On the question of whether a sitting president can be indicted, here’s an argument.

Article I, Section 3 of the Constitution, referring to the president, states:: “Judgement in cases of impeachment shall not extend further than to removal from office …” This language limits the role of the Senate to removing the president from office and does nothing more (i.e., “Don’t think that the Senate can punish the president. It can’t — that’s for the courts.”)

Section 3, referring to a president who has been convicted by the Senate, goes on to state: “… but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Thus, a conviction by the Senate doesn’t rule out a subsequent criminal court action against the president (i.e., “Don’t think that, just because a president has been ‘convicted’ by the Senate, the president can’t then be convicted in a court case. And don’t think that a subsequent court case constitutes double jeopardy.”)

No part of Section 3 therefore addresses the issue of whether a sitting president can be indicted. Nor does it rule out the indictment of a sitting president. Section 3 is about other questions.


Powers McGuire


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