The cover of the June 18 issue of Time magazine depicts President Donald Trump gazing in a mirror that reflects an image of himself wearing a crown and an ermine-trimmed robe. The illustration is plainly meant to satirize the president’s kingly self-regard, but if Special Counsel Robert Mueller will not indict Trump, as one of the cover stories asserts, the president’s vision of absolute power may not be as delusional as the illustration suggests.
A month earlier, The New York Times and The Washington Post reported that, according to Trump’s personal lawyer, Rudy Giuliani, Mueller’s office had advised Trump’s legal team that the president would not be indicted. Giuliani said that Mueller would adhere to Justice Department policy barring the prosecution of a sitting president.
The special counsel’s office declined to comment, and because Giuliani has proven to be an unreliable messenger, the question remains whether or not Mueller will actually indict Trump.
In the Time cover story, Jack Goldsmith, who was head of the Justice Department’s Office of Legal Counsel (OLC) from 2003 to 2004, argues that Mueller will not indict Trump because he cannot. The reason he cannot indict, Goldsmith explains, is because he is bound to follow two opinions on presidential immunity written by the OLC, which provides legal advice to the president and executive agencies. The most recent opinion was issued by the OLC in 2000, at the end of President Bill Clinton’s term, and it reaffirms a Nixon-era OLC opinion on presidential immunity, concluding that “a sitting President is constitutionally immune from indictment and criminal prosecution.”
The almost 20-year-old special counsel regulations state that Mueller “shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” The regulations permit removal of the special counsel by the Attorney General for “good cause, including violation of Departmental policies.” The view of most, but not all, of the legal experts who have examined the question, including the view of Neal Katyal, who wrote the regulations while serving in the office of then-Deputy Attorney General Eric Holder, supports Goldsmith’s assertion that DOJ “policies” include OLC opinions, which are therefore binding on Mueller. Samuel Estreicher and David Moosman, in a recent Just Security article, present an elaborate and carefully reasoned argument, based on the text and history of the special counsel regulations, for concluding that “the OLC opinions and their bar to indicting a sitting president apply to Mueller.”
However, it does not follow that either the special counsel regulations or the Constitution itself prevents Mueller from prosecuting Trump. The regulations allow Mueller, in “extraordinary circumstances,” to ask Deputy Attorney General Rod Rosenstein, as the Justice Department official supervising the investigation, to approve a departure from any departmental policy. The regulations favor granting such a request – the Attorney General’s supplementary information appended to the regulations require “great weight” to be given to the views of the special counsel – unless Rosenstein determines that prosecution would be “so inappropriate or unwarranted” that it should not be pursued.
A careful reading of the 39-page legal memorandum supporting the 2000 OLC opinion yields the surprising conclusion that in the current political climate, there are extraordinary circumstances that warrant an exception to the policy of presidential immunity. The logic of the memorandum’s own reasoning supports the conclusion that the Constitution permits prosecution of a sitting president when the impeachment process no longer provides an effective means for upholding the rule of law.
I
The OLC memorandum, dated October 16, 2000, begins by acknowledging that neither the text nor the history of the Constitution provides a definitive basis for determining whether a president can be prosecuted while still in office, and that the Supreme Court has never ruled on the issue. The constitutional analysis adopted by the memorandum, written by then-Assistant Attorney General Randolph Moss, is based on a “balancing” test, which Moss notes “has been adopted as the appropriate mode of analysis by the [Supreme] Court” for resolving separation of powers issues.
The test, as applied by the memorandum to the issue of presidential immunity, considers whether “the burdens imposed by indictment and criminal prosecution on the president’s ability to perform his constitutionally assigned functions … are justified by an overriding need to promote legitimate government objectives.” These objectives include “an important national interest in ensuring that no person – including the president – is above the law (emphasis added).”
The memorandum devotes a lengthy discussion to the “dramatically destabilizing effect” a prosecution would have on the presidency. But while acknowledging the important governmental interest in “upholding the rule of law” that would be served by prosecution, the memorandum does not actually weigh that interest against the burden imposed on the presidency. This is because, according to the memorandum, impeachment provides an alternative means for enforcing the rule of law, and if the alternative would serve that purpose, the government must use the alternative. “The constitutionally specified impeachment process ensures that the immunity would not place the president ‘above the law.’”
