Rudy “Gloss Over” Giuliani, the personal lawyer to President Donald Trump, is now claiming that Special Counsel Mueller’s legal team has a told the Trump legal team a sitting president can’t be indicted, because of Justice Department Guidelines, due to the challenges that come with the job. We shouldn’t be in a rush to buy the Giuliani claim- recall prior leaks indicated that Mueller gave Trump lawyers questions and other related items.
The Impeachment Judgment clause allows for indictment:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
A 2000 Memo to the Attorney General said, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” reported the findings of a 1973 Memo coming from the U.S. Office of Legal Counsel:
The memorandum concluded that the plain terms of the Clause do not impose such a general bar to indictment or criminal trialprior to impeachment and therefore do not, by themselves, preclude the criminal prosecution of a sitting President.
That 1973 OLC Memo said that it is the responsibilities of the presidential office that prevent indictment while being president. The 2000 Memo said the same. As the Library of Congress stated in its exhaustive research on and interpretation of the U.S. Constitution concluded:
A second issue arose that apparently has not been considered before: whether persons subject to impeachment could be indicted and tried prior to impeachment and conviction or whether indictment could only follow removal from office.
This is an untested issue. The closest the Supreme Court came to addressing the problem in criminal matters is the decision for Nixon v. Fitzgerald. The specific language likely is just dicta (language that is not power-based because the issue is not being dealt with by the court), but the four justices in dissent for that case said:
But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress, or by the States, for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar ‘Indictment, Trial, Judgment and Punishment, according to Law.’ Art. I, § 3, cl. 7.
Chief Justice Warren Burger, for a concurring opinion for the case, claimed the “immunity is limited to civil damages” and that the President, like other Americans, is “not immune for acts outside official duties.” This will be played out soon and based on Giuliani’s statements, nobody should believe the matter is closed. Mueller is secretive and keeps his cards close to his chest – we shall find out what hand he is holding and how he chooses to play it.