Constitutionally speaking, there are officially two ways in which a president can be removed from office. But a third option may exist which could be lawful, according to incoming Democratic Speaker of the House Nancy Pelosi.
Speaking with NBC anchor Savannah Guthrie on Today, Pelosi suggested that President Donald Trump, who is likely under scrutiny by Russia investigation special counsel Robert Mueller, could absolutely be indicted after he leaves office.
“[What about] a president who’s in office?” Guthrie asked. “Could Robert Mueller come back and say, ‘I am seeking an indictment?'”
Pelosi didn’t give an affirmative “no” answer but left open the idea that a president could be indicted.
“I think that’s an open discussion in terms of the law,” Pelosi said, according to reporting from CNN.
Some Democrats have suggested that Trump deserves to be impeached. Even if a majority of members of the House of Representatives agree and decides to impeach the president based on as-yet hypothetical criminal offenses Mueller does discover, there’s a huge hurdle to pass when it comes to actually removing Trump from office — two-thirds of the Senate, currently controlled by Trump’s Republican Party, have to vote to indict him, an unlikely outcome at this time.
Impeachment is one way in which the Constitution lays out how to remove a president from office. A second way is through the 25th Amendment, which states that a vice president and a majority of the president’s cabinet can remove a president with the consent of Congress, if they deem the commander in chief incapable of carrying out his official duties, according to the Constitution Center.
The question of indicting a sitting president outside of those parameters is contentious. According to a memorandum from the Department of Justice in 2000, seeking an indictment of the chief executive is strictly advised against.
“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” that memo states.
Yet other legal minds differ on the matter, suggesting that the Justice Department memo is not figuratively enshrined in stone. Former Attorney General Eric Holder, for instance, who served under former President Barack Obama, believes that memo is moot because the 25th Amendment provides mechanisms for dealing with a president who cannot perform his or her functions.
“Executive branch paralysis during the criminal process is not a compelling argument,” Holder wrote in a tweet in early December, according to reporting from Law and Crime.