Fair enough. However, when the availability of an alternative means for accomplishing an important governmental objective is sufficient to prohibit the governmental action in question, the test that is actually being applied is a version of the constitutional standard of strict scrutiny. And strict scrutiny requires that any alternative means of accomplishing the objective must be “effective.” Even if one does not accept the categorization of the OLC analysis as strict scrutiny, the impeachment process is able to “ensure that the immunity would not place the president ‘above the law,’” as the memorandum argues, only if impeachment can actually work to remove a culpable president from office. In short, prosecution of a sitting president is permissible, according to the memorandum’s own reasoning, when impeachment becomes an ineffective means of holding him accountable.
When can the impeachment process be regarded as ineffective? An objective and ascertainable standard can be found in a test that would make the impeachment process ineffective if, despite the availability of sufficient evidence for the Senate to convict, the House declined to even initiate an impeachment inquiry. There is already sufficient evidence in the public record for the Senate, sitting as a jury, to find the president guilty of attempting to obstruct justice. Alex Whiting, in an analysis of the case against the president in a March 2018 Just Security article, concluded that the known facts are “sufficient to convince a jury” that by firing then-FBI director James Comey, Trump attempted to obstruct justice in violation of Section 1512(c)(2) of Title 18 of the United States Code. The failure of the Republican majority on the House Judiciary Committee to respond to any of the repeated requests by Democrats to hold the president accountable signifies an unwillingness, rather than an inability, to begin impeachment hearings, based purely on partisan considerations, and not the insufficiency of the evidence against the President.
Even if Democrats were to take control of the House in November’s midterm elections and vote for articles of impeachment, the prospect of obtaining the two-thirds majority required to convict in the Senate is so unlikely in this era of hyperpartisan polarization, that, barring disclosure by Mueller of evidence of egregious criminal conduct, removing Trump from office can be fairly characterized as very near impossible. Under these circumstances, there is no way to enforce the national interest in upholding the rule of law unless the president is held accountable by prosecution before he leaves office.
The OLC memorandum suggests that the ability to prosecute the president after he leaves office provides an effective means for enforcing the rule of law. But consider the murder hypothetical presented by Giuliani in an interview with HuffPost, in which he said the president could not be prosecuted while he remains in office even if he had shot and killed Comey instead of firing him. If the president began to order the killing of his political enemies, would anyone seriously argue that the rule of law remains in force so long as Trump could be prosecuted after he leaves office? If members of Congress were too fearful to try to remove him by impeachment, would the president, in effect, have a license to kill for the duration of his presidency? Immunity would mean that the president would not even be subject to arrest.
Clearly, the memorandum never contemplated anything as unprecedented as a broken impeachment process. However, when the unprecedented occurs, the argument that immunity, if only “temporary,” would not violate the rule of law, as the memorandum suggests, becomes unwarranted, even absurd. Lawlessness would rule whether the crime the president was free to continue committing is murder or obstruction of justice or any other felony.
II
It’s time for the special counsel to take over from a supine Congress the responsibility for vindicating the rule of law by prosecuting the president for attempting to obstruct justice and any other crimes for which Mueller’s team has sufficient evidence to indict. Or so Mueller should argue in presenting Rosenstein with the case for making an exception to the DOJ policy of following the OLC opinions, which dictate presidential immunity.
Prudence may counsel waiting for congressional reaction to Rosenstein’s report to Congress, which is likely to include the special counsel’s interim findings on obstruction. Mueller’s team might consider following the example of four of the lawyers on the staff of the Watergate special prosecutor Leon Jaworski. Contending with a legal staff that was divided over the issue of presidential immunity, these four lawyers submitted an extensive memorandum to Jaworski, setting out the legal arguments for indicting President Richard Nixon for obstruction of justice.
Jaworski later explained why he rejected their recommendation: “[T]here was serious doubt that the United States Supreme Court would have permitted an indictment of a sitting president for obstruction of justice, especially when the House of Representatives’ Committee on the Judiciary was then engaged in an inquiry into whether the President should be impeached on that very ground.” The emphasis is in the original quote. “The proper constitutional process, Jaworksi added, “appeared to us to be that of letting the House Judiciary Committee proceed with its impeachment inquiry.”
