On Thursday, likely incoming Speaker of the House Nancy Pelosi sounded a bit addled when she was repeatedly asked by NBC News reporter Savannah Guthrie as to whether a sitting president could be indicted. While Guthrie repeatedly pressed the question, Pelosi left the answer open, saying that Department of Justice guidance that states a sitting president cannot be indicted was “not conclusive,” but then consistently confusing a sitting president with a president who has left office.
At first, Pelosi seemed to understand the question. Guthrie asked, “Do you believe the special counsel should honor and observe the Department of Justice guidance that states a sitting president cannot be indicted?”
Pelosi responded, “I do not think that is conclusive. No, I do not.”
Guthrie, determined to get Pelosi on the record that President Trump could be indicted, followed by querying, “Do you think it’s possible that Special Counsel Mueller could, legally, indict a sitting president?”
Pelosi evaded, “Let’s just see what Mueller does. Let’s spend our time on getting results for the American people.”
Guthrie, still on the prowl, “As you well know, there is long-standing Department of Justice guidance that states a sitting president should not be indicted, but it is not the law.”
Pelosi, showing she didn’t understand what a “sitting president” was: “I don’t agree with that. That’s not the law. Everything indicates that a president can be indicted after he is no longer president of the United States.”
Guthrie, attempting to clarify the issue for Pelosi: “What about a sitting president?”
Pelosi, completely in the dark: “Well, a sitting president, when he’s no longer president of the United States—“
Guthrie, getting exasperated: “A president who is in office: could Robert Mueller come back and say, ‘I am seeking an indictment?’”
Pelosi, back to square one: “I said that that is an open discussion. I think that is an open discussion in terms of the law.”
According to Walter Dellinger, who served as acting solicitor general of the United States from 1996 to 1997, there are various legal briefs and memoranda that reflect the federal government’s position on the matter of indicting a sitting president. A September 24, 1973, memo signed by the head of the Office of Legal Counsel, Robert Dixon, argued that no express provision of the Constitution conferring any immunity upon the president existed but “criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his official duties that it would amount to an incapacitation.” He considered the possibility that a sitting president could be indicted but a trial could be held after he left office, and concluded that although “physical interference” with the president’s duties would not result, no indictment should be issued because of the reputational damage to the president.
An October 5, 1973, brief for the United States regarding the case against former Vice President Spiro Agnew argued that a president could not be indicted while in office, but the vice president was not immune from an indictment.
A February 12, 1974, memorandum to Independent Counsel Leon Jaworski concluded, “there is nothing in the language or legislative history of the Constitution that bars indictment of a sitting president, but there are a number of ‘policy’ factors that weigh heavily against it.”
In a June 21, 1974, reply brief for the United States in US v. Nixon, Dellinger notes “Jaworski rejected Nixon’s premise that a president could not be indicted, stating that ‘It is an open and substantial question whether an incumbent President is subject to indictment.’ The brief argues for indictability before concluding that it is unnecessary to decide that question in order to resolve whether to permit his inclusion as an unindicted co-conspirator.”
A 2000 Office of Legal Counsel memorandum, signed by Assistant Attorney General Randolph Moss, 2000 OLC Memorandum argued that a sitting president should not be indicted because it would cast a “cloud” over the presidency.
The Washington Post reported:
The Supreme Court has never weighed in on this question directly. In United States v. Nixon, a 1974 decision, the court ruled that “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” In Nixon v. Fitzgerald, a 1982 decision, the court ruled that the president had immunity from civil lawsuits arising from his actions in office. But in Clinton v. Jones, a 1997 decision, the justices ruled that the president enjoyed no immunity from civil suits arising from his conduct while he was not in office.