Understand that there is no case law, in other words no legal precedent, that has ever stated that a sitting President cannot be charged, or indicted for committing a crime. That is fact.
There are only four government memos, some as old as twenty-five year, that attempt to address this issue. Government memos, I repeat, written by a number of lawyers. These are opinions, not settled case law. Not precedent (I’m repeating this for emphasis.) In other words, they are someone’s idea, not a ruling by a court such as a lower court or even the Supreme Court.
The initial memo, from 1973, was issued by Nixon’s Office of Legal Counsel. It could find no answer in the Constitution. The Constitution addressed only impeachment, not prosecution afterwards. The Justice Department lawyers then decided that criminal proceedings against a President should not go beyond the point at which they could remove a sitting President because that would be a “short cut” to full impeachment.
A memo from Robert Bork shortly thereafter takes it for granted that this Justice Department opinion is valid and decides that they do not apply to the Vice President. Aaron Burr, indeed, served the last year of his term under indictment by New York and New Jersey. Bork, however, wrote: “a President has complete power over the execution of the laws,” making prosecution of himself by himself absurd.”
After that, twenty-seven years later, in United States versus Nixon, a court required Richard Nixon to turn over his tapes in a criminal case against other defendants. In Clinton versus Jones it was ruled that Bill Clinton could not stay a sexual harassment suit against him until leaving office. But during the Clinton impeachment the Office of Legal Counsel concluded that only elected officials of Congress could possess the extraordinary power of deciding to initiate a proceeding that could remove a sitting President.
Ronald W. Rotunda, however, a distinguished constitutional scholar, advised Special Counsel Kenneth Starr that Bill Clinton could be indicated because “The U.S. Supreme Court has repeatedly reaffirmed the statement that no one is above the law.” In other words, a sitting President could be criminally investigated and charged.
The long and the short of it is that no one can tell with certainty whether a sitting President can face indictment while in office until some prosecutor goes to a grand jury and asks for a “true bill” of indictment.
And that is the point of this article. Why in the hell haven’t the Democrats done this? (If they lost, what difference would it make?) Instead, they have meekly shied away from such a confrontation which, at the very least, has resulted in the acceptance of the status quo.
I am a staunch Democrat, myself. Yet I despair because the Democrats are our only hope. Their view is to bet it all on one roll of the dice, win or lose, flipping the Senate, keeping the House and ousting Trump, all in one fell swoop. (A very big “if”, considering the barriers the Republicans erect incessantly such as stopping the mails, gerrymandering, voter discrimination, social media campaigns designed to besmirch Democratic candidates.)
In short, the Democrats seem to be the Party of being afraid to really challenge the Republicans with hard-hitting, action-oriented steps such as court cases, relentless social media campaigns, withholding of funding for government groups that commit illegal acts, and other, more creative measures.
Maybe this message will get through and change things. Otherwise it is just, as I said, one roll of the dice that will decide if we remain a Democracy.