Truthdig
It's Time to Ask Again: Can a Sitting President Be Indicted?
http://www.truthdig.com/report/item/its_time_to_ask_again_can_a_sitting_pres
ident_be_indicted_20170802/
Posted on Aug 2, 2017
Donald Trump at a 2016 presidential campaign rally in Bethpage, N.Y.
(Julie Jacobson / AP
(http://www.apimages.com/metadata/Index/GOP-2016-Trump/3e398ae8589945f89da16
2718cd045a1/1/0) )
The Trump presidency has been a boon for at least three groups of people:
late-night comics who see him as a boundless source of hilarity; conspiracy
theorists
(http://www.businessinsider.com/sean-hannity-wikileaks-conspiracy-theory-cia
-hacked-2017-3) panicked over the "deep state's" machinations to subvert
his electoral victory; and constitutional lawyers, scholars and commentators
who feel compelled to survey the legal wreckage caused by the president's
policies and behavior. Count me among the last.
In my circles, the issue du jour is whether a sitting president can be
indicted. President Trump is on the hot seat for possible criminal
prosecution for obstruction of justice arising from his firing on May 9 of
FBI Director James Comey and his more recent threats to discharge Justice
Department special counsel Robert Mueller.
Who else but Trump-the real estate mogul and former TV game show host turned
most powerful person in the world-could have resurrected the indictment
question last raised during the presidency of Bill Clinton? Trump may have
failed to deliver on his campaign pledge to "Make America Great Again," but
he certainly has prompted the country to debate again.
So let's pick up the discussion where we left it during Clinton's
impeachment crisis:
Clinton, it may be recalled, was the second American president to be
impeached-meaning, to be tried before the Senate on articles of impeachment
passed by the House of Representatives and not, as is sometimes assumed,
removed from office (https://fas.org/sgp/crs/misc/R44260.pdf) . The other
was Andrew Johnson. A third president, Richard Nixon, resigned before the
full House voted on impeachment articles that had been passed by that
chamber's Judiciary Committee. Both Clinton and Johnson were acquitted in
their Senate impeachment trials, and neither were removed from office.
In Clinton's case, the articles of impeachment
(http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/artic
les122098.htm) that the House referred to the Senate raised two basic
charges: that Clinton had perjured himself in testimony before a federal
grand jury regarding his relationships with Paula Jones and Monica Lewinsky,
and that he had obstructed justice in an effort to "delay, impede, cover up
and conceal the existence of evidence related to the Jones case."
Because both perjury and obstruction of justice are crimes, the impeachment
articles lodged against Clinton sparked intense debate
(http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/indic
t091098.htm) about whether he could be prosecuted, even if the Senate
acquitted him and he remained on the job. Scholars at the time were divided.
While the predominant opinion was that a president had to be impeached and
removed before he could be indicted, it was conceded by most experts that
the issue was unresolved. It still is.
The reason for the lack of resolution is that the Constitution itself is
both sparse and vague on the question. The only place it refers to the topic
comes at Article I, Section 3, Clause 7, which provides: "Judgment in Cases
of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States: but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Punishment, according
to Law."
Scholars who believe the clause immunizes sitting presidents, such as Yale
Law School professor Akhil Amar, contend that such immunity
(https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-
the-president-be-indicted.html) is implicit in the text of Clause 7, and is
the interpretation most consistent with the overall structure of the
Constitution and the uniqueness of the office of the presidency.
In Amar's view, prosecuting a president before he leaves office would both
distract the chief executive from performing his manifold duties and cripple
the federal government. On two occasions, in 1973 and 2000, the Justice
Department's Office of Legal Counsel (OLC) adopted a similar position in a
pair of lengthy memos. Both Amar, the OLC and many others argue that
impeachment alone is the proper remedy for dealing with a wayward president.
