Can a sitting U.S. president face criminal charges?

WASHINGTON, Feb 26 (Reuters) - The U.S. Constitution explains how a president can be removed from office for "high crimes and misdemeanors" by Congress using the impeachment process. But the Constitution is silent on whether a president can face criminal prosecution in court, and the U.S. Supreme Court has not directly addressed the question.

The question looms large with Special Counsel Robert Mueller preparing a report on his investigation into Russia's role in the 2016 U.S. election, whether President Donald Trump's campaign conspired with Moscow and whether Trump unlawfully sought to obstruct the probe.

The U.S. Justice Department has a decades-old policy that a sitting president cannot be indicted, indicating that criminal charges against Trump would be unlikely, according to legal experts.

Here is an explanation of the rationale behind the Justice Department policy and whether it applies to Mueller.

WHAT IS THE JUSTICE DEPARTMENT POLICY?

In 1973, in the midst of the Watergate scandal engulfing President Richard Nixon, the Justice Department's Office of Legal Counsel adopted in an internal memo the position that a sitting president cannot be indicted. Nixon resigned in 1974, with the House of Representatives moving toward impeaching him.

"The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination," the memo stated.

The department reaffirmed the policy in a 2000 memo, saying court decisions in the intervening years had not changed its conclusion that a sitting president is "constitutionally immune" from indictment and criminal prosecution. It concluded that criminal charges against a president would "violate the constitutional separation of powers" delineating the authority of the executive, legislative and judicial branches of the U.S. government.

"The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions," the memo stated.

The 1973 and 2000 memos are binding on Justice Department employees, including Mueller, according to many legal experts. Mueller was appointed in May 2017 by the department's No. 2 official Rod Rosenstein.

But some lawyers have argued that the nation's founders could have included a provision in the Constitution shielding the president from prosecution, but did not do so, suggesting an indictment would be permissible. According to this view, immunity for the president violates the fundamental principle that nobody is above the law.

Nixon himself in 1977 offered an opposite view when he told interviewer David Frost, "Well, when the president does it that means that it is not illegal."

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WASHINGTON, DC - OCTOBER 28: Former FBI director Robert Mueller attends the ceremonial swearing-in of FBI Director James Comey at the FBI Headquarters October 28, 2013 in Washington, DC. Comey was officially sworn in as director of FBI on September 4 to succeed Mueller who had served as director for 12 years. (Photo by Alex Wong/Getty Images)
US President Barack Obama applauds outgoing Federal Bureau of Investigations (FBI) director Robert Mueller (L) in the Rose Garden at the White House in Washington on June 21, 2013 as he nominates Jim Comey to be the next FBI director. Comey, a deputy attorney general under George W. Bush, would replace Mueller, who is stepping down from the agency he has led since the week before the September 11, 2001 attacks. AFP PHOTO/Nicholas KAMM (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
Outgoing FBI Director Robert Mueller applauds key staff members during a farewell ceremony held for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW HEADSHOT)
391489 03: U.S. President George W. Bush speaks during a conference as he stands with Justice Department veteran Robert Mueller, left, who he has nominated to head the FBI, and Attorney General John Ashcroft July 5, 2001 the Rose Garden at the White House in Washington, DC. (Photo by Mark Wilson/Getty Images)
Outgoing FBI Director Robert Mueller stands for the national anthem during a farewell ceremony for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
Outgoing FBI Director Robert Mueller (L) reacts to a standing ovation from the audience, Deputy U.S. Attorney General James Cole (C) and U.S. Attorney General Eric Holder (R) during Mueller's farewell ceremony at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
Outgoing FBI Director Robert Mueller gestures during his remarks at a farewell ceremony held for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
FILE PHOTO -- U.S. Attorney General John Ashcroft (R) and FBI Director Robert Mueller speak about possible terrorist threats against the United States, in Washington, May 26, 2004. REUTERS/Kevin Lamarque/File Photo
Outgoing FBI Director Robert Mueller reacts to applause from the audience during his farewell ceremony at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
UNITED STATES - JUNE 19: Chairman Pat Leahy, D-Vt., right, and FBI Director Robert Mueller make their way to a Senate Judiciary Committee hearing in Dirksen Building on oversight of the FBI. (Photo By Tom Williams/CQ Roll Call)
Outgoing FBI Director Robert Mueller (C) delivers remarks at a farewell ceremony for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. Also onstage with Mueller are Deputy U.S. Attorney General James Cole (FROM L), U.S. Attorney General Eric Holder, former CIA Director George Tenet and TSA Administrator John Pistole. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
WASHINGTON, DC - MAY 15: (L-R) Rep. Steny Hoyer (D-MD), U.S. Attorney General Eric Holder, Homeland Security Secretary Janet Napolitano, FBI Director Robert Mueller and Immigration and Customs Enforcement Director John Morton attend the National Peace Officers' Memorial Service at the U.S. Capitol May 15, 2013 in Washington, DC. Holder and other members of the Obama administration are being criticized over reports of the Internal Revenue Services' scrutiny of conservative organization's tax exemption requests and the subpoena of two months worth of Associated Press journalists' phone records. (Photo by Chip Somodevilla/Getty Images)
FBI Director Robert Mueller testifies before the House Judiciary Committee hearing on Federal Bureau of Investigation oversight on Capitol Hill in Washington June 13, 2013. Mueller said on Thursday that the U.S. government is doing everything it can to hold confessed leaker Edward Snowden accountable for splashing surveillance secrets across the pages of newspapers worldwide. REUTERS/Yuri Gripas (UNITED STATES - Tags: POLITICS CRIME LAW)
Ukrainian President Viktor Yanukovych (L) welcomes FBI Director Robert Mueller during their meeting in Kiev June 5, 2013. REUTERS/Efrem Lukatsky/Pool (UKRAINE - Tags: POLITICS)
FBI Director Robert Mueller (L) arrives for the Obama presidential inauguration on the West Front of the U.S. Capitol January 21, 2013 in Washington. President Barack Obama was re-elected for a second term as President of the United States. Woman at right is unidentified. REUTERS/Win McNamee-POOL (UNITED STATES)
WASHINGTON, : FBI Director Robert Mueller answers questions before Congress 17 October 2002 on Capitol Hill in Washington. Mueller was testifying before the House and Senate Select Intelligence committees' final open hearing investigating events leading up to the September 11, 2001. AFP Photos/Stephen JAFFE (Photo credit should read STEPHEN JAFFE/AFP/Getty Images)
(L-R) CIA Director Leon Panetta, Director of National Intelligence James Clapper and FBI Director Robert Mueller testify at a Senate Intelligence Committee hearing on Capitol Hill in Washington, February 16, 2011. REUTERS/Jason Reed (UNITED STATES - Tags: POLITICS)
399994 02: Federal Bureau of Investigation (FBI) Director Robert Mueller visits the American military compound at Kandahar Airport January 23, 2002 in Kandahar, Afghanistan. Mueller had lunch with FBI officials and Haji Gulali, commander of the Kandahar region. (Photo by Mario Tama/Getty Images)
Federal Bureau of Investigation (FBI) Director Robert Mueller (L) stand during the National Anthem alongside Attorney General Eric Holder (R) and Deputy Attorney General James Cole (C) during a farewell ceremony in Mueller's honor at the Department of Justice on August 1, 2013. Mueller is retiring from the FBI after 12-years as Director. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
399994 01: Federal Bureau of Investigation (FBI) Director Robert Mueller greets American forces on the American military compound at Kandahar Airport January 23, 2002 in Kandahar, Afghanistan. Mueller had lunch with FBI officials and Haji Gulali, commander of the Kandahar region. (Photo by Mario Tama/Getty Images)
UNITED STATES - JUNE 19: FBI Director Robert Mueller, center, talks with Chairman Pat Leahy, D-Vt., right, and Sen. Orrin Hatch, R-Utah, talk before a Senate Judiciary Committee hearing in Dirksen Building on oversight of the FBI. (Photo By Tom Williams/CQ Roll Call)
UNITED STATES - JUNE 06: OVERSIGHT HEARING ON COUNTERTERRORISM--Sen. Richard J. Durbin, D-Ill., Senate Judiciary Chairman Patrick J. Leahy, D-Vt., FBI Director Robert S. Mueller III, and Sen. Charles E. Grassley, R-Iowa, before the hearing. (Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)
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COULD MUELLER INDICT TRUMP DESPITE THE EXISTING POLICY?

