With prosecutors saying this week in court documents that Donald Trump ordered illegal payments made to “hush” two women just weeks before the 2016 presidential election, Trump may have moved one step closer to being named an “unindicted co-conspirator” in those crimes, for which his former lawyer Michael Cohen was sentenced to three years in prison, according to Politico. But according to a current Justice Department policy, Trump himself cannot be indicted for this crimes, or any crimes, as long as he holds the Oval Office.
Or can he? The current Department of Justice policy, which dates back to 1973, states that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
But according to a former high-ranking DoJ official in the administration of President Barack Obama, who spoke Friday to Yahoo! News, “That cannot possibly be the Constitution of the United States, which is built entirely on a rebellion against King George’s powers in this respect.”
Neil Katyal, who served as both deputy and acting solicitor general under Obama, told reporter Michael Isikoff that effectively granting Trump immunity from prosecution as long as he is in office would be “literally putting the president above the law,” and therefore in opposition to the intent of the Constitution’s framers.
In fact, during the investigation of President Bill Clinton by Independent Counsel Kenneth Starr in 1998, Starr produced a legal opinion memo stating the exact opposite of the Justice Department policy, according to Lawfare. “President Clinton is subject to indictment and prosecution,” the Starr office memo said, though actually imprisoning the president before he leaves office may cross the line, according to that opinion.
Katyal’s view echoed the opinion of Democratic House Representative Adam Schiff, who on Wednesday called on the Department of Justice to “re-examine” the policy that appears to prevent the indictment of a president, CNN reported.
“I don’t think that the Justice Department ought to take the position — and it’s certainly not one that would be required in any way by the Constitution — that a president merely by being in office can be above the law by waiting out the statute of limitations,” Schiff said.
The statute of limitations on the campaign finance crimes for which Cohen was convicted and Trump was implicated would expire in 2021, according to research by PBS, meaning that if Trump were to win reelection in 2020, he could never be indicted or prosecuted for the two campaign finance felonies under the current Justice Department policy.