united-states prosecution us-president
Could a trial be held against a sitting President?
<p>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.</p>
<p>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?</p>
<p>Would the trial have to be delayed until after they leave office again?</p>

<p>That remains to be determined. <a href="https://deliverypdf.ssrn.com/delivery.php?ID=710087064097094101074123011070083122015017095012001064108080020002087015024121092093101099062003019016045099094112096102000024007087059020059075075079030008115068031021076024029086119076022075108118115072090066023099101003091081000001022070030126000&amp;EXT=pdf&amp;INDEX=TRUE" rel="noreferrer">This article</a> (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 &quot;original intent&quot;. 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 <a href="https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf" rel="noreferrer"><em>Trump v. Vance</em></a> 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.</p>
<p>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 &quot;incapacitate&quot; 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.</p>
