The 2024 Executive Power Survey – Presidential Indictability -

2024 Executive Power Survey

Where the Presidential Candidates Stand on Indictment of a President

The Justice Department’s Office of Legal Counsel — first under the Nixon administration during the Watergate scandal, and then under the Clinton administration during the Whitewater/Lewinsky scandal — has asserted that sitting presidents are immune from criminal indictment and trial and so any such criminal process has to come after they leave office. That view bound the special counsel Robert S. Mueller III in the Russia investigation and now binds the special counsel Robert K. Hur in the Biden documents investigation.

For all: Is this the correct interpretation of the Constitution? If not, would you instruct your attorney general to rescind those O.L.C. opinions? If so, would you sign legislation tolling the statute of limitations for criminal offenses by presidents so that it does not run out while they are in office and temporarily immune from indictment?

Additional question for President Biden only: In the 2020 candidate survey, you criticized the O.L.C.’s reasoning and wrote that if elected, you would “promptly direct the attorney general to order a comprehensive review of these opinions.” But The New York Times reported this year that you had not done so. Why didn’t you, and what will you now do?

Yes, I would sign legislation tolling the statute of limitations for criminal offenses by presidents.

The president is not above the law. Under the framework laid down by the Constitution, it is up to the coequal legislative branch of Congress to hold the president accountable for high crimes and misdemeanors. I agree with the longstanding Justice Department position that a sitting president cannot constitutionally be indicted, but an impeached president who has been removed from office for violations of the law can.

I would support “tolling legislation” that appropriately balances upholding the sanctity of the law with ensuring that the United States does not devolve into a banana republic in which prosecutorial authorities are abused for politically motivated witch hunts.

Yes. I was on the House Judiciary Committee during the impeachment hearings on President Clinton. No one is above the law, including a president. But the idea that a sitting president is immune from criminal indictment while in office seems to be constitutionally sound. That being said, Congress holds the power of impeachment to hold a president accountable for any criminal activity, providing a mechanism for addressing such matters while in office, and should a president be impeached and removed from office, he could then be held accountable for any criminal offenses.

In theory, I would consider supporting such legislation, but it would greatly depend on the details of the legislation.

Yes, as an attorney, I agree with the O.L.C. opinions, which are based on a carefully reasoned and grounded understanding of the law and an appreciation of the president’s unique role in our constitutional system. I believe that any ultimate resolution of this issue requires further bipartisan deliberation. I support legislation clarifying that any limitations period is tolled while the president is in office.

At the same time, a president should not acquire lifetime immunity for crimes committed in office or shortly before assuming office.

As president, I have fulfilled my campaign promise of restoring a strong and independent Department of Justice led by top-flight legal professionals dedicated to realizing the ideal that this nation was founded on of equal justice under the law. This means no one is above the law — especially the president of the United States.

The Office of Legal Counsel is correct but incomplete. In any House of Representatives investigation of the president for impeachable misconduct, the president is stripped of any privilege to resist congressional demands for information, including the privilege against self-incrimination, the attorney-client privilege, executive privilege and state secrets privilege. Presidential invocation of any of these privileges would be grounds for impeachment, conviction and removal from office.

I would sign legislation tolling the statute of limitations during any time of presidential immunity, but think that is already the law.