Here’s a link to a pdf copy of the oft-mentioned DOJ memo:
A Sitting President’s Amenability to Indictment and Criminal Prosecution.
The 2000 Memo proceeds from he analysis begun in a 1973 DOJ memo written during the early days of the Watergate investigation and addresses it along with the text of the Impeachment Clause:
The OLC memorandum began by considering whether the plain terms of the
Impeachment Judgment Clause prohibit the institution of criminal proceedings
against any officer subject to that Clause prior to that officer’s conviction upon
impeachment. OLC Memo at 2. The memorandum concluded that the plain terms
of the Clause do not impose such a general bar to indictment or criminal trial
prior to impeachment and therefore do not, by themselves, preclude the criminal prosecution of a sitting President.
This is where the “originalist” conservatives justices, who I personally think are peddling snake oil, have to either admit their “intent of the framers” as the sole basis for Constitutional interpretation is invalid or be willing to allow a President to be indicted and tried. If ever the intent of the framers mattered it would be with how to deal with a tyrant because, when they drafted the Impeachment Clause, they had just rid themselves of a tyrant.
The 2000 memo also concedes both it and the 1973 memo did not address whether a state could indict a sitting president:
The Department’s previous analysis also focused exclusively on federal rather than state prosecution of a sitting President. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns that may be implicated by state criminal prosecution of a sitting President. See Clinton v Jones, 520 U S 681, 691 (1997) (noting that a state criminal prosecution of a sitting President would raise “ federalism and comity” concerns rather than separation of powers concerns)
Clinton v Jones was a civil claim that was allowed to proceed. The logical extension from Jones is that if a sitting President has to deal with a pre-inauguration claim for sexual harassment a President has to deal with a pre-inauguration crime prosecution because a crime is more important than any law suit.
But I always say, the arrest for a state crime is the tricky part.
TimInHonolulu 