Former Obama-administration Attorney General Eric Holder believes that he has found a loophole in the Constitution that allows for a sitting president — implying Donald Trump — to be indicted, Law & Crime is reporting. The prevailing opinion among legal scholars is that a sitting president cannot be indicted, for reasons that will be explained in a moment.
On Monday night, Holder posted a Twitter message containing a legal opinion, from Harvard Law Professor Laurence Tribe, which does suggest that there is a way around the apparent barriers to impeaching a sitting president.
What The Constitution Says
As FBI special counsel Robert Mueller’s investigation continues to circle Donald Trump, the question has been raised about whether or not a serving president can be indicted for a crime. The general consensus in the legal community, backed up by a Nixon-era Justice Department memo, is that he can’t. That’s because the Constitution doesn’t provide clear direction on this.
High Crimes And Misdemeanors
In fact, the Constitution is almost frustratingly vague about the topic. The document allows for impeachment of the president for “high crimes and misdemeanors,” suggesting that he could only be charged with a crime once removed from office. Similarly, the founding document also grants the president the power to pardon, which means that a president possibly facing criminal charges could resign — and then be pardoned by his successor, as was the case with Nixon and Ford.
And in a 2000 memo, the Justice Department, in confirming a 1973 memo with similar language, said that a sitting president can’t be indicted.
“[T]he indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Enter The 25th Amendment
The 25th Amendment to the Constitution, ratified in 1967, lays out the succession of power in the event that the president “is unable to discharge the powers and duties of his office.” On its surface, says Holder, that language is intended to address the issue of a president being, for example, too ill, physically or mentally, to hold the office.
But Holder says that the Amendment also applies in the case of a presidential indictment.
“If a president is too occupied by a criminal case that they cannot run the executive branch… this could fall under the 25th Amendment.”
Of course, at this point Holder’s theory is just that: a theory. It hasn’t been tested in court, and indeed, may never be tested, as Donald Trump may not be indicted at all.
