A President And The “I” Word

The victim of the crime was certain the evidence was sufficient, if not overwhelming, to convict the perpetrator. Yet inexplicably, the prosecutor decided not to pursue the charge, filing a nolle prosequi and ending the case. Did she obstruct justice?

Does the answer to the question change based upon whether the motivation was malevolent or benign? It’s a rational basis to distinguish prosecutorial decision-making, and thus comes into play when questioning whether the President of the United States, the nation’s supreme law enforcement officer under Article II of the Constitution, can be indicted for the crime of obstruction if he tried to exercise his constitutional authority for improper purposes.

Trump’s lawyer, John Dowd, asserted that the president cannot, by definition, obstruct justice because he has the supreme authority to decide what offense is to be prosecuted, and thus has the power to express his views on whether a prosecution should be maintained.

On Monday morning, Axios reported that Mr. Trump’s top personal lawyer, John Dowd, said in an interview that the “president cannot obstruct justice because he is the chief law enforcement officer” under the Constitution and “has every right to express his view of any case.”

This will come as news to Congress, which has passed laws criminalizing the obstruction of justice and decided twice in the last four decades that when a president violates those laws he has committed an impeachable offense.

This implicates two very different issues, which have been routinely conflated in the discussion. What Dowd raised was whether the president can commit the crime of obstruction, for which he could be indicted, prosecuted, and if convicted, punished. Can the president be indicted? The Ken Starr memo prepared to justify his indictment of President Bill Clinton argued he could.

The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.

“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,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

Much as platitudes like “no man is above the law” are viscerally satisfying, it creates a bit of a problem. Could some rogue prosecutor in Alabama indict a president? Even if a judge tosses it, what would happen when the marshals tried to take the president into custody and the Secret Service took umbrage?

Alan Dershowitz similarly contended that a sitting president cannot be charged.

You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate. That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.

What other presidents did, obviously, isn’t exactly a substantive rationale. After all, just because one person got away with murder doesn’t make murder okay. That Trump exercised his constitutional authority, and cannot be charged for doing so, seems to be the crux of Dersh’s argument.  And, indeed, much of the argument surrounding Trump, most notably the travel ban, involves the execution of clear presidential authority with what is believed to be unsavory, if not unconstitutional, purposes.

But this is where we return to the rational distinction between the president’s constitutional authority and his motives. Certainly Trump can’t go to Fort Knox and covertly stuff gold bars into Melania’s Chanel purse, right? Or order the extrajudicial killing of an American citizen by drone strike? Or maybe the answer lies in the underlying purpose behind the act, and people who hate Trump will attribute a malevolent motive to his conduct, while people who support Trump will rationalize it.

Were Trump’s acts motivated by self-dealing, the desire to conceal his own impropriety by expressing his desire to then-FBI Director Jim Comey to lay off General Mike Flynn, or was he exercising the discretion of the chief law enforcement officer to cut Flynn a break for his service to his nation during his career? The Take Care Clause provides that the president “faithfully execute the laws.”

The Founders didn’t include the word “faithfully” for kicks. But the Supreme Court has never interpreted what the obligation to be “faithful” entails.

That word seems at least to imply a measure of choice, of discretion.   What sort of executive implementation of a law passed by Congress is “faithful,” and what would be “unfaithful”?    And, by the way, “faithful” to what or to whom?  (The records of the Philadelphia convention are not much help in answering such questions; the Take Care Clause was talked about very little there.)

The New York Times doesn’t find any of this troubling.

Any child could tell you the answer: People lie when they know they’ve done something wrong. Mr. Flynn and others in Mr. Trump’s campaign and transition team were secretly trying to undermine United States foreign policy as private citizens — which is not just wrong, but a criminal violation of the Logan Act.

The law, however, is not based on what “any child could tell you,” even if that’s the basis for the Times’ editorial opinion. And whether it’s a violation of the Logan Act, which has never been used against a president-elect despite an inglorious history of sticking their noses into foreign relations before taking the oath, is a dubious proposition.

So does a president get away with it? Not necessarily, and that’s because the Constitution also provides for an “I” word that isn’t indictment.

The known facts are too weak to support any federal prosecution, not to mention one as momentous as indicting a sitting president. But even if Mr. Trump did illegally conspire to improve relations with Russia, his critics are pursuing their quarry down the wrong path. Impeachment — not criminal prosecution — is the tool for a corrupt sitting president.

The Constitution doesn’t give the president a free ride to do as he pleases, to self-deal, to act malevolently, to be unfaithful to the laws. Rather, it provides the mechanism to take a wayward president to task while providing him the latitude and security to execute the duties of office without someone, somewhere, indicting him for something.

