The bulwark justification for a US Attorney to not indict a sitting president appears to lie in the US Justice Department's legal memo " A Sitting President's Amenability to Indictment and Criminal Prosecution", first published in 1973 and reaffirmed and summarized in 2000. Latest affirmation here.

Quoting from the 2000 OLC memo (emphasis added):

The 1973 OLC memorandum comprehensively reviewed various arguments both for and against the recognition of a sitting President’s immunity from indictment and criminal prosecution. What follows is a synopsis of the memorandum’s anal­ysis leading to its conclusion that the indictment or criminal prosecution of a sit­ting President would be unconstitutional because it would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure.

In the context of a state crime:

The question I pose: If it would be unconstitutional for the federal Justice department to indict, why wouldn't it be equally unconstitutional for a state to indict.

(Technically, I realize the state's attorney doesn't indict, a grand jury indicts, the state's attorney seeks an indictment - so please let's not go down that diversion/)

  • Just to clarify, do you mean before the president is impeached?
    – JJJ
    Apr 20, 2019 at 20:59
  • 1
    Yes, I am referring to a "sitting president"'.
    – BobE
    Apr 20, 2019 at 21:43
  • Right, so that could be clarified further. From Wikipedia: "Impeachment is the process by which a legislative body levels charges against a government official. It does not mean removal from office; it is only a statement of charges, akin to an indictment in criminal law."
    – JJJ
    Apr 20, 2019 at 22:07
  • I think this would fall to some sort of sovereign immunity argument, or some "implied power" argument where the courts hold that even though it's not technically disbarred that allowing it would severely impinge on things that are prohibited or protected. Executive privilege basically exists for this reason. It's not in the constitution, it's just been deemed necessary for the Executive to function as it is supposed to; it's only been loosely tied to separation of powers. But I'm not sure how to flesh out such an argument. Apr 20, 2019 at 22:36
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    Aren't you the same BobE who answered this on law SE: law.stackexchange.com/questions/31188/… ?
    – Fizz
    Apr 21, 2019 at 0:03

2 Answers 2



Politico has an article on this titled "Trump can’t run the Mueller playbook on New York feds" in which they talk about the Southern District of New York (SDNY) investigating Trump's businesses. Specifically on your question of a State indicting a sitting president, they write:

“I’m thoroughly convinced the SDNY will make its own evaluation. They will not say that’s a department policy,” said Jon Sale, a former SDNY and Watergate prosecutor who is close with Trump personal lawyer Rudy Giuliani. “They’re obviously looking at the president and I wouldn’t rule out that they could decide you can indict a sitting president.”

Trump's attack-Mueller playbook can’t be replicated in New York. For starters, the bounds of what SDNY is looking at don’t deal with Trump’s tenure in the White House, meaning any pushback on executive privilege grounds won’t fly. Trump’s lawyers have said they’ve resisted Mueller’s attempts to get the president to answer questions about potential obstruction of justice matters dealing with his time in the Oval Office. And they continue to signal the president’s team should be allowed to review the special counsel’s finished report to ensure it doesn’t violate the president’s rights.

They also quote the president's lawyer, Rudi Giuliani, who was himself a prosecute at the SDNY a long time ago (quote from the same Politico article):

“The president and his lawyers are upset about the professional prosecutors in the Southern District of New York going after a noncrime and the innuendo the president was involved,” Giuliani, who served as the U.S. attorney leading SDNY for more than five years during the Reagan administration, told CNN in December.

But in an interview with POLITICO on Friday, Giuliani downplayed any broader concerns that his former office posed a wider threat to the president.

“The same thing will happen as has happened over the last two years with all of these things. They’ll run them down and they’ll find out the president didn’t do anything wrong. Not a darn thing,” Giuliani said.

The Attorney General, William Barr, also weighed in on the matter (quote from the same Politico article):

Barr said SDNY’s work stands on the other side of a red line that he wouldn’t let Trump cross. Pressed by Democratic senators during his confirmation hearing last month, the soon-to-be attorney general said he’d protest the removal of SDNY’s head if he thought the president had nefarious intentions.

“I would not stand by and allow a U.S. attorney to be fired for the purpose of stopping an investigation,” Barr said.

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    Didn't get to the politico read yet, but keep in mind that the SDNY is a Federal district, consequently they would be (theoretically) under Barr and the US prosecutors policy manual that constrained Mueller. What I'm wondering about is if the State's attorney general would be constrained by this same claim (position of the OLC) that the State was acting unconstitutionally.
    – BobE
    Apr 20, 2019 at 23:27
  • @BobE interesting, I didn't know that. Notice Barr's comments at the end of my answer, though.
    – JJJ
    Apr 20, 2019 at 23:31
  • But Barr's comments would not change the fact that the policy of the DoJ is that it cannot prosecute or seek an indictment of a sitting president. The US attorney for the SDNY is an officer of the DoJ. This answer does not address the question at all.
    – phoog
    Apr 22, 2019 at 1:25
  • @phoog it does provide some insight of people with experience or authority. As for your comment about the DOJ memo, does that in itself make it unconstitutional? If you can say something about that I'd suggest writing an answer based on that. As for this answer, it's not complete but I think it's interesting enough to warrant being an answer.
    – JJJ
    Apr 22, 2019 at 1:55
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    @FrankCedeno how is the Mueller investigation not a law enforcement investigation? Mueller was not appointed by Congress; he answered to Department of Justice. It was a DoJ investigation authorized under 28 CFR 600.1, which explicitly concerns criminal investigations. When you say "political investigation" it sounds like you're talking about a Congressional investigation of the executive branch, or something like that, which the Mueller investigation was certainly not.
    – phoog
    Apr 22, 2019 at 19:15

Nobody Knows

The memo you cited mentions this in a footnote:

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 cnminal prosecution of a sitting President. See Clinton v Jones, 520 U S 681, 691 (1997) (noting that a state cnminal prosecution of a sitting President would raise “federalism and comity” concerns rather than separation of powers concerns) [emphasis added]

A reading of Clinton v. Jones notes that the Supreme Court did not adopt a general rule to settle this question, even though some justices wanted to, because Clinton v. Jones took place in federal court. So, this question has never been tested in any court.

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