side of the story. The District Attorney’s Office is not required to call witnesses.

The entire affair is a one-sided presentation by the DA’s office who presents the evidence and asks the grand jury to see if there’s enough evidence — or probable cause. Tom Wolfe, author of, The Bonfire of the Vanities,” wrote “a grand jury would indict a ham sandwich,’ if that’s what you wanted.” That’s closer to the truth than most know.

Get A Felony Charge In New York

Charged with either a misdemeanor or felony, the record, or charge, can be sealed. Outside those circumstances there is little opportunity in New York to have files sealed. Many attorneys ask the judge to grant what is called a Certificate of Relief from Civil Disability. A felony conviction means there are certain things the offender cannot do any more, but a Certificate of Relief from Civil Disability can remove some, or all, of the limits.

The Takeaway

Saikrishna Prakash who teaches constitutional at UVa says there is no constitutional answer to the question. “The text is silent. The limited immunities exclude the president.”

At this time, the only safe option for the prosecutor is to go to the grand jury and ask for a “true bill” of indictment.

All hell would break loose. But American politics has always been hell.