3

There's been a lot of discussion in the media lately about the question of whether a sitting president can be indicted.

The Constitution says that in order to be vice-president one must have the same qualifications that the Constitution requires of the president (being at least 35 years old, being a "natural-born citizen", etc.).

How much do the questions of indictment of the president and indictment of the vice-president have in common?

Am I right in thinking that in 1973 the vice-president actually was indicted (for having taken bribes when he was governor of Maryland)?

3

Vice President Aaron Burr was indicted in his last year as Vice President in both New Jersey and New York. The crime was killing Alexander Hamilton in an (illegal) duel. His solution? Simply don't go to those states.

Eventually the charges were dropped on technical reasons. But it was nevertheless clear that no one considered it a particular problem for a sitting Vice President to be indicted in multiple states at a time, or even just one.

This bit of history is even mentioned in the revised DOJ opinion referred to in Putvi's answer. Ultimately that opinion decides that the comparison between a Vice President and President is apples-to-oranges nonsense—their relative levels of power, importance, and constitutional stature are radically different—, and no substantive inferences could be made from a VP's indictability to the President's.

Of course, this DOJ opinion is just the opinion of DOJ lawyers. It is not a court opinion, nor otherwise binding. It does strike me as well-written and logically strong, but it is wholly untested in a court of law (SCOTUS or otherwise). It is simply their advice on what the best course of action the DOJ can take is, given their particular function and powers within the US government and overall constitution. The main conclusion being that those functions and powers are inadequate for the DOJ to decide if it is constitutionally sound to indict a sitting President (that's a job for the judiciary), and so simply advises that they avoid that powder keg and never do so. The opinions actually do specifically hold that it might be constitutional in the right situations; they simply conclude they cannot and should not be the ones deciding if a particular case qualifies or not.

For a more definitive answer, you may have to wait for various court cases against President Trump and his administration to make their way through the system. In several of them the President's/White House's lawyers have argued for absolute immunity on all criminal matters, state or federal. The judges have, to date, seemed disinclined to agree; many seem straight-up shocked that this is being seriously proposed to them. But those cases are still in progress, so we can at best make random guesses at what the actual opinions will be, and it is even harder to know what will happen on the almost-certain appeals up to the Supreme Court.

| improve this answer | |
  • Did he get indicted while he was vice-president or before? – Michael Hardy Oct 25 '19 at 16:59
  • 1
    @MichaelHardy While. The duel occurred while he was VP. Burr and Hamilton had a lot of sour grapes with each other, and it all came to head when it became clear Burr wasn't going to be part of the next election ticket and Hamilton went to pains to make sure he was defeated in his attempt to win a governorship. – zibadawa timmy Oct 25 '19 at 23:26
2

The President not being the subject of an indictment is a Department of Justice rule. It is meant to prevent people from charging the president with crimes in order to stop him from doing his duty. https://www.reuters.com/article/us-usa-trump-russia-indictment-explainer/can-a-sitting-us-president-face-criminal-charges-idUSKCN1QF1D3

It does not really apply to the VP.

As for Agnew, he resigned and took a plea deal. https://en.wikipedia.org/wiki/Spiro_Agnew#Criminal_investigation_and_resignation

| improve this answer | |
  • 2
    The DOJ policy (I hesitate to even call it a rule) also only applies to federal indictments and is not supported by statute or the constitution or any common law caselaw. It is intended to prevent people from prosecuting their ultimate boss to whom they report. The same justification does not apply to a Vice President. – ohwilleke Oct 24 '19 at 19:03
  • 2
    The DOJ opinion also does not make any claims about it stopping people "from charging [him] with crimes in order to stop him from doing his duty." None of the opinions posits this as a problem. They do weigh the balance of the need for justice with the needs of the singular carrier of an entire governmental branch's power to carry out duties without excessive burdens. They conclude that the DOJ is not the correct part of government to make the determination of what indictments etc. do or do not constitute an unconstitutional burden, and advises that they simply never do so. – zibadawa timmy Oct 25 '19 at 6:41
  • It is commonly stated in the media that it's about stopping such politicization of indictments, but this is not because of anything in the DOJ opinions or legal realities. It's a pure "our opponents are so evil they would totally do this ridiculous, awful thing, so make sure to vote for me/us" hyperbole. In reality the likelihood that courts and prosecutors would tolerate such actions in any way which would seriously impinge upon the President's time (especially since the courts would be very accommodating even on legitimate matters) strikes me as zero. It's legit matters that are of concern. – zibadawa timmy Oct 25 '19 at 6:52

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.