So, what happens if a Presidential Candidate wins the election and is arrested/indicted but not yet convicted before Inauguration Day? Here is a break down.
If the President-elect is indicted but not yet convicted by January 20th, 2017, he or she is still capable of being Inaugurated and entering the White House. However, many of his/her privileges would (could) be restricted, such as his/her security clearance (more on that in a moment).
Knowing that an arrest might hinder his/her ability to do the job, he/she has two effective choices:
- Move Forward with the swearing-in ceremony, allow the judicial process to continue, and if found guilty, almost certainly be impeached while simultaneously pardoning him/herself. Of course, impeachment is meaningless. While the House of Representatives merely has to meet a majority threshold (50%+1), the Senate has to meet a two-thirds threshold to convict the impeached party and apply sanctions. In the current political environment, it is unlikely that approximately fifteen members of either party in the Senate would switch sides to support impeachment. Even then, there is no guarantee that an Impeachment conviction would result in a removal from office.
- Move Forward with the swearing-in ceremony and resign shortly thereafter, giving the White House to his/her Vice President. That would save a lot of headaches, but there are egos at play (on both sides of the Presidential race) that make this an unlikely voluntary affair (which I will get to).
Now, here is where it gets tricky…
One thing that would probably not happen is a step-down after election but before the Inauguration because that would place the decision of the Presidency in the hands of the House of Representatives.
If a President-elect were to step down before the Inauguration, it does not go to the Vice President-Elect. Why? Because the President-Elect cannot turn over the White House to his/her VP before they actually become “President” (i.e., MUST be Inaugurated). The power to resign is not yet vested in the President-elect. You cannot resign and assign from that which you do not yet have. Thus, if he/she stepped-down before the Inauguration, the result is treated as though neither party won the Electoral College and the Presidency is then decided by the House of Representatives.
(NOTE: Richard Nixon was pardoned by Gerald Ford broadly, before conviction, and that pardon stood. But that pardon was never tested on the grounds that a crime had not yet resulted in an indictment of Nixon. Since Nixon resigned, agencies dropped further criminal inquiry. It is unlikely that Clinton would resign.)
Now for another curve ball…
If the President-Elect is arrested for a federal statute outside of the scope of judicial process (e.g., mishandling classified documents, 18 U.S. Code § 798) that could eliminate a trial process and place it into the debarment proceedings (a process most Federal Contractors know well).
If an executive statute is broken (CFR), the President is obligated through the presiding cabinet official (Secretary of State, Defense… Attorney General, etc) to deny the President-Elect executive privileges typically consistent with the Office of the Presidency (this is called debarment; not to be confused with disbarment, a procedure reserved for removing attorney privileges).
There is no right to judicial process (i.e., trial by jury) with a debarment, but there is an exoneration procedure. If it is determined that he/she broke an executive statute, the impact is immediate. It is the only process in the United States within which someone accused is presumed guilty and must prove innocence during a review run by technocrats. If the President fails to act, the Senate could demand the Sergeant of Arms remove the President-Elect’s privileges by a straight up-and-down vote (50%+1). At that point, the Sergeant of Arms literally bars the President-Elect from entering the White House until he/she can be removed by Congress through procedure or he/she resigns.
The President would not have the right to deny debarment without placing other debarment proceedings into question. However, anything can happen – especially with President Obama.
Placing this all into current context:
If Hillary Clinton were to win the election and find herself indicted shortly thereafter for a criminal charge, obstruction of justice, and a statutory violation, mishandling classified documents, here is what would likely happen.
Hillary Clinton would still proceed to the Inauguration, but…
President Obama would be obligated through his presiding Cabinet Official’s bureaucratic process to debar (or begin debarment proceedings) within the context of the affected agency. Most likely that would begin, but due to timing not completed, under Secretary of State John Kerry (State Department violations). The debarment is automatic, meaning that she would be debarred immediately upon finding that she broke an Executive Statute. She can then request a hearing. Until that hearing takes place, she cannot engage in ANY function of the Federal Executive Government. In essence, she becomes a President in Name Only.
Due to the immediacy of debarment, she will not have the opportunity to pardon herself, because she loses the right to work on behalf of the Federal Executive. She cannot assign political appointees, either. That means, most likely, a hearing would be managed by the senior technocrat in the agency (i.e., the highest ranking official/diplomat that is not a political appointee). That individual would determine simply whether or not she broke the rules and for how long she would be punished based on pre-set minimum sentencing guidelines. Usually, debarment comes with a one-to-three year ban from Federal Government activity.
Meanwhile, the criminal charges could proceed without impacting her. Unlike debarment, the court system presumes innocence until proven guilty. She would have her day in court.
All of this points to the most likely scenario.
She would proceed to the Inauguration, officially become the first woman President, and probably resign the same day, placing her fate in Tim Kaine’s hands, who would almost assuredly pardon her of both the criminal and statutory violations.
In other words, if Hillary Clinton wins the election, but is indicted for a statutory violation (most likely), you will probably get a President Tim Kaine for four years.
As a Virginian, that would make me puke.
That would also make for a very surreal January 20th.
Of course, all of this could be avoided if Trump Wins on November 8th.