William B. Turner
Donald Trump is unprecedented in every respect as president of the United States. To some extent, every president is; Barack Obama was our first African American president, a possibility that the Founders could never have conceived of.
The historical circumstances any president finds himself in are always unique. Harry Truman was the first, and we can hope, only president ever to order the use of nuclear weapons in war. Abraham Lincoln was the first, and we can hope (I guess) only president to have to call up troops to force seceded states to return to the Union. William Henry Harrison was the first president to die in office, and still holds the record for shortest time in the position, only 31 days.
Trump holds the dubious distinction of being ethically unprecedented in that we have never had a president before who willfully disregarded virtually every rule of conduct as a candidate and now as president. It is true that all presidents lie about some things. It’s very hard to govern a large, unruly nation without lying a bit. But Trump lies habitually, and tells lies that others can easily disprove, about utterly trivial matters when lying offers him no apparent advantage.
One open question that various observers have debated is if the current special prosecutor, Robert Mueller, may indict President Trump if he finds legal reason to do so. It is at least an open question as to whether indicting a sitting president is legally permissible. The Constitution is clear that any official who suffers removal from office via impeachment remains liable afterwards to criminal prosecution for any acts that led to the impeachment, but that is quite different from indicting a president while he is still in office.
It’s hard to tell when Trump was lying, since the story keeps changing, but what prompted the Justice Department to appoint a special prosecutor – who has now indicted four of Trump’s cronies and continues his investigation apparently relentlessly into possible interference by Russia in the presidential election, potentially with the cooperation of Trump campaign staff – was Trump’s firing of James Comey from his position as director of the FBI. Trump accepted the resignation of his National Security Adviser, Michael Flynn, after less than a month in the job when Flynn had to admit to having lied to Vice President Pence and chief of staff Reince Priebus (also long gone) about his conversations with Russia’s ambassador to the United States during the transition period between the election and Trump’s inauguration as President. Flynn, of course, recently set jaws wagging by pleading guilty to having lied to the FBI about his activities during the transition and agreeing to cooperate with Mueller and his team.
Flynn’s resignation only exacerbated existing questions about cooperation between the Trump campaign and Russians, whom U.S. national security agencies agree did interfere in the presidential election. FBI director James Comey was pursuing an investigation into this question, with Flynn as one of his targets, when Trump fired him. Trump claimed at the time that he fired Comey for his alleged mishandling of the investigation into Hillary Clinton’s email use in 2016, but Comey later testified to Congress that he had written memos immediately after meeting privately with the president because he got the sense that Trump was trying to persuade him to stop investigating Flynn, and because he was afraid the president would lie about their conversations.
This news immediately raised the inference that firing Comey was Trump’s version of the obstruction of justice that Richard Nixon committed when he tried to get the CIA to scare the FBI off of its investigation into the Watergate break in by claiming that the incident had national security implications.
In a bizarre rhetorical move that seems more like a covert admission of guilt than a defense strategy, the president’s personal lawyer has claimed publicly that it is impossible for the president to commit obstruction of justice in this situation because he has legal authority under the Constitution to inquire into and direct the conduct of investigations. This is a ridiculous claim. As many of his defenders pointed out at the time, he does have the authority to hire and fire the director of the FBI, but having the power to do something does not mean that every exercise of that power is either well advised or legal. When an investigation potentially implicates the president himself, he should stay as far away from it as possible, as an ethical matter, if not a legal one.
The reason why we have such a thing as a special prosecutor is precisely that we recognize there are situations in which the person conducting an investigation into possible wrongdoing needs to be outside the normal chain of command to ensure that he will be relatively insulated from political interference. As Richard Nixon proved with the notorious Saturday Night Massacre, in which the Attorney General and his first deputy resigned rather than carry out the president’s order to fire the special prosecutor, leaving the task to the good conservative, solicitor general Robert Bork, even the special prosecutor mechanism is imperfect, but it prevailed in the end even against Nixon. Nixon fired Archibald Cox, the first special prosecutor in the Watergate case, only to face overwhelming pressure, both to release the recordings of his conversations in the Oval Office that a staffer had revealed the existence of to the Senate Committee investigating Watergate several months before, and to appoint another special prosecutor, Leon Jaworski. Jaworski would go to the Supreme Court to enforce his subpoena for the Oval Office tapes. The Court ordered Nixon to turn them over, and he did eventually release transcripts of the recordings, which would be his undoing. On the basis of the transcripts, the House Judiciary Committee would vote out articles of impeachment against Nixon, which in turn prompted him to resign less than two weeks later.
Oh, but indicting the president. Given that the key claim motivating articles of impeachment against Nixon was obstruction of justice, which is plainly a crime, one could wonder why Jaworski chose not to pursue an indictment of Nixon. Mr. Jaworski, unsurprisingly, wrote a book about his experiences as Watergate special prosecutor and explained that he worried Nixon would not receive a fair trial if a grand jury indicted him. Jaworski was certain he could get an indictment if he pursued one, but he chose not to out of scruples about Nixon’s right to a fair trial, which he did not think Nixon would get.
This suggests that Jaworski had no qualms about the legality of indicting a sitting president. He chose not to do so on prudential grounds. The Constitutional issue was the right to a fair trial that it guarantees, not any question about whether indicting a president is legally permissible.
