With less than two weeks before November 8, James Comey of the FBI just announced he is reopening their investigation into Hillary Clinton‘s private email system. So with Hillary now the target of a criminal investigation, what happens if she is indicted or relinquishes her candidacy before the election, or even after. According to LawNewz.com here are some different scenarios:
1. If Clinton is indicted before the election
It’s highly unlikely an indictment would come before November 8. If it did, the indictment itself wouldn’t mean that Clinton could no longer run, as an indictment is only an accusation, not a conviction.
2. If Clinton steps down before the election
Should Clinton relinquish her candidacy before the election, the Democratic National Committee has a special meeting where they would choose a new candidate. Since we are exactly 11 days away from the election, there is one major problem: The ballot deadlines have passed in nearly every state. So the Democratic leadership would likely have to wage a public campaign to tell voters that if you vote for Clinton/Kaine, you are really voting for Biden (or whoever it maybe)/Kaine. Then the electors would have to change their vote for the new ticket when they meet on December 19th, 2016.
3. If Clinton wins the election and is indicted before the inauguration
Should Clinton be indicted after winning the election but before officially taking office, she could try to play beat-the-clock and hope to take office before her case concludes. Once a person is in office as President, it gets even more complicated, as we’ll see later. Should Clinton be indicted and convicted prior to her inauguration, and end up in jail, she may be deemed incapacitated, in which case Section 3 of the 20th Amendment kicks in and the Vice President-Elect, in this case Tim Kaine, would become President.
4. If Clinton wins the election and steps down before the inauguration
If Clinton becomes President-Elect and decides to step down before her inauguration, either due to being indicted or out of fear that an indictment may be imminent, it would be similar to the situation just described, and Kaine would become President. However in a situation where a candidate steps down after the general election, but before the Electoral College chooses the winner, federal law says the electors would be able to vote for whomever they want, although states may pass their own laws controlling this situation.
5. If the investigation continues after the election and Clinton wins and is inaugurated before a decision is made. Could Clinton be indicted when she becomes President?
The law is unsettled when it comes to this situation, but most opinions tend to believe Clinton would luck out, due to the philosophy that Presidents — and only Presidents — are immune from prosecution while in office.
The Department of Justice addressed this in a memorandum by the Office of Legal Counsel (OLC) in 1973. That memo said that prosecution of a sitting President would undermine the power of the executive branch and its ability to function. In 2000, a new memo reviewed that determination and agreed that a President is immune from indictment and prosecution for the duration of their time in office. Of course, that memo acknowledged that no court has ruled on this issue yet. It almost happened during the 1974 Watergate scandal.
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