An amendment to the “Protecting Our Democracy Act” that was first proposed by Claire O. Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy at the University of Pennsylvania, and Richard W. Painter, S. Walter Richey Professor of Corporate Law of the University of Minnesota, has passed the House of Representatives.
In “Tolling the Statute of Limitations to Prosecute a Former President: A Double-Edged Sword,” published at Lawfare, Finkelstein and Painter urged Congress to amend the Act, which is designed to prevent presidential abuses of power, to “dispel any impression that Congress intends to endorse presidential immunity from prosecution.”
“Given the legal and policy reasons to permit the criminal indictment of a sitting president,” they write, “we believe that Congress should revise Section 202 of the Protecting Our Democracy Act to make clear that it is not unconstitutional to indict a sitting president, as well as to affirm the vital role that even-handed application of the criminal law and holding government officials to the rule of law plays in protecting democracy.”
Finkelstein and Painter proposed the following text:
The Department of Justice may seek criminal indictments of executive branch officials within the scope of their authority and shall not postpone post-indictment proceedings based on the identity of the defendant as an elected or appointed official of the United States or territory, to include the president and vice president of the United States. Procedural accommodations in a criminal case specifically involving the president or vice president shall be limited to those necessary to perform his or her duties.
Recently, the House passed an amendment to the Act, proposed by Congressman Raskin, that was closely based on Finkelstein and Painter’s proposal. The main purpose of the amendment is described as to “ensure that if a sitting President or Vice President is indicted while in office, a trial or other legal proceeding may only be delayed if it interferes with the defendant’s official duties and ensures the burden to delay legal proceedings falls on the defendant.”
The measure is now with the Senate.
Finkelstein is also the Faculty Director of the Center for Ethics and the Rule of Law (CERL), a distinguished research fellow at Penn’s Annenberg Public Policy Center (APPC), and a senior fellow at the Foreign Policy Research Institute (FPRI).
In addition to his law professorship, Richard Painter served as chief ethics lawyer for George W. Bush and is a member of the Advisory Council of the Center for Ethics and the Rule of Law.