If an individual in the US is indicted on state racketeering charges (e.g. Georgia) and they are later elected as US president, what legal arguments could be made in court by the defense to stop or at least postpone the case while the client is president?

Assume the actual trial has not started yet.

For background, Maggie Haberman's comments: https://youtu.be/xEGOpQtZhCE?t=130


1 Answer 1


There is an opinion (initially from 1973 and reaffirmed in 2000) from the Office of Legal Counsel that:

[federal] indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

This is why special counsel Robert S. Mueller declined to issue a judgment about whether a sitting president had committed crimes. See Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Vol. II, pp. 1–2.

Footnote 2 from the 2000 OLC opinion notes that a state prosecution could present "federalism and comity" concerns, citing Clinton v. Jones, 520 U.S. 681 (1997).

The argument from federalism or comity in relation to state charges has not been fully developed, but the gist is that it would present great practical difficulties for the working of the U.S. federal system if any state could simply indict the sitting president.

Also, what force to give that OLC opinion is not a purely legal consideration (see Ronald Dworkin, Law's Empire, Chapter 3: "Jurisprudence Revisited—Grounds and Force of Law"; see also Fred Barbash, "Justice Department opinions take on the force of law — but are not, in fact, the law", Washington Post (2019)).


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