But this route is not available today. Instead, the House is paralyzed by extreme partisan polarization, leaving criminal prosecution as the only means of enforcing the rule of law against a president the special counsel has probable cause to believe is guilty of attempted obstruction.
There is a popular assumption that it is perfectly normal for impeachment, being a political process, to turn into a no-holds-barred partisan fight, with members of Congress voting along party lines, rather than deciding the merits of the case. But this is not how the Framers of the Constitution viewed the impeachment process. The great danger inherent in any effort to remove the president from office, Alexander Hamilton observed in The Federalist No. 65, is that “the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.” The Senate was thought by the Framers to be “the most fit depositary” for the decision about guilt or innocence after the House of Representatives, acting as prosecutor, voted articles of impeachment, because the Senate was regarded as the body most likely “to preserve, unawed and uninfluenced, the necessary impartiality.”
The House also has a constitutional duty to act impartially. Charles L. Black, one of the leading authorities on impeachment, in his classic work, Impeachment: A Handbook, expressed the view that both the House and the Senate are “duty-bound to act…as free as may be of partisan political motives and pressures.” Cass Sunstein “thinks” that if the president has committed an impeachable offense, the House is obliged to vote to impeach him and the Senate is obliged to vote to convict. The reason Sunstein is not more definitive, he writes in Impeachment: A Citizen’s Guide, is because, by analogy to prosecutorial discretion, “We the People, acting through our elected representatives, might have prosecutorial discretion with regard to the impeachment power as well.” But if impeachment is to serve as a means of upholding the rule of law, there must at least be an articulable and objective reason for exercising the discretion not to impeach.
Today’s Republican-controlled House has not only proved itself unwilling to conduct an impartial bipartisan inquiry into the commission of impeachable offenses by this president; House Republicans are also trying, through various efforts by Representative Devin Nunes of California, the chairman of the House Intelligence Committee, and others, to destroy the credibility of the special counsel’s investigation. Bashing Mueller’s probe is designed not only to undermine any criminal prosecution, but to defeat impeachment by discrediting any report Mueller will submit to Rosenstein, and that Rosenstein could submit to Congress, and possibly release to the public. “Nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation,” Giuliani has said.
Conservative Republican leaders in the House have finally filed articles of impeachment, but they are against Rosenstein, charging him with failure to adequately respond to subpoenas requesting hundreds of thousands of pages of documents related to the Russia investigation and Hillary Clinton’s use of a private email server, and failure to recuse himself from authorizing a Foreign Intelligence Surveillance Court application to wiretap former Trump campaign adviser Carter Page.
Our system of checks and balances is threatened as never before by unprecedented partisan polarization in Congress, for which the Republican Party is primarily responsible, and which has produced efforts by House Republicans that can be fairly characterized as complicity with the president in destroying the credibility of Mueller’s investigation. If there is one instance in which we can say the impeachment process is not working as constitutionally designed, it is when Republican members of the House, willing to support the president at almost any cost, become implicated as potential co-conspirators in the president’s misdeeds. What we are witnessing in Congress today is “the kind of partisan fight to the death that has destroyed democracies elsewhere in the world, including Europe in the 1930s and South America in the 1960s and 1970s,” as described by Harvard government professors Steven Levitsky and Daniel Ziblatt in their book, How Democracies Die.
III
One more difficult issue remains for Mueller and Rosenstein to confront in deciding whether a request to indict should be approved, and that is the role the Supreme Court will almost inevitably play following any indictment of President Trump. Even if prosecuting the president can be justified by a rationale consistent with the logic of the OLC opinion, an indictment would still be vulnerable to challenge in the Court, which is not bound by OLC opinions and may have a different view of what is required by the Constitution than the one held by the author of the 2000 OLC opinion. How the Court would decide the question of presidential immunity – an issue that was argued by the Watergate Special Prosecutor, but avoided by the Court in United States v. Nixon (1974) – remains uncertain.
