QUESTION: Marty; You are very good at constitutional law. What is your take if Hillary is indicted? Will she be impeached?

ANSWER: A President cannot be impeached for crimes prior to taking office. Only those committed during their office. If Congress called her back as President for an investigation and she lied under oath, that would be impeachable. Nevertheless, this question would invoke Section 3 of the 20th Amendment. There is no Supreme Court interpretation of that Amendment and it would turn on the meaning of does she “qualify” to take office. This is what Section 3 says:

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Let’s begin that a criminal conviction DOES NOT disqualify you from becoming President. The only real qualification specified by the Constitution is “natural born” citizen. This is where the fight over Obama also began. For Barack Obama the question was whether he was born in Hawaii, which is U.S. soil. For John McCain the question was whether the Panama Canal Zone, where he was born, was U.S. soil. To make this clear, even if you are born of parents both of whom were U.S. citizens, this by itself does not make you a “natural-born” citizen under the Constitution. However, a statute was later adopted naturalizing such persons at birth. The authority for the term “natural born” is William Blackstone (1723-1780), in his Commentaries on the Laws of England, Volume II, in particular Chapter 10:

As to the qualifications of members to sit at this board: any natural born subject of England is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. But, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king William in many instances, it is enacted by the act of settlement,l that no person born out of the dominions of the crown of England, unless born of English parents, even though naturalized by parliament, shall be capable of being of the privy council.

… the king has also the prerogative of conferring privileges 53 upon private persons. Such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom:g or such as converting aliens,54 or persons born out of the king’s dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. Such also is the prerogative of erecting corporations;55 whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. Of aliens, denizens, natural-born, and naturalized subjects, I shall speak more largely in a subsequent chapter;

The Founding Fathers relied upon Blackstone. This is really the seminal authority to which we must refer. Now lets deal with the two possibilities assuming there is no indictment prior to the election. First, if Hillary wins the election and is indicted before the inauguration, this gets interesting and presents a constitutional crisis and would differ from being indicted after the inauguration.

An indictment is not a conviction. An indictment also does not disqualify a person from being eligible for the presidency any more than a conviction would. Therefore, should Hillary be indicted before she is inaugurated, it would have no disqualification impact. The only disqualifying result would be if she were to be denied bail or is sentenced to prison so in that situation she would then not be “qualified” to carry out her presidency from prison. Consequently, if Hillary was indicted after winning the election but before officially taking office, she would stall the proceedings to take office before her case concludes. Why? Once she is in office as President, it gets even more crazy. If Hillary is indicted and convicted prior to her inauguration, and goes to jail, then she would be deemed incapacitated, and therefore under Section 3 of the 20th Amendment, the Vice President-Elect Tim Kaine, would become President. So she would postpone any such trial to prevent being imprisoned before taking office. That’s not very probable that she would be indicted and convicted before inauguration. Such a process would never be that fast.

Our second possibility would be if Hillary wins the election and steps down before the inauguration, which given her tenacity seems equally unlikely. Nevertheless, should Hillary become President-Elect and decides to step down before her inauguration, for being indicted and there is a major public outcry, Kaine would become President. However in such a  crazy situation where a candidate steps down after the general election, but before the Electoral College actually votes, then under statutory law the electors would be able to vote for whomever they want in most cases. In theory, they could vote anyone into office including Joe Biden. That would really be a Constitutional Crisis.

What happens if the investigation continues after the election and Hillary wins and is inaugurated before a decision is made to indict her? This is where the “law” is unclear. Most likely, Hillary would escape justice completely, due to the principle that only Presidents are immune from criminal prosecution while in office. Here there was a Department of Justice memorandum drafted by the Office of Legal Counsel back in 1973 during the Nixon days. That memo said that prosecution of a sitting President would undermine the power of the executive branch and its ability to function. Nixon resigned and Ford pardoned him to prevent a criminal prosecution after leaving office. Back in 2000, a new memo was drafted reviewing that determination and agreed that a President is immune from indictment and prosecution for the duration of their time in office when Bill Clinton was impeached. Keep in mind, however, that no court has ruled on this issue yet so here we have uncharted territory.

Nevertheless, this issue was in fact argued before the Supreme Court by then White House attorney James D. St. Clair. The argument turned on what the Constitution says “The executive power shall be vested in a President of the United States of America” and that therefore includes federal or state prosecutions. St. Clair then argued that since the President controls federal prosecutions, then the President isn’t subject to them himself. I would not buy that argument and this is where an appointment of a Special Prosecutor comes into play. If a “Special Prosecutor” has the authority to indict, then this would seem to negate that superficial position. This would actually become the Roman position of a Tribune.

St. Clair did concede that the Constitution says that after an official is impeached and convicted by the Senate, then and only then would a president be “liable and subject to indictment, trial, judgment and punishment, according to law.” His twist was that a President is only able to be prosecuted after being removed from office. However, that line applies to all federal officials subject to impeachment. If other officials are subject to prosecution, then it cannot mean that a president is exempt without such a specific clause under strict construction (interpretation).

As always, courts avoid ruling whenever they can. At the time, Chief Justice Warren Burger decided that it was not “necessary” to rule on this issue. Consequently, we are in fertile territory with uncharted waters to answer the question if Hillary could be indicted as a sitting president after impeachment for something else she does while in office. Let’s say Hillary is called before Congress and asked about her escapades. Since she could be indicted AFTER office, would she then be entitled to assert the Fifth Amendment Privilege against compelled self-incrimination or keep saying “I do not recall.” Talk about confidence collapsing in government. WOW!

Therefore, Hillary gets lucky if she can step into office for it has been determined back in 1873 that Presidents cannot be impeached for offenses they committed before they took office. Therefore, Hillary cannot be impeached for what she did before the election, only AFTER she leaves office.

Article II of the Constitution says the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” If you want to see corruption at the extreme, Hillary could legally pardon herself. There is a really Constitutional Crisis.

Impeachment does not look plausible for her shenanigans prior to becoming President. However, there is a completely different angle to this crisis. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Hillary’s greed could be the Treason. If she took money from countries that fund ISIS and they are deemed to be our enemies, then we open a whole new black hole. The question would be if a sitting President committed Treason, are they exempt? I would say no possible way. So forget the email scandal. Look to the Clinton Foundation as the real huge problem for Hillary going forward. I would look to prosecute her for Treason and that would force the Supreme Court to decide the question and I seriously doubt they could allow a President who betrays the nation to remain in office.