The news this month is full of accounts of chief executives facing indictments. In Missouri, Gov. Eric Greitens has been charged with criminal invasion of privacy. In Israel, Benjamin Netanyahu is expected to be indicted for “bribery, fraud and breach of trust.” Both men are expected to stay in office despite criminal charges. The cases highlight a looming question in Washington about whether President Trump could also be indicted in office.
With 19 people charged by special counsel Robert S. Mueller III (including five cooperating witnesses), some believe a case against Trump is imminent. “I’d bet against the president,” a lawyer for a target of the Russia probe told Politico. But even some of Trump’s critics assert that, unlike governors or foreign leaders, the president of the United States cannot be indicted while in office. Many scholars like Yale professor Akhil Reed Amar insist that “The Framers implicitly immunized a sitting president from ordinary criminal prosecution.”
The “implicit” part is the problem. This remains a matter of interpretation and, in my view, a faulty and dangerous one. The case for collusion or obstruction of justice does not yet appear to exist, but if it did, Mueller could indict the president.