The other side in the debate, while argued by a minority, is no less
formidable. The dissenters maintain that neither the text of the
Constitution nor the intent of the framers bar prosecution. Both Leon
Jaworski, the second Watergate special prosecutor, and Kenneth Starr
(https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-ke
nneth-starr-memo.html?_r=0 ) , who doggedly pursued Clinton, believed that
sitting presidents could be indicted, although neither followed through on
those beliefs.
After years of taking up space in the National Archives, Starr's 56-page
analysis of the indictment question was recently obtained
(https://www.nytimes.com/interactive/2017/07/22/us/document-Savage-NYT-FOIA-
Starr-memo-presidential.html ) by The New York Times via the Freedom of
Information Act. The analysis, prepared at Starr's request by Chapman
University Law School professor Ronald Rotunda, concludes: "It is proper,
constitutional, and legal for a federal grand jury to indict a sitting
president for serious criminal acts that are not part of, and are contrary
to, the president's official duties. In this country, no one, even President
Clinton, is above the law."
In an op-ed published July 27 in The Washington Post, Rotunda wrote that the
analysis still stands today
(https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just
-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?u
tm_term=.1776ac51153f ) . While no Supreme Court cases directly address the
indictment issue, Rotunda maintains that "the history and language of the
Constitution and Supreme Court precedents suggest that the president does
not enjoy general immunity from prosecution. . If the framers [had] wanted
to protect the president from prosecution while in office and to make
impeachment the sole mechanism for proceeding against a president, they
could and would have said so."
Although Rotunda believes the obstruction allegations leveled against Trump
to date are built on innuendo, others insist
(https://www.vox.com/2017/6/8/15742880/donald-trump-james-comey-fbi-russia-i
nvestigation) the allegations have merit and are becoming more credible
with each passing news cycle.
As I have explained
(http://www.truthdig.com/report/item/donald_trump_may_fall_back_on_pleading_
the_fifth_20170612) in this column before, the relevant federal laws on
obstruction are found in Title 18, sections 1501 through 1521, of the United
States Code. In all, the code sets out
(http://www.federalcriminallawyer.us/2011/01/12/federal-law-on-obstructing-j
ustice-a-summary/) 21 separate obstruction crimes.
In previous columns, I have focused on Section 1505, which makes it a felony
to "corruptly" influence, obstruct or impede a pending proceeding before a
federal agency or Congress. The key to assessing a case against Trump under
the terms of the section turns on whether the firing of Comey was done with
the "corrupt" intent to influence, impede or delay the FBI's investigation
into alleged Russian meddling with the presidential election, or to impede
the parallel investigations underway in both the House and Senate.
Since axing Comey, Trump has done little to dispel suspicions of corrupt
intent. If anything, he's seemingly done his utmost to build a textbook case
against himself. Among other missteps, he's threatened to fire Mueller
(https://www.nytimes.com/2017/07/19/us/politics/trump-interview-transcript.h
tml?_r=0) should the special counsel dig too deeply into Trump's financial
ties to Russia, and the president has tweeted
(https://www.nytimes.com/2017/07/22/us/politics/donald-trump-jeff-sessions.h
tml) that he's considering preemptive pardons (by implication, conceding
guilt) for his family members and himself should the need arise. While the
Constitution accords the president broad pardon authority, most observers
doubt
(https://www.washingtonpost.com/opinions/no-trump-cant-pardon-himself-the-co
nstitution-tells-us-so/2017/07/21/f3445d74-6e49-11e7-b9e2-2056e768a7e5_story
.html?utm_term=.9698afd05d2e ) he can pardon himself.
