Publication Date
6-1-2023
Abstract
Whether a sitting president can be prosecuted while in office has been a debated question with no clear answer. During Watergate and the Whitewater investigations, special and independent counsels struggled to decide whether to indict a sitting president. On one side, the Department of Justice (DOJ) guidelines prohibited indictment, on the other, prosecutors were concerned with potential harm to the rule of law if there was no indictment. In most circumstances, a president who engaged in criminal activities should face impeachment, as the Constitution mandates, rather than be subject to criminal proceedings while in office. The only exception is if the president engaged in treasonous criminal conduct. This Article discusses the constitutional method of addressing criminality within the Executive Branch. Through an examination of the impeachment process, including analysis of President Trump’s impeachment, this Article explores the potential benefits and weaknesses of pursuing such action. Next, this Article examines whether a sitting president can be indicted. The DOJ guidelines are at odds with the mandates establishing special and independent counsel investigations faced with this very decision. Finally, this Article recommends that treason is the only criminal statute that overrides the sanctity of the Executive Branch. Treason is the only offense that would justify the indictment of a sitting president. This infrequently used criminal statute seeks to protect the integrity of the country and punish betrayal by those who benefit from its protections. A president not only owes allegiance to the United States but also swore oaths to take office. Against this backdrop, this Article discusses the Mueller Report along with the House of Representatives’ Report on aid being withheld from Ukraine
First Page
847
Recommended Citation
Tiffany R. Murphy, Impeachment vs. Indictment: How to Handle Criminality in the Executive Branch, 100 Denv. L. Rev. 847 (2023).