It is possible that, in a historic confrontation over the issue, a majority of the Court would conclude that a sitting president has an absolute immunity from prosecution without regard to the effectiveness of the impeachment process. The Court might be convinced that it cannot assess the effectiveness of the process in deciding whether the president is immune from prosecution, because impeachment is a “political” or “nonjusticiable” issue and therefore is committed solely to Congress to resolve in whatever manner it sees fit.
The Supreme Court, in a 1993 case refusing to review the impeachment conviction of a federal judge, broadly stated that “the judiciary, and the Supreme Court, in particular, were not chosen to have any role in impeachments.” Nevertheless, three Justices, in concurring opinions, cautioned against imposing an absolute bar to justiciability, suggesting that judicial review of the impeachment process may be warranted in what Justice David Souter described as “unusual circumstances,” in which Congress were to act in a manner “seriously threatening the integrity” of the process, and “the consequent impact on the Republic [were] so great as to merit a judicial response despite the prudential concerns that would normally counsel silence.”
There are many legitimate reasons to account for congressional inaction on impeachment that would not impair the integrity of the process, including higher legislative priorities, insufficient evidence to sustain articles of impeachment, or an estimate of ultimate failure, for evidentiary reasons, to garner the two-thirds vote required to convict in the Senate. But the failure to impeach the president and remove him from office when there is compelling evidence of an impeachable offense, as the previous discussion explains, undermines the probity of the process, especially when the inaction is accompanied by the kind of efforts perpetrated by House Republicans to sabotage the criminal and counter-intelligence investigations.
Katyal has described the dynamic equilibrium between impeachment and prosecution: If impeachment is on the table, then indictment must be off. But if impeachment is off the table because of “nefarious congressional activity,” then indictment must be on. Although Katyal is not convinced that the activity of Republicans in Congress has descended to the level of “nefarious,” he believes that an analysis taking account of the political realities affecting the functionality of the impeachment process reflects “the genius of our system, and [is] the only way to insure we remain a government of laws which no one is above.”
Moreover, a majority of the Court might well conclude that Trump can be prosecuted by applying a balancing test without even addressing the effectiveness of the impeachment process. In a unanimous decision in United States v. Nixon, the Court rejected an absolutist view of presidential power in favor of a general balancing test, declaring that the president’s interest in maintaining the confidentiality of tape recordings of conversations with White House aides “must be considered in light of our historic commitment to the rule of law.” The Court concluded that the unique nature of a president’s activities under Article II of the Constitution “cannot be read to mean in any sense that a President is above the law” and found the president’s interest in confidentiality was outweighed by “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.”
Whatever the Court might ultimately say about the issue of presidential immunity, the possibility of losing a challenge to an indictment should not be a reason for deciding not to prosecute Trump. Indeed, it can be argued that the special counsel has not only the power, but the constitutional duty, to prosecute when the impeachment process fails to fulfill the check-and-balance function it was designed to serve. The governmental objective described by the OLC memorandum as the “national interest in ensuring that no person – including the president – is above the law” is not merely an important or compelling interest. It is an interest dictated by the Constitution itself, specifically, by the Impeachment Clause contained in Article II, Section 4, which provides that “the President…shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The very fact that the majority of the delegates to the Constitutional Convention prevailed over a minority who resisted any provision at all for removing a president, signified a triumph for the applicability of the rule of law to the president himself. Responding to the minority in words that continue to strike a deep chord in the hearts and minds of Americans, Virginia delegate George Mason declared, “Shall any man be above justice? Above all, shall that man be above it, who can commit the most extensive injustice?” When impeachment fails, the constitutional principle it embodies should compel criminal prosecution as the only effective means for upholding the rule of law.
“If men were angels, no government would be necessary,” James Madison famously observed in The Federalist No. 51, but human nature being what it is, the great difficulty in framing a government to be ruled by “men over men,” he warned, lies in the difficulty of “first enabl[ing] the government to control the governed; and in the next place oblige it to control itself.”
Without indictment and prosecution, the principle that no person – not even a president – is above the law will endure as little more than an empty slogan on a tattered flag flying over a nation ruled by a dangerously out-of-control and legally uncontrollable president. This is what the Founders would surely have regarded as tyranny.
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