//  7/25/17  //  Commentary

Can a sitting president be indicted? Can he pardon himself? After he leaves the White House, can he be convicted of obstruction of justice for actions taken while in office? Can the granting of a pardon be an independent crime?

This post offers no answers to any of those questions. (My colleague Eric Posner and I discuss all of these issues in a longer draft article posted on SSRN.) My claim here is more modest: Much of the disagreement—though not all of it—on these and similar constitutional questions arises from the fact that when commentators offer answers, they are often answering one of four fundamentally different queries: a literal question, a doctrinal question, a predictive question, and a normative question. And of these four questions, only one really deserves our sustained attention.

Let’s take, as an example, the issue of whether a sitting president can be indicted. Literally, the answer is easy: Yes. All it would take is for 12 members of a federal grand jury to vote to indict the president. Likewise, the president can—literally speaking—pardon himself: he can sign a piece of paper that says “NOW THEREFORE I, Donald J. Trump, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2 of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Donald J. Trump for all offenses against the United States which he, Donald J. Trump, has committed or may have committed prior to July 24, 2017.” The literal question is separate from the question of whether the indictment would be dismissed or the pardon would be honored. The literal question is, in other words, not terribly interesting.

Now, when some people ask whether the president can be indicted (or whether he can pardon himself, or whether he can be convicted for obstruction), they are asking a doctrinal question: Is there a binding legal precedent that supplies the answer? And usually, the answer to the doctrinal question is also uninteresting: No authoritative legal source resolves the matter. If it did, we wouldn’t be having the debate.

Let’s return to the indictment question. The Justice Department’s Office of Legal Counsel says that a sitting president cannot be indicted because that “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” But opinions of the Office of Legal Counsel are not the law; they are the opinions of the Office of Legal Counsel. Meanwhile, a recently revealed 1998 opinion letter solicited by then-independent counsel Kenneth Starr concludes that at least under certain circumstances, a sitting president can indeed be indicted, though perhaps not imprisoned. But that is not the final word either: it is simply the view of one constitutional law professor (an eminent constitutional law professor, but still not the law).

Another way of approaching the indictment question is to imagine how the Supreme Court might rule if it heard a case involving a motion to dismiss an indictment of the president. This is a predictive question: Would at least five of the nine justices allow the indictment to stand? The answer to that question will depend on the particular composition of the Supreme Court at the time the matter is heard and—perhaps—on the political valence of the charges in the underlying case. Such predictions are necessarily uncertain and historically contingent. The probability that five Republican-appointed justices would uphold an indictment against President Trump might not be the same as the probability that the Rehnquist Court would have upheld an indictment against President Clinton or that the Burger Court would have upheld an indictment against President Nixon. And in none of these cases is it reasonable to say that the probability is 0% or 100%.

A final angle is to ask whether a court should rule that a sitting president can be indicted. The answer to that question depends, in turn, on one’s general theory of constitutional interpretation. Philip Bobbitt’s six modalities of constitutional argument—structural, textual, ethical, prudential, historical, and doctrinal—all come into play here. We might ask: What inferences can be drawn from the structure of our constitutional system and from the text itself that bear on the president’s indictability? Do the shared ethical commitments of Americans across generations point us toward an answer? What is the rule that best balances the costs of indictment (e.g., interference with the president’s ability to fulfill his constitutional responsibilities) against the benefits (e.g., vindicating the proposition that no man or woman is above the law)? What insights can we glean from the framers and ratifiers themselves and from the last two and quarter centuries of experience? And even if there is no precedent that answers the question directly, how do the principles embedded in constitutional doctrine shape our thinking on the matter?

The normative question is, I think, the most interesting of the four, and the only one that really ought to command our time and energy. The answer to the normative question will bear on the predictive question, because Supreme Court justices are swayed by structural, textual, ethical, prudential, historical, and doctrinal arguments too. But while answering the predictive question amounts to an exercise in tea-leaf reading at a single point in time, answering the normative question (or, at least, attempting to answer it) generates insights that can be useful for courts and other actors in the legal system not just today, but at later times when these issues inevitably pop up again.

In sum, instead of asking “can a sitting president be indicted?” or “can the president pardon himself?”, we ought to ask: would a good-faith interpreter of the Constitution, approaching the question through the accepted modalities of constitutional argument, conclude that a sitting president can be indicted or that a president can grant a valid self-pardon? Framing the question this way does not make it all that much easier to answer. But at least it ensures that we are not talking past each other, and that we are having a conversation of lasting relevance. 


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