Eric Holder Insists ‘Sitting President Can Be Indicted’

Former Attorney General and potential 2020 presidential candidate Eric Holder insisted on Tuesday evening that “a sitting president can be indicted.”

Holder tweeted his remarks hours before Michael Cohen, President Donald Trump’s disgraced former personal lawyer, is set to testify before Congress on Wednesday and accuse Trump of being a “racist,” a “conman,” and a “cheat.”

A sitting President can be indicted. https://t.co/JECqQ1YqD1

— Eric Holder (@EricHolder) February 27, 2019

The Justice Department’s longstanding policy is that a sitting president cannot be indicted. But Holder, in a previous tweet in which he linked to Harvard Law Professor Laurence Tribe’s op-ed in which Tribe claimed that the Justice Department’s “policy in question is probably unconstitutional,” argued that a sitting president can be indicted because the “Constitution does not anticipate allowing a president who used fraud to obtain the office to remain in power. Executive branch paralysis during the criminal process is not a compelling argument- consider 25th Amendment.”

In 2000, the Justice Department reaffirmed its 1973 position—that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

“In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers,” the memo stated. “No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”

But top Democrats like House Speaker Nancy Pelosi (D-CA) have also claimed in recent months that whether a sitting president can be indicted is still an open question.

In January, Today co-host Savannah Guthrie asked Pelosi: “Do you believe the special counsel should honor and observe the Department of Justice guidance that states a sitting president cannot be indicted?”

Pelosi responded: “I do not think that that is conclusive. No, I do not.”