Listen: A legal expert analyzes the impeachment process
"First. Let's distinguish a criminal prosecution from impeachment the Constitution specifies. How certain federal officials including including the president and vice president can be impeached or removed from office? The House of Representatives decides whether to issue articles of impeachment these are formal accusations accusations if it thinks that the person has committed treason bribery or other high crimes and misdemeanors once that happens the Senate presides over the trial of the person being impeached. No all the sounds like a criminal prosecution but it really isn't impeachment is different because of the outcome of a Senate connection. The person is removed from office. That's it no other consequences now. An actual criminal prosecution of course carries with it a lot of possible very serious. This consequences prison fines probation things like that. No one argues about whether the constitution itself considers the president subject to impeachment who's right there in black and white article two of the Constitution specifically names the president as one of those people who can be subjected to impeachment conviction fiction and removal. We've never seen the whole process happened before but presidents. Andrew Johnson and Bill Clinton came pretty close both were impeached by the House House and tried by the Senate Nixon of course resigned in nineteen seventy four after the House Judiciary Committee approved three articles of impeachment but before the house us as a whole voted on them now what about the criminal prosecution of a president while a vice president can clearly be prosecuted and in fact they have been. It's not quite clear that the president himself could be now if you look at the text of the Constitution itself. There's nothing there that says a president. President is immune from criminal prosecution. The closest thing that exists in the constitution's text is actually about impeachment in article three section three three it says that the person removed by impeachment shall nevertheless be liable and subject to indictment trial judgment and punishment according according to law so what most people think this means is that a person who's been impeached can also be prosecuted separately but it doesn't answer the specific question of whether they're a sitting president you know someone who still in office can be criminally prosecuted whether impeached or not the supreme court has never decided a case that resolves this question what what we do have instead our legal memos written during both the Clinton and Nixon presidencies that give us some opinions on the subject. They're not binding and the way that a supreme court the case would be but because they were written to provide official guidance. They're still pretty useful. In one thousand nine hundred eighty eight independent counsel Kenneth Starr asked Ronald Rotunda a well known conservative law professor an expert on constitutional law to write a memo on whether a sitting President Clinton of course could be prosecuted. Rotunda responded with a fifty six page legal memo. It's basic point was yes. Yes a sitting president can be prosecuted. Rotunda thought that the president could delay imprisonment but not the prosecution itself you know but there's an important qualifier to rotunda memo. He said he was analyzing president. Clinton's Clinton's very specific situation. Keep in mind. Clinton was ultimately impeached for obstruction of justice and perjury relating to the Paula Jones case this. This was a case that had nothing to do with the presidency itself. Rotunda was saying Yup Clinton can be criminally prosecuted for those things to in fact Rotunda made Ada clear and said I express no opinion as to whether the federal government could indict a president for allegations that involve his official duties as president and then there's Nixon who ultimately resigned because of the Watergate scandal this of course involve the president trying to cover up the scandal in nineteen seventy three the office of Legal Counsel in the Justice Department prepared illegal memo that concluded that the president was immune from criminal prosecution while in office. I can see why Nixon in one that opinion out there in March of nineteen seventy four grand jury handed down indictments. These are formal charges against seven. White House aides regarding Watergate now President President Nixon was named as an Unindicted Co Conspirator. That term refers to a person who's alleged in an indictment to have engaged in a conspiracy. That's an agreement meant to do something illegal but that person's not personally charged in the Indictment Special Watergate prosecutor Leon worse kfi advise the jury that in his view a president doesn't could not be prosecuted in these circumstances in another memo dated August Ninth Nineteen Seventy four the same day that Nixon resigned Gysky Gorski"