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During the Mueller investigation, it came out that the Justice Department has a policy against indicting a sitting President, so nothing he found would result in bringing charges against Trump. However, Trump is now out of office, and this week they indicted him for offenses related to the classified documents that were found at Mar-A-Lago after he left office.

I can easily imagine lots of delays in taking this to trial. Suppose he wins the election next year, and the trial doesn't get started until 2025. As I understand it, the reasons for not indicting POTUS are due to the way a trial would interfere with their ability to do their job (or vice versa: they can't participate in their defense adequately if they're busy running the country). Wouldn't these reasons also apply if the indictment were prior to their taking office?

Would the trial have to be delayed until after they leave office again?

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That remains to be determined. This article (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of "original intent". The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in Trump v. Vance points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it.

As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would "incapacitate" the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes.

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  • My question clearly acknowledges that this is Justice Department policy, not constitutional. Do we know whether Justice has a similar policy regarding prosecution?
    – Barmar
    Commented Jun 9, 2023 at 20:52
  • Per A Sitting President’s Amenability to Indictment and Crim. Prosecution, 24 Op. O.L.C. 222, 222 (Oct. 16, 2000) and Memorandum on Amenability of the President, Vice President, and Other Civil Officers to Federal Criminal Prosecution While in Office from Robert G. Dixon, Jr., Assistant Att’y Gen., Off. of Legal Couns. 18–32 (Sept. 24, 1973), there is no policy on that issue. Also note that Agnew was charged and plead nolo contendere while in office, and DoJ acknowledges this.
    – user6726
    Commented Jun 9, 2023 at 21:30
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What would be the point? They can pardon themselves.

Simply put, the US President has the power to pardon any federal crime. If they were indicted, they can simply wave their hand and declare themselves pardoned.

The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.

If a President commits a crime, you need to get Congress to impeach them first, otherwise they can simply pardon themselves.

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    As I mentioned in a comment above, I don't think there's a concensus over whether this is really possible. It was much discussed in the news during the Trump presidency, and most expected that if he tried it it would end up in the Supreme Court to decide.
    – Barmar
    Commented Jun 9, 2023 at 22:12
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    The view that a President can pardon himself is a minority view at best. The majority view is that he can't pardon himself. Also, there a state law crimes and civil wrongs that can't be pardoned. law.stackexchange.com/questions/22562/…
    – ohwilleke
    Commented Jun 9, 2023 at 23:41
  • @ohwilleke The literal text of the Constitution says otherwise. That's why the Founders gave the Congress the power to impeach the President.
    – nick012000
    Commented Jun 10, 2023 at 0:01
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    @nick012000 There is a great deal more to constitutional law than the literal text of the constitution. Lots of the concepts in it, like "freedom of the process" or "necessary and proper" and seeped in context and history. The 11th Amendment, for example, doesn't mean anything remotely like what it's literal text says.
    – ohwilleke
    Commented Jun 10, 2023 at 0:12
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    @nick012000 he can't prevent them from testifying in congress then
    – Trish
    Commented Jun 11, 2023 at 7:00

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