Friday, December 21, 2018

On the Question of Indictments

by Nomad

In a poll this week, out of all the choices, the majority of NP readers predicted that Trump would be indicted and removed from office. Nearly half of all respondents said that Trump would either be indicted (and forced to resign or impeached by Congress).
As with most things tainted by politics, it's unfortunately not quite as cut and dry as that.

The Indictment Immunity Debate

The scandal-tortured Trump presidency has brought up a fundamental legal question. Outside of the constitutional process, namely, impeachment, can the president be held legally accountable while he is in office? Can he be indicted for crimes?

John Dowd, President Trump’s personal attorney, asserted that because he’s the president, Trump cannot be guilty of obstruction of justice. (Just one possible indictment.)
The reason?
According to Dowd, the President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case. Witness tampering and attempts to use his presidential powers to close down investigation is a bit more than "expressing his views."

It's actually a clear violation of the Fifth Amendment, which requires that the law be applied evenhandedly and not used to punish disfavored individuals or groups. That would, of course, include the president and his family.
Trump and his supporters say that the executive office, regardless of the circumstances, is free from legal prosecution for alleged crimes. While in office, impeachment is the only means of removal. Indictments are out of the question. 

However, many legal experts agree with that assessment. The Economist, for example, recently stated categorically:
To indict a president via “an unelected grand jury and prosecutor” is “inconsistent” with the framers’ “carefully considered judgment” that it is impeachment or bust. Indictment in office would subvert the “underlying dynamics of our governmental system in profound and necessarily unpredictable ways”.
Certainly, one can see the possibilities for abuse. Capricious and illegitimate allegations against the president on a weekly basis would indeed amount to harassment. Nobody wants that. But what about "amply merited criminal indictments" put together by an experienced, independent special counsel?
Does this count for nothing?
The carefully-considered judgment of the framers of the Constitution could never have calculated that a political party would turn a blind eye to the kinds of corruption found in nearly every nook and cranny of the Trump administration. 

Above the Law?

On the other side of this argument sits Harvard Law School Professor Laurence Tribe. He has pointed out that if the president cannot be indicted, then justice would always be thwarted. The president's successor -following a successful impeachment- could simply pardon the president in every case and no matter what the charges and how much evidence of guilt.

Tribe believes that the Constitution never intended that the president shouldn't be held legally responsible for criminal wrong-doing. Being forced out of office by Congress should not be the end of a criminal president's culpability.

Imagine this scenario (inspired by Trump's own boast). A president invites a much-loathed opponent to the Oval Office, removes a pistol from his desk drawer and fatally shoots the poor man. Would the president be protected from a criminal indictment in this case? Must we rely on the impeachment process alone in such a case? Would it be necessary to first remove the murderer from office through impeachment before any further prosecution?
As Tribe says:
Surely, there must be an exception for that kind of case: Having to wait until the House of Representatives impeaches the alleged murderer and the Senate removes him from office before prosecuting and sentencing him would be crazy. Nobody seriously advocates applying the Office of Legal Counsel (OLC) mantra of “no-indictment-of-a-sitting-president” to that kind of case.
So far, as far as we know, Trump has not killed anybody, but Tribe notes, the same principle can be applied for other serious crimes.
The same is true for any number of other cases that come readily to mind. Among those, in my view, must be the not-so-hypothetical case of a president who turns out to have committed serious crimes as a private citizen in order to win the presidency. Whether the president committed such crimes in collusion with a shady group of private collaborators or did so in conspiracy with one or more foreign adversaries, it should not be necessary for the House to decide that such pre-inaugural felonies were impeachable offenses, and for the Senate to convict and remove the officeholder before putting him in the dock as an alleged felon and meting out justice.
Tribe also argues against the very common position that a presidential indictment would interfere with the executive leadership. The anti-indictment crowd says that a president forced to defend himself against- perhaps multiple- indictments would find little time to carry out his duties. (In Trump's case, he seems to have a lot of free time, to devote to golfing, tweeting and watching Fox and Friends.)

Tribe dismantles Mr. Giuliani's argument, particularly the "unless they incompatibly interfere with exercising his executive duties" part.

That defense, says Tribe, just doesn't hold water. The same argument could be made about the impeachment process which is an accepted constitutional process.  The drafters of the constitution didn't feel that the impeachment process would interfere with the president's duties, why, Tribe asks, should a criminal indictment be treated differently?