Earlier this week, The Washington Post reported that on July 8 Trump
personally dictated his son Donald Jr.'s initial public statement
(https://www.washingtonpost.com/politics/trump-dictated-sons-misleading-stat
ement-on-meeting-with-russian-lawyer/2017/07/31/04c94f96-73ae-11e7-8f39-eeb7
d3a2d304_story.html?hpid=hp_hp-top-table-main_airforceone-759pm%3Ahomepage%2
Fstory&utm_term=.1ec1f9beba07) about the latter's meeting in June 2016 with
a highly placed Russian lawyer. The statement asserted that the primary
purpose of the meeting was to discuss U.S. policy on the adoption of Russian
children rather than, as later confirmed by Jr.'s emails, to obtain damaging
information about Hillary Clinton-a subject directly related to Mueller's
investigation.
Trump has also publicly excoriated Attorney General Jeff Sessions for
recusing himself from participating in the Russia probe, which could be
considered a form of witness intimidation
(https://www.law.cornell.edu/uscode/text/18/1512 ;) in violation of Section
1512(b), inasmuch as Sessions may be summoned again to give congressional
testimony about his campaign contacts with Russian officials.
Although Sessions clearly acted in compliance with Justice Department
conflict-of-interest protocols in stepping away from the Russia
investigation, Trump thinks
(https://www.washingtonpost.com/politics/trump-talks-privately-about-the-ide
a-of-a-recess-appointment-to-replace-sessions/2017/07/26/2a347d32-723c-11e7-
9eac-d56bd5568db8_story.html?utm_term=.82a262866478) that recusal was
unwarranted. He believes that Mueller would never have been appointed if
Sessions hadn't been "weak" (the most egregious of sins in Trumpland) and
hadn't disqualified himself from exercising supervisory oversight of the
probe.
But the president isn't just unhappy with Sessions and "Russiagate," as the
election-meddling scandal has become known. He has also weighed the
possibility of firing Sessions or pressuring him to resign. With Sessions
out of the way, the master plan would be to name a new attorney general
during the Senate's August recess without the need for a fresh and
time-consuming round of confirmation hearings. The new AG would then be
instructed to dispatch Mueller back to private practice. Game, set and
match. Russiagate, or at least its criminal dimension, would be history and
forever remembered as #FakeNews.
As with most things Trump, however, the master plan was ill-conceived from
the outset, and according to the latest disclosures
(http://www.chicagotribune.com/news/nationworld/politics/ct-trump-confidence
-sessions-20170731-story.html) from White House spokesperson Sarah Huckabee
Sanders, removing Sessions is no longer on the table. The reason it's been
shelved is that the GOP has suddenly found a spine when it comes to
Sessions. Many party leaders have made it known that they won't tolerate
another Saturday Night Massacre
(https://en.wikipedia.org/wiki/Saturday_Night_Massacre) -Nixon's infamous
and ill-fated decision to fire the first Watergate prosecutor, Archibald
Cox.
"If Jeff Sessions is fired, there will be holy hell to pay," Sen. Lindsey
Graham, R-S.C., told CNN in late July. "Any effort to go after Mueller could
be the beginning of the end of the Trump presidency," he added
(http://www.politico.com/story/2017/07/27/lindsey-graham-trump-robert-muelle
r-241027) in a comment to Politico.
What kind of hell might that be? Well, as noted above, the alternative to
indictment is impeachment. And even the pardon card would not save Trump
from that fate, as Article II, Section 2, Clause 1 of the Constitution
expressly excludes "cases of impeachment" from the pardon power.
The obstruction inquiry would never have gotten off the ground if Trump had
held his tongue and kept away from his Twitter account. Russiagate probably
would have ended with charges brought against Michael Flynn and perhaps Paul
Manafort for relatively minor violations of the laws governing the
disclosure of contacts and financial ties with foreign governments, but the
president would never have found himself in the crosshairs of a special
counsel.
But Trump, like Clinton and Nixon, has little, if any, impulse control. So
here we are.
How this all ends is anybody's guess. In the meantime, the late-night comics
will continue to chortle and entertain. Conspiracy theorists will continue
to fidget with their tinfoil hats. And constitutional lawyers, scholars and
commentators will be left parsing the vintage legal issues that Trump has
singularly revived.
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