HOUSE OVERSIGHT 030207 the possible course I believe deserves most consideration when a sitting president has been found to have committed a crime: indict-and-postpone. While I would not call the few mentions of that possibility "mere dicta," I believe the scant discussion of the point should not preclude an independent judgment by subsequent officials. The notion that such a course would cause reputational harm___though it would not physically interfere with the president's attention to his duties___seems to be a point of policy, not constitutional law. For a helpful analysis of this question, see Bob Bauer's posting. In any event, OLC has never suggested that a president cannot be an unindicted co- conspirator. Conclusions The history of positions taken by the executive branch of the United States on the indictment of a sitting president is more varied and complex than is generally assumed. For that reason, whether or not a president can be indicted or named as an unindicted co-conspirator should not be considered a settled question. I am convinced that putting a president on trial would be inconsistent with the Article II responsibilities of the modern presidency. Others___Larry Tribe included___are less certain and also point to the 25th Amendment, arguing that if being on trial or incarcerated precluded a president from being able to perform his duties, the 25th Amendment provides a theoretical if impractical avenue for the vice president to take over in successive 21-day increments during that time. I see the point, but I believe that approach could too easily set aside the determination of the electorate. People vote for a president, not a vice president. It would be no small matter, for example, to have had Sarah PalM step in for John McCain. If a guilty president is not to be indicted, he or she should in any event be included in the charging instrument as an unindicted co-conspirator, an option that has been expressly defended by th