Yale Law Prof Amar: Sitting Presidents Can’t Be Prosecuted

On Tuesday’s “Hugh Hewitt Show,” Sterling Professor of Law and Political Science at Yale University, Akhil Amar argued that sitting presidents cannot be prosecuted.

Amar said, “Bob Mueller, constitutionally, is what’s called an inferior officer under Article II, Section 2, Paragraph 2. … The Constitution says that certain officers can be basically picked by low-level officials, but aren’t picked by the president, aren’t confirmed by the Senate, but those officers like Bob Mueller, who wasn’t picked by a president, wasn’t confirmed by a Senate, have to be inferior officers. That’s the word the Constitution uses. Now it’s really hard to be inferior if you’re indicting a president of the United States and possibly undoing a national election.”

Amar commented on the possibility of a state prosecution by stating, “I voted against President Trump, but elections matter. We the people of the United States made a decision, and I wouldn’t want any individual state to be able to undo that election. What’s popular in Massachusetts is unpopular in Alabama, and the vice versa. The president has to represent all of us, and so I wouldn’t want the people of any given state to be able to undo a presidential election. And a state prosecution would involve a local jury, a local grand jury. It would be the part overturning the whole. It would be as if, let’s say, in the 1860s, North Carolina could have indicted Abraham Lincoln on some fabricated charge and tried to demand that he go down to the Carolinas for trial or something, when he had other things to do, namely win the Civil War.”

He also said, “The historical view of the Justice Department from Robert Bork to Clinton’s Justice Department, for that matter, has been that even if an indictment could possibly, you know, issue, a president could simply ignore it while sitting. Now of course, he can be forced out. He can be impeached. He can resign. His term will end, and once he’s out of office, you can have at him, as we can have at anyone else. He’s not above the law. But while he is sitting, the real grand jury, in effect, that he has to answer to is called the House of Representatives.”

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