This specific legal question arose during Kenneth Starr’s investigation of President Bill Clinton. Starr requested a memo from an expert in the field, who concluded that nothing in the Constitution prevents a special prosecutor from indicting a sitting president. Facts matter in the law, and this memo explicitly rests on specific facts that differentiate it from the present situation. The memo notes repeatedly that Starr’s appointment rested on a specific statute that no longer obtains. Instead, Mueller has his authority from administrative rules governing the Attorney General’s office. No one has contested the validity of Mueller’s appointment, although any lawyer for Trump might well do so if Mueller does indict him as part of his duty to represent his client zealously.
More importantly, the memo also clearly states that none of the conduct under investigation was part of Clinton’s official duties as president. Indeed, some of them clearly contravened his responsibility to ensure the enforcement of the laws. Insofar as Mueller is looking at the reason why Trump fired Comey, he is investigating conduct that clearly does fall squarely within the president’s powers under the Constitution. Mueller’s appointment does authorize him, however, to examine any “matters that arose or may arise directly from the investigation….” Several outlets recently reported that Mueller had allegedly issued a subpoena to Deutsche Bank for records of its transactions with the Trump family, partly because the Bank may have sold Trump loans to Russian banks, including some that the Russian state controls, which provides an obvious, and highly suspicious, reason for the Trump team’s obvious interest in all things Russian.
Amusingly, Trump and his lawyers have “warned” Mueller to stay away from Trump’s real estate deals, but that’s pretty ridiculous. Real estate deals, especially any that occurred before Trump took office, obviously do not involve any actions Trump took within the scope of his job as president, since private real estate deals are not the president’s job. Indeed, part of the problem precisely is that Trump’s private real estate deals may have interfered with his official responsibilities as president. Whether such actions turn out to be criminal is an open question. Mueller knows best. But many observers suspect that Trump’s real estate deals themselves may well involve criminal conduct in ways we just don’t know about yet, and the broad rule allowing for indictment of a sitting president would certainly allow Mueller to indict him for any such crimes.
The Starr memo’s finding that a special prosecutor may indict a sitting president also makes clear that an indictment is just an accusation and, as Jaworski was well aware, part of the point is that the president is a citizen just like any other and therefore has the same right as anyone else to a fair, public trial by a jury of his peers should he so choose. Indicting a sitting president would be a huge event by itself. Putting a sitting president on trial would only magnify the enormity. The Starr memo contemplates the possibility of a trial finding the president guilty, but with any prison sentence deferred until he leaves office.
In Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court held that a sitting president is liable to civil trial, in part because the judge could arrange the schedule of depositions and trial to accommodate the unusually busy schedule of a president. The demands of a criminal trial are potentially very different. If nothing else, in criminal trials, the court is usually very concerned to keep track of the whereabouts of the defendant, as recent negotiations concerning bail between Mueller and the people he has already indicted indicate. Obviously, a major part of the job of being president is international travel, as Trump has done twice since he took office. On the one hand, courts typically require criminal defendants to surrender their passports, which likely is not relevant for the president, who presumably does not enter foreign countries through their usual arrival channels. On the other hand, it would be extremely difficult for a sitting president to abscond during a foreign trip. The Secret Service keeps very close track of the president’s movements, especially when he is outside the United States, so he would have a hard time disappearing.
And impeachment is a distinct matter from any criminal prosecution. The Starr memo quotes a former Supreme Court justice to the effect that a criminal conviction, assuming delayed service of any prison sentence, would not, by itself, have the effect of removing the president from office.
It makes for a fascinating thought experiment to speculate on whether the Republicans would resist the intense political pressure to impeach Trump were Mueller to indict him, much less were he to go on trial, then suffer conviction. That would be to take Trump’s unprecedented character as president to truly impressive heights. The decision to initiate the impeachment process is clearly political, occurring as it does within the House of Representatives, but the standard for removal from office is criminal, reflecting the desire of the Founders to allow for removal of any official, not just the president, who engages in criminal activity during his/her term in office.
If you’re really in the mood to entertain yourself with pure speculation, you might enjoy wondering what would happen if Trump did undergo impeachment and a trial in the Senate found him guilty – talk about unprecedented, that has never happened – how would he react? Would he move out of the White House gracefully (!), or would he try to hole up and defy the authorities? One very much doubts that Trump will have a sudden accession of self awareness such that he would resign as Nixon did. Trump is very much like Nixon in some respects, but Nixon was far smarter than Trump and at least understood the principles of good government, even if he only honored them in the breach.
What would the Secret Service do? They have a duty to protect the president, but they also have a more general duty, as do all law enforcement officers, to avoid loss of life if at all possible, and technically, if the Senate has found Trump guilty, he would no longer be president. This could be quite entertaining if you enjoy thinking about future, possible train wrecks.
But to summarize, there is nothing obviously in the Constitution that precludes indicting a sitting president. The Supreme Court has held that a civil trial against the president may proceed while he remains in office. But even an indictment resulting in trial and conviction, with sentence deferred, does not necessarily have the effect of removing the president from office. Whether the Republicans would feel compelled to impeach a convicted president is anyone’s guess. They are not long on scruples, after all.