For all the drama surrounding the Mueller and congressional investigations, the House can impeach Trump whenever it chooses to do so, and he will then be tried by the Senate. Trump won’t be indicted. He won’t be tried. But he might be impeached. That’s the remedy for a Chief Executive who abused his authority, engaged in corruption or violated his oath.

Mueller is a sideshow. Indictment of a sitting president won’t happen. Unless and until Congress decides to impeach, this is all just fodder to keep cable-news watchers occupied by faithfully watching the talking head who most closely aligns with their bias.

40 comments on “A President And The “I” Word

  1. Richard Kopf

    Scott,

    Your post is Important and makes an extremely important distinction. Here is my take:

    1. Even if Mueller has the goods on Trump for a criminal charge, he should refrain from seeking an indictment while Trump is in office.

    2. He should package up the evidence and ship it to the House unless he wishes to wait until Trump is no longer President.

    Ultimately, the act of removing a sitting President is, and should always be, political (in the best sense of that word) rather than judicial in nature. One hopes that Mueller has the good judgment to understand the structural and theoretical reasons why the foregoing is so even if there is a legal argument that would allow for prosecution of a sitting President.

    A critic of my point of view would say: “The Republicans in the House would never impeach and convict Trump even if there was overwhelming evidence of a high crime.” Two responses: (1) remember Nixon; (2) even if an impeachment did not follow, the Peoples’ representatives would have spoken and that is far preferable than having a fundamentally anti-democratic institution (the Judiciary) making the decision.

    All the best.

    RGK

    1. SHG Post author

      Nobody likes being on the minority side of a political battle, particularly when they’re consumed by the belief that they are absolutely right and the other side will bring the Apocalypse down on them. But politics would drive the Republican congressional majority to act if the American people held them responsible for the failure to impeach a president who engaged in impropriety, lest they lose the only think they truly hold dear.

      Politics is a highly imperfect system of governance, but then, we get the government we deserve. That’s true for the losers as well as the winners.

      1. B. McLeod

        Plus, the establishment Republicans have never liked Trump. He kicked all their candidates’ asses in the primaries. If ever the polls suggest that they can take him out without irreparably alienating Republican voters, he will need to have his bags packed.

        1. SHG Post author

          And that’s what makes politics such fun. Trump is an embarrassment to anyone who has a clue about law or governance, and he’s put establishment Republicans in a quasi-untenable position. If they can, without destroying their own careers, they would impeach him in an instant.

    2. Brian Cowles

      Judge,

      I’d like to add a third response on top of yours: (3) remember that many of the sitting Republican representatives don’t like Trump either, and might jump at the chance to put Pence in charge.

      That said, I am now wondering if Mueller could actually sit on the evidence he collects until after Trump’s presidency, and do so ethically. (Legally I somehow doubt there’s much question that he could.) I’m not going to bother anyone with my incredibly uninformed opinion, though.

      -Brian

      1. wilbur

        These Republican lawmakers may want to jump at the chance to get rid of Trump, but they’d best remember what their district’s constituents think of him. And unless crystal clear evidence of a serious crime committed by Trump is laid out, an impeachment effort will not be quietly accepted by Trump Nation. As Bum Phillips used to say, you’re gonna’ have more trouble than a little bit.

        Congress is held in lower regard than Trump. If what is viewed as an illegitimate impeachment proceeds, there will be bloodshed. This isn’t 1974.

        1. SPM

          Unless their name is Hillary Clinton, they don’t have to worry. I live in a rural county that heavily voted for Trump, in a rural state that heavily voted for Trump, and I have yet to meet a single person who actually voted FOR Trump; they all voted AGAINST Hillary. (And I personally know just about everyone in this county.) As long as Hillary is not the Vice President, they don’t care if Trump is removed as President.

          1. SHG Post author

            At Thanksgiving, a roomful of life-long liberals who had always voted Democratic was confronted by one outlier, a college student bent on explaining progressivism. As it turned out, everyone despised Trump. They also despised progressivism. The student was given a tummy rub for being such a good radical, whereupon he went back to eating his vegan stuffing.

    3. Jim Tyre

      Judge Kopf:

      I don’t follow how “remember “Nixon” addresses the question adequately. House Judiciary did indeed approve three articles of impeachment, but he resigned before the full House took action to impeach, let alone before the Senate had its turn.

