This article, A Constitutional Puzzle: Can the President Be Indicted?, by the chief legal reporter of the Times, Adam Liptak, makes the case that most scholars feel it can’t be done. He does present arguments for it being allowed, which I will excerpt. He starts with this intro, “The Constitution does not answer every question. It includes detailed instructions, for instance, about how Congress may remove a president who has committed serious offenses. But it does not say whether the president may be criminally prosecuted in the meantime. In the article he writes:
Reports that President Trump asked James B. Comey, then the F.B.I. director, to shut down an investigation into his former national security adviser, Michael T. Flynn, prompted accusations that the president may have obstructed justice. Robert S. Mueller III, the former F.B.I. director who has been appointed special counsel to look into ties between the Trump campaign and Russia, will presumably investigate the matter.
But would the Constitution allow Mr. Mueller to indict Mr. Trump if he finds evidence of criminal conduct?
He goes on to describe an eminent scholar who dissents with the consensus, Eric M. Freedman, a law professor at Hofstra University who wrote this 123 page law review article making the case allowing criminal prosecution of presidents while in office.
Professor Freedman demonstrated that the issue had divided the founding generation and argued that granting sitting presidents immunity from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.” He pointed out that other federal officials who are subject to impeachment, including judges, have been indicted while in office. Courts have rejected the argument that impeachment is the sole remedy for such officials.
Another dissenter from the consensus that Lipman describes is the special prosecutor engaged in the break-in and obstruction of justice of the Democratic National Committee offices in the Watergate Complex, Leon Jaworski, who said, “It is an open and substantial question whether an incumbent president is subject to indictment,”
Interesting issue, but goes beyond what legal scholars might opine, but rather who has the power. It would be a continuation of the constitutional gauntlet thrown down in the words of President Andrew Jackson when the Supreme court ruled against his removal of indigenous Americans, “John Marshal made his decision, now let him enforce it."