There have been a great many arguments made about why Trump can and cannot be indicted, most of which reflect the writers’ wild dreams with whatever rationalizations are necessary to get there. Former Obama administration Acting Solicitor General, Neal Katyal, has taken a very different path in a New York Times op-ed, that it would be in Trump’s best interest for a president to be susceptible to indictment.
First, some constitutional scholars believe a sitting president cannot be indicted. And second, two Department of Justice opinions, dating back to the Nixon and Clinton administrations, side with this view.
Ken Starr thought otherwise, but the question isn’t resolved because of the position taken by any of these well-meaning folks. It’s neither left to OLC nor Starr, nor constitutional law profs, nor pundits, whether qualified to opine or not, to decide. That decision rests with the Supreme Court, and they have never ruled on the specific question. Everything else has been an exercise in Dudeism.
But there are deep problems here. For one thing, the scholars who believe that a sitting president cannot be indicted always couple that belief with the insistence that the remedy for a president who commits a crime is to impeach him first (so he is no longer “sitting” and could then be indicted). Otherwise, a president would be above the law; he could, say, shoot someone in the middle of Fifth Avenue and face no legal process whatsoever. For that reason, the “can’t indict a sitting president” view is necessarily dependent on Congress having all of the information necessary to conduct thorough impeachment proceedings.
Katyal is a smart guy, so it’s curious that he writes such tripe. An indictment is an accusation handed down by a grand jury. It’s not the accusation, the indictment, of which he speaks, but the prosecution upon the indictment that follows. If the president was indicted in the District of Hawaii, and the indictment was held until the president’s term of office was over, the defendant never arrested, never arraigned, never detained, and assuming there were no speedy trial or statute of limitations issues, then what would it matter?
This is where the argument seems designed to intentionally sail over the heads of the unwashed, which is disingenuous since one must assume that these really smart ex-DoJ tools know better. The argument isn’t about the man, but the office. And that’s the point, that they don’t want to lock up some random miscreant named Trump, but this amoral ignoramus who sits in the Oval Office. The point of the indictment is to unseat a president, not to put Trump in prison after his term is over.
The Constitution talks about impeachment, but says nothing about indicting a president. Whether that can be viewed as an oversight or expressio unius est exclusio alterius, it’s a dangerous question no matter which way it comes out.
Aside from separation of powers issues (imagine a judge ruling that the guy who was president be detained at some MCC) and the potential for mischief if a rogue prosecutor in Snohomish County decides to indict, or the gunfight at the White House when the local sheriff shows up to arrest the president and the Secret Service takes issue, there is the fact that the president has constitutional duties to perform. It’s hard to do so from prison.*
While the Supremes have held that a civil suit from behavior that occurred before he was elected can be litigated during his presidency, he isn’t susceptible to suit for conduct done during his presidency. The fortune cookie reaction is that “no man is above the law,” because we Americans so love our platitudes. But even if the man isn’t above the law, the office may be.
Practically speaking, this view is not so good for Mr. Trump. To say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so that it may decide whether the president should remain in office. It means, in short, that should Mr. Mueller conclude he cannot indict a sitting president, he would also have to turn over all of the information he has uncovered to Congress.
As Katyal contends, this could lead to his impeachment, even if he can’t be indicted, and he assumes it will be sufficiently bad to do some serious damage. It’s a practical argument, but how would Mueller’s providing a report to Congress be worse than an indictment? Or is Katyal arguing that if DoJ changed its position, and Mueller didn’t indict, the whole matter ends to Trump’s advantage?
If Mr. Giuliani is correct that Mr. Trump cannot be indicted, then the other idea being floated by Mr. Trump’s lawyers — that such testimony would amount to a “perjury trap” — makes little sense.
This ignores the possibility that the potential for prosecution lingers beyond the term of office. If the underlying argument is that a president cannot commit a crime, a la the Nixonian position that if the president does it, it’s by definition lawful, then there could be no perjury trap as the president could lie with impunity. But he could also refuse to show with impunity. He could ignore subpoenas with impunity. The only arguable proviso is that he did so in furtherance of the performance of his duties as president.
As exceptionally easy as it may be to appreciate the sense of unfairness that this president ignores the norms of the office, from profiting off his post to muttering the most outrageous and false assertions, the dangers of TrumpLaw arguments is that the same norms we aspire to return to after he’s gone won’t be there anymore.
As Benjamin Franklin is said to have quipped, we have “a republic, if we can keep it.” Perhaps Trump can be prosecuted for conduct committed in office after his term is over, but that’s not what anybody cares about. If he was to be prosecuted while in office, so too would every president who follows, and that would surely make the job more attractive to the best possible candidates.
Katyal surely realizes this, and since he’s trying to be practical, seems willing to give up the future of the Republic for the sake of ousting this one guy from his office. Prosecute Trump and there’s no going back when the Office of the President is held by a lesser miscreant.
*Some anarcho-syndicalist wag will say this is the best possible outcome, but until the revolution, we still need a president to do presidential stuff.