On the day she is set to reclaim the gavel as Speaker of the House, Rep. Nancy Pelosi (D-CA) made some surprising comments in a TV interview.
Interviewed on the Today show Thursday morning by Savannah Guthrie, Pelosi was asked if she believes that special counsel Robert Mueller should observe the Justice Department’s established guidance that a sitting president cannot be indicted while in office.
“I do not think that is conclusive,” Pelosi said. “Let’s just see what Mueller does. Let’s spend our time on getting results for the American people.”
When asked by Guthrie whether Mueller could indict Trump, Pelosi replied that “I think that is an open discussion.”
The no-indicting-the-sitting-president norm is a Justice Department guidance, but it is not a law nor is it enshrined in the Constitution. An indictment, however, would not come from Congress, which does not have the power to prosecute.
Special counsel Mueller’s probe into Russian interference in the 2016 election is ongoing. In the event that Mueller uncovers crimes or wrongdoing by President Trump himself, Congress will be faced with the question of whether to pursue impeachment of the president. If it’s determined that a president cannot be indicted while in office, Trump would then potentially face charges either after his impeachment or possibly after leaving office.
No sitting president of the United States has ever been indicted. Richard Nixon, after resigning in 1974, was pardoned by his successor Gerald Ford. Bill Clinton was impeached in 1998, although he was not removed from office and never faced criminal charges after the completion of his term.
Irrespective of the Mueller probe, the new Democratic majority in the House is expected to launch numerous investigations of the president and his administration as well as aspects of Trump’s business life prior to his presidency. Now that the House Democrats have subpoena power, a source told Axios back in November that the House is preparing a “subpoena cannon” aimed at various aspects of the administration. The Democrats say they are expecting the administration to fight them on some of the requests and for those battles to take place in the courts.
Should Mueller uncover illegal acts by the president, while also determining that Trump cannot be indicted while in office, and Trump isn’t impeached, it would set up an unprecedented dynamic in the 2020 election in which the president would not only be running for re-election, but would risk indictment in the event that he lost.