In what could prove a game-changer for the second half of Donald Trump’s four-year term, incoming Speaker of the House of Representatives Nancy Pelosi said in an interview aired Thursday that a Justice Department policy saying a sitting president must not face criminal indictment may not be correct, strongly implying that Trump could be indicted while still in the White House, according to a report by the political news site Axios.
Pelosi’s statements in the interview make her the highest-ranking and most powerful government official to even suggest that Trump could face an indictment before he leaves office, according to MSNBC’s Kyle Griffin, writing on Twitter.
Justice Department memos dating back to the Watergate era of the early 1970s suggest that a president in office should not be indicted, and most recently, a DoJ policy issued on October 16, 2000, stated 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 constitutional scholars disagree on whether the Justice Department policy is correct. In a December 20 essay for the legal site Lawfare, Harvard University constitutional law professor Laurence Tribe wrote that “the text and structure of the Constitution, a serious commitment to the rule of law and plain good sense” would allow a president to be indicted for crimes.
In an interview with NBC’s Today Show that aired Thursday, Pelosi said that the Justice Department policy was not “conclusive,” and “not the law,” as quoted by the Huffington Post, adding that whether or not a president may be indicted while still in office remains “an open discussion in terms of the law.”
At the same time, Pelosi showed no immediate desire to see Trump indicted, saying that any such discussions should wait until Russia investigation special counsel Robert Mueller makes his findings about whether Trump conspired with Russia in the 2016 presidential election public, according to Politico.
“Let’s just see what Mueller does,” Pelosi told interviewer Savannah Guthrie. “Let’s spend our time on getting the results for the American people.”
Even the framers of the United States Constitution were conflicted over whether the Constitution permits the indictment of a president while still in office. According to a Washington Post historical account, founding father Alexander Hamilton argued that the impeachment process alone could remove a president from office, while another framer, James Wilson, believed that because the Constitution is silent on whether or not a president may be indicted, nothing prevents such an indictment from being handed down.