      1. SHG Post author

        My understanding (and I obviously don’t speak for Judge Kopf) is that Nixon resigned because the evidence and public opinion against him was so overwhelming that he felt he was left with no other choice, even though he was otherwise still a popular two-term president. The point being, get the evidence and the outcome will follow.

        1. Jim Tyre

          I agree that’s why he resigned. Still, its speculation whether the full House would have impeached him or whether, post-impeachment, the Senate would have convicted him.

        2. David Meyer-Lindenberg

          I came away from Andy McCarthy’s book on impeachment thinking a lot of moral authority is needed to turn out a sitting president. Maybe the Congress of your youth, back when Jim was a hundred, had it. Does today’s? Will Al Franken pounding the table come with the same, ahem, gravitas as it would’ve back when all this talk started? And are things likely to get better when Moore is seated?

          1. SHG Post author

            It shouldn’t be easy to impeach a president. It’s a really big deal. Whether they’ll have the guts to do so, if warranted, has yet to be seen, but the bar is higher given the behavior of Darth Cheeto. Then again, who would think we would elect someone like Trump in the first place?

            1. Skink

              Us. But remember the choice we had. The choice was embarrassing, from us to the world. Clinton or Trump, this is the best we could do?

              I fear we’ve allowed that office to be without class–for eternity.

              This is exactly why my namesake wandered into the swamps and woods.

    4. JohnM

      Agreed that any removal be through the checks and balances process as written – the “political” version you stated. He was voted into office by the electorate, and any removal should be done by representatives of the electorate. If we, the people (in sufficient numbers, carefully balanced across specific states), feel that our representatives should impeach and don’t, well, we have another election coming where we can change those representatives. Elections have consequences, etc.

      IMHO, the indictment approach is one that would only be setting the stage to long term instability in the executive, and the government as a whole. Giving an appointed (Federal) prosecutor (special/independent or not) that kind of power in essence creates a fourth branch of government when it comes to checks and balances – and one inside an existing branch. At the state level, it would be complete chaos – assuming the party dichotomy holds, every election would have the loyal opposition trying to legally sack the President.

  2. B. McLeod

    Of course the law isn’t based on “what any child could tell you,” but due to some practical limits, New York Times articles may be.

      1. B. McLeod

        I wouldn’t say kindergarten, but I would say I probably learned more about “journalism” in the 5th and 6th grades than the New York Times knows today.

    1. Norahc

      That could explain the plethora of hissy fits and temper tantrums they’ve been printing since the last election.

  3. Jim Tyre

    The Founders didn’t include the word “faithfully” for kicks. But the Supreme Court has never interpreted what the obligation to be “faithful” entails

    Really? One does not need SCOTUS to know the meaning of all words.

  4. Jake

    What of discovering crimes committed by a sitting president, before he became president?

    (Mueller’s going after Twitler’s finances.)

      1. JohnM

        Hypothetical: Statute of Limitations will run out for the serving President because he can’t/shouldn’t be charged while in office. Could an argument be made that the SoL clock stops running for the sitting President? Is there a mechanism in place already under similar circumstances (other politicians) ?

        Not being a lawyer, and wasn’t able to find anything of relevance on google, I’m hoping that one of the enlightened can clue in the dope.

        Also, I’m probably on every watch list in the country after trying a dozen variants of +”Statute of Limitations” and +”beyond the reach of justice”.

          1. JohnM

            And this is why I need to go take some 100 series “The Law and You – the Basics the Clueless Should Know”.

            Right, an indictment is the mechanism to stop the clock. The dots connected.
            That’s why we have prosecutors charging DNA.

            I am enlightened. Please send a bill.

  5. Jake

    Well, here’s to the hope that Mueller can put Don Cheetohee’s balls into a sufficiently tight enough vice that he steps down and out of the spotlight forever.

      1. Jake

        It’s Darth Hater, but I would have also accepted Trumplethinskin, The White Pride Piper, Tangerine Tornado, or Putin’s Papaya-Flavored Pawn.

  6. Pedantic Grammar Police

    “Or order the extrajudicial killing of an American citizen by drone strike?”

    I see what you did there,.

    I bet Trump is very grateful to Obama for this legacy. A Republican could never start this, but now any president can murder American citizens to his hearts’ content without a peep of protest from either side of the DemoPublican party.

    1. B. McLeod

      Hah! No meanie is safe from the Peeps of Protest (although, there may be restrictions upon where said Peeps may appear).

    2. Morgan O.

      People mock the monarchy, but really you republican (system of govt, not party) types have the whole “sentence first, trial later” thing down. And you don’t seem to have an Alice to your Red Queens.

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