Wikipedia lists 10 examples of Republicans calling for impeachment, from spurious claims that Obama was not born in the US to his role in the Benghazi attack. Back then, no GOP member was saying that such claims would impend the president's ability to carry out his duties. 

Presidential Immunity vs Rule of Law

Tribe's opinion has some unexpected backing: Ken Starr, the independent counsel who investigated former President Bill Clinton’s affair in the 1990s.
In a recent interview, Starr stated that, in his opinion, provided there is sufficient evidence, a special prosecutor could indict a president. However, he added:
“But the Justice Department has a different view and, as you know, had a different view for almost half a century, going back to a brief file by then–Solicitor General Robert Bork, then Office of Legal Counsel formal opinions, including during the Clinton administration.”
In Starr's mind, the rule of law- especially with regards to criminality-cannot be ignored. The vindication of the criminal laws outweighs whatever presidential immunity that the Justice Department offers through its guidelines.

The question of executive immunity from prosecution will very likely go to the Supreme Court. In that case, who can tell what the outcome would be? However, it is wrong to think that idea, promoted by Trump's defenders, that an indictment of a president is impossible.

In the meantime, this dubious immunity from an indictment does not apply to the Trump family and- rather surprisingly- to the vice-president.
(On the verge of an indictment on corruption charges, Spiro Agnew, Nixon's vice-president, resigned. There was no question of executive immunity in that case.)
This conjures up the jarring prospect of a president repeatedly issuing pardons- at least, for federal crimes- for the last two years of his presidency.

The Re-election Paradox

Then there is the middle path.
Walter Dellinger, a former solicitor general and Professor of Law at Duke University School of Law,  has said that even though, generally speaking, a sitting president cannot be indicted, the White House should not provide a sanctuary from prosecution.
The long-standing Department of Justice policy against indicting sitting presidents is, says Dellinger, a "myth."
“The notion that a sitting president can’t be indicted cannot be a categorical rule. Suppose a president went nuclear and without justification pardoned all his or her co-conspirators in serious crimes. I have no doubt that the Justice Department would revisit its policy and approve an indictment of the only person left standing — the president himself. The policy has changed before, and it can change again.”
This DOJ memo on guidelines is, legally speaking, hardly worth the paper it's written on. It's actually not legally binding. The only question here is whether Mueller wants to be the person who brings such an important constitutional question to the high courts. It's long overdue.
Furthermore, Dellinger argues that a sitting president might have immunity but that shield vanishes the moment his/her term in office finishes. And that is where things in the Trump story turn devilishly tricky.

On January 20, 2021, - the moment a new president is sworn in-  Donald Trump could be indicted on criminal charges. He would, in effect, march directly from the White House to the courthouse. However, that delightful scenario holds true as long as the statute of limitations has not expired.
Even Fox News darling Judge Andrew Napolitano noted in a recent interview:   
The DOJ has three opınıons. Two say you can't ındıct a sıttıng presıdent. All three agree about the statute of lımıtatıons. Indıct ın secret. Keep ıt and unseal ıt the day he gets out of offıce.
You can't let a person go scot-free because he's ın the Whıte House.
In this scenario, Robert Mueller has already filed sealed indictments against the president which will spring to life as soon as he leaves office.
Dellinger notes another paradox: 
“If you can’t issue an indictment to stop the statute of limitations, it perversely gives the president incentive to run for a second term to allow him to avoid prosecution.”
For most of the relevant federal offenses, the statute of limitations is five years, measured from the date of the crime.
Trump’s payments to hide his improprieties may have been made during the 2016 campaign. If he loses re-election and leaves office in January 2020, the statute of limitations will still be running. Like all private citizens, he will be exposed to potential prosecution.
However, if he wins a second term and serves through 2024, the statute of limitations will have expired for many offenses.

This puts Trump in a rather bizarre position. In order to avoid prosecution, he must somehow win (or steal) the next presidential election. 
And he must somehow win, under the intense scrutiny of the committee members in the Democratic-led House. He must win without Putin's collaboration. 
And somehow he must win in 2020, without engaging in any further criminality -which would set the clock ticking for a new statute of limitations.  

All that's going to be a mighty tall order for a man like Trump.