The impeachment of Mike Pence
While much is being made about Rudy “Gloss Over” Giuliani’s statements (since backed down from) that Special Counsel Robert Mueller’s legal team has advised the Trump legal team that a sitting president cannot be indicted, consistent with Justice Department Guidelines, given the challenges of the job, one thing is clear- a Vice President has no protections or immunities, nor does any other Executive Branch.
The Impeachment Judgment Clause provides for indictment, stating:
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.
The provision makes no distinction or exception for the President, but Justice Department analysis has concluded against indictment while in office. The same analysis has determined that the Vice President could be indicted. In a 2000 Memo for the Attorney General, “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” reported the conclusions of a 1973 Memo from the Office of Legal Counsel and a second memo in connection with then-Vice President Spiro Agnew:
The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew…. [T]hen-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution.
Professor Ronald Rotunda, who died earlier this year, came to a different conclusion regarding indicting a sitting president for independent counsel Kenneth Starr during the Bill Clinton investigation. In The Washington Post on July 27, 2017, he restated his conclusions:
If the framers wanted to protect the president from prosecution while in office and to make impeachment the sole mechanism for proceeding against a president, they could and would have said so….[Q]uestions about ‘crippling’ the government are not compelling, and the precedents in favor of the power to indict a sitting president were strengthened with the Supreme Court’s ruling that a private sexual harassment lawsuit against Clinton involving alleged conduct before he took office could go forward …. As I wrote in the memo to Starr, ‘If the president is indicted, the government will not shut down, any more than it shut down when the Court ruled that the president must answer a civil suit brought by Paula Jones.’ In addition, the 25th Amendment offers another answer to the government-could-not-proceed objection…
Special Counsel Robert Mueller and other prosecutors will decide how to proceed with the president, but everyone agrees no other Executive Branch officeholder is immune.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.