Recently there’s been talk about the indictment of the President and whether this is permissible or not. The New York Times has a good article on the subject by former Solicitor General Neal K. Katyal, who lays out the various assertions, interpretations, and results of the controversy.
Begin with the basics. An indictment — a formal accusation that someone has committed a crime — can be brought only by a prosecutor working either in the federal or state system. Mr. Mueller is one such prosecutor. But even if Mr. Mueller has the goods on Mr. Trump, two barriers remain before he may indict him. 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. From that vantage point, it looks as if Mr. Giuliani’s report about what Mr. Mueller said appears plausible.
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.
This is quite tricky ground, empirically speaking. To suggest that the President is immune to criminal prosecution leaves the state with a situation in which the most powerful individual in government is theoretically without restraint, at least until the end of their term. This is not a stable situation.
On the other hand, if the President is not immune, then an unscrupulous prosecutor could consume large amounts of a President’s valuable time, or at least so we’d like to believe, although the reports on our current President’s television viewing habits leads me to believe that, at least in some cases, the time is not so valuable.
On balance, on this issue along, empirically I’d prefer the President not to be immune, because the rogue prosecutor has important constraints imposed by the judicial system. While such a prosecutor may succeed in marching a sitting President off to jail, a judge must sit in on an immediate hearing concerning bail and that sort of thing, constituting a second opinion on the prosecutor’s case. If we give the President immunity, he may flout all laws and, for the objector waving the impeachment flag, I must answer that impeachment takes time, time in which great damage may be done to individuals by the vindictive person, and to the state by the traitorous or foolish.
Moving onwards, and as Katyal touches on, a core principle of the United States is that we are all equal before the law. The assertion that the President is immune, even if temporarily, is as galling as it is dangerous.
But there’s one more point which Mr. Katyal appears to have ignored, and that is the division of powers question. I’ve heard it mentioned that removal of the President is primarily a political matter, and thus should be left for Congress. Yet, violations of the law are matters for neither Congress, which merely prescribes punishment, nor the Executive, but the Judiciary and our various law enforcement agencies. If a President breaks a law, it should not and cannot be a matter for Congress to decide upon, because that would rob the Judiciary of its primary responsibility for adjudicating the law, and its punishments. While we may choose to suspend indictments for minor law-breaking such as speeding and that sort of thing, transferring the entire responsibility to Congress, and handing it a metaphorical nuclear device as its only official tool for punishment, would be a mistaken reading of the Constitution.
Those scholars who claim a sitting President cannot be indicted should hand in their diplomas. They have no idea of what they speak.