Possibly. The Justice Department regulations governing Mueller's appointment allow him to deviate from department policy in "extraordinary circumstances" with the approval of the U.S. attorney general, the nation's top law enforcement official. Trump appointee William Barr currently holds that post.

Some legal experts have suggested Mueller could invoke this exception if he has uncovered serious wrongdoing and lacked confidence in the ability of the divided Congress to hold Trump accountable. Some lawyers also have said Mueller is not bound by the 1973 and 2000 memos because he is not a typical employee of the department.

Ken Starr, who investigated President Bill Clinton in the 1990s in the somewhat different role of independent counsel, in 1998 conducted his own analysis of the question of whether a sitting president can be indicted, indicating he did not consider the 1973 Justice Department memo binding on him.

Starr did not indict Clinton in his investigation involving the president's relationship with a White House intern named Monica Lewinsky, but lawyers in his office concluded he had the authority to do so, according to a once-secret internal memo made public by the New York Times in 2017.

After the independent counsel statute under which Starr was named expired in 1999, the Justice Department devised procedures governing the appointment of special counsels to handle certain investigations. Mueller was named after Trump fired FBI Director James Comey, who had been overseeing the agency's Russia probe.

COULD TRUMP BE REMOVED FROM OFFICE AND THEN PROSECUTED?

Yes. There is no debate over whether a former president can be indicted for conduct that occurred while in office. In fact, President Gerald Ford, who succeeded Nixon after his resignation, was mindful of this when he granted "a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed."

The statute of limitations - restricting the time within which legal proceedings such as a prosecution may be brought - may work to Trump's benefit if he is re-elected in 2020 and serves a full two four-year terms as president until January 2025.

Many federal crimes have a five-year statute of limitations, meaning prosecutors have five years from the date the conduct at issue occurred to bring an indictment. That means criminal charges against a re-elected Trump could be time-barred.

Some lawyers have said that, as a matter of fairness, the normal rules on timeliness of charges should not apply to the president. The issue potentially could be resolved in the courts.

(Reporting by Jan Wolfe; Editing by Will Dunham)

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