It has been perceived as received wisdom that sitting presidents can not be indicted. In fact, that was regarded as an open question in the early days of the Watergate. My impressionistic recollection is that the strategic decision was made by investigators that there was no point in providing Nixon an additional area of defense and distraction. Now we have a fascinating perspective from Obama’s legal counsel, undercutting the then used public rationale for that conclusion, reflected in 1973 and 2000 DOJ Office of Legal Counsel Opinions, and the conclusion itself. Bob Bauer on Lawfare:
OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”
However, Bauer argues persuasively, from both the Nixon record and current events that the Opinion, which viewed investigation as appropriate, but not indictment, simply ignores reality:
. . . Mostly the opinion fell back on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.
But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.
Bauer then goes on to bring in the 25th Amendment, and its provisions allowing a president to temporarily withdraw from the presidency, or, more likely in the real world, be declared unable to fulfill the duties of his or her office.
A president who faced what the OLC termed the “substantial preparation” required for a criminal defense, and the “dramatically destabilizing effects” of criminal process on his capacity to govern, would have a clear choice under the 25th Amendment. The same choice is open to the vice president with the support of the Cabinet if they reach this conclusion but the president resists.
Simple bottom line. Just because the possibility of indictment would be disruptive to a president and governance is not a sufficient argument for forbidding such indictment. Investigation and impeachment are allowed and are disruptive enough, and remedies exist for the disruption.
As I have argued before, given Trump’s utter self-absorption and unpredictability, the argument for a process that ultimately puts him under some form of restraint is compellingly in the national interest. Otherwise, who knows what a Trump post-presidency would look like — “Take this plane to Moscow.”