In a recent
opinion piece, I argued that the text and structure of the Constitution, a serious commitment to the rule of law and plain good sense combine to preclude a rigid policy of “delaying any indictment of a president for crimes committed in winning the presidency.” When a scholar I admire as much as Philip Bobbitt strongly disagrees and argues otherwise
in this publication, I need to rethink my position and respond—either confessing error or explaining why I continue to hold to the views I originally expressed.
Not to extend the suspense, I haven’t changed my mind. My op-ed argued against the
Office of Legal Counsel (OLC)
memos opining that the Constitution prevents the indictment of a sitting president. Nearly everyone concedes that any such policy would have to permit exceptions. The familiar hypothetical of a president who shoots and kills someone in plain view clinches the point. Surely, there must be an exception for
that kind of case: Having to wait until the House of Representatives impeaches the alleged murderer and the Senate removes him from office before prosecuting and sentencing him would be crazy. Nobody seriously advocates applying the OLC mantra of “no-indictment-of-a-sitting-president” to that kind of case.
...
Thus, even if trial and sentencing are to be delayed, there is a compelling case for indicting such a president in plain view and offering him a choice. If he wishes, he could be publicly tried and invoke Section 3 of the 25th Amendment if he is ready to certify that the burdens of criminal trial prevent him from “discharg[ing] the powers and duties of his office” so that those powers and duties devolve on the Vice President for the duration of the trial. Or his trial could be deferred if he expressly agrees, as a binding condition of such postponement, that he will not invoke the statute of limitations or accept a pardon to avoid trial and possible conviction once he is no longer in office. This seems to me the very least that the American legal system should ensure whenever the crime with which the president is charged goes to the very legitimacy of his role as leader of the government and head of state.