Former Obama-administration Attorney General Eric Holder believes that he has found a loophole in the Constitution that allows for a sitting president – viz, Donald Trump – to be indicted, Law & Crime is reporting. The prevailing opinion among legal scholars is that a sitting POTUS cannot be indicted, for reasons that will be explained in a moment.

On Monday night, Holder tweeted a legal opinion, from Harvard Law Professor Laurence Tribe, that does suggest that there is a way around the apparent barriers to impeaching a sitting POTUS.

What The Constitution Says

As FBI Special Counsel Robert Mueller’s investigation appears to be closing in on Donald Trump, the question has been raised about whether or not an acting President can be indicted for a crime. The general consensus in the legal community, backed up by a Nixon-era Justice Department memo, is that he can’t. That’s because the Constitution doesn’t provide clear direction on this.

High Crimes And Misdemeanors

In fact, the Constitution is almost frustratingly vague about the topic. The document allows for impeachment of the POTUS for “high crimes and misdemeanors,” suggesting that he could only be charged with a crime once removed from office. Similarly, the founding document also grants the president the power to pardon, which means that a president possibly facing criminal charges could resign and then be pardoned by his successor, as was the case with Nixon and Ford.

And in a 2000 memo, the Justice Department, in confirming a 1973 memo with similar language, said that a sitting POTUS can’t be indicted.

“[T]he indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

Enter The 25th Amendment

The 25th Amendment to the Constitution, ratified in 1967, lays out the succession of power in the event that the president “is unable to discharge the powers and duties of his office.” On its surface, says Holder, that language is intended to address the issue of a president being, for example, too ill, physically or mentally, to hold the office – and in fact, Donald Trump’s mental stability and invoking the 25th to remove him from office has come up in conversation.

But Holder says that the Amendment also applies in the case of a presidential indictment.

“If a president is too occupied by a criminal case that they cannot run the executive branch… this could fall under the 25th Amendment.”

Of course, at this point Holder’s theory is just that: a theory. It hasn’t been tested in court, and indeed, may never be tested, as Donald Trump may not be indicted at all; or he may resign (and be subsequently pardoned by Mike Pence); or he may be impeached and removed from office before he’s indicted.