The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. — Article II, Section 4 of the US Constitution
There has been a lot of discussion in both the comments sections here, as well as by various knowledgable and in some cases unknowledgable commentators in the news media, about whether a sitting president, specifically the current President, can be indicted. A lot of this discussion – and I’m going to attempt to not create a straw man here – defaults to a sitting president cannot be indicted because the only way to remove a sitting president is through impeachment and that this is Department of Justice policy. The better or, perhaps, more accurate answer is that this is actually an unsettled question and we really do not know.
There is, without any doubt, a 1973 Department of Justice memo that issued the guidance that a sitting president could not be indicted. The Watergate Special Prosecutor’s team, however, prepared a legal brief arguing that this was not the case, but never actually fought the issue. Though they did include the argument in their brief regarding subpoenaing the Nixon’s White House tapes. My professional assessment as a political scientist and criminologist is they chose not to have that fight at that time because they didn’t have to as Congress had begun impeachment. During the Clinton administration, the Whitewater Independent Counsel’s team also prepared a legal brief challenging the 1973 guidelines and arguing that a sitting president could be indicted, but here too they never pushed the issue. My professional assessment is that it was for the same reason – the Republican majority Congress had made it clear that they would begin the impeachment process. In both cases, two different legal teams dealing with two different presidents from two different parties accused of engaging in very different types of improper conduct chose not to pick a fight that would have likely gone to the Supreme Court, risking a ruling that would enshrine the 1973 DOJ guidance as constitutional and limiting the power of future prosecutors dealing with future presidents’ bad acts. You can find all of these legal memos at this link (and I’ll upload the whole pdf at the bottom of the post).
That lawyers actually involved in either setting these guidelines or challenging them disagree is significant, but it doesn’t get us very far. Neil Katyal, former Acting Solicitor General of the United States, who wrote the most recent Department of Justice Office rules for a special prosecutor, had this to say about this issue (emphasis mine):
It is true that the special counsel regulations (which I drafted in 1999 for the Justice Department) generally require the special counsel to obey Justice Department policy. And it is also true that Justice Department policy is that a sitting president cannot be indicted. But the regulations contemplate that a special counsel could, in appropriate circumstances, depart from Justice Department policy.
The regulations had to be written that way. Those of us who created them could not foresee all the possible permutations of law and facts that would unfold in the years to come. If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment.
Accordingly, the regulations permitted the special counsel to seek a departure from Justice Department policy, by going to the acting attorney general (in this case, Rod Rosenstein) and requesting it. The idea was that if responsibility for decision-making was vested in Justice Department leadership, decisions to protect the rule of law were more likely to be made. And as a safeguard against wrongdoing by Justice Department leadership, the regulations require transparency in the process: If the acting attorney general refuses a special counsel request, he must notify the majority and minority parties in Congress.
In this way, the regulations put a thumb on the scale in favor of having Mr. Mueller seek an indictment if he finds evidence of criminal wrongdoing by Mr. Trump. Unlike the Independent Counsel Act, a predecessor to the special counsel regulations that required the prosecutor to write a detailed final report to Congress, the regulations require only a substantive report when the acting attorney general overrules the special counsel. The acting attorney general is free to write one otherwise, but the only way Mr. Mueller can ensure such a report is written is to make a request that is overruled.
Thus the various pieces of the constitutional and regulatory scheme work together: If indictment is off the table, then impeachment must be on it; and (perhaps in a future setting) if impeachment is off the table because of nefarious congressional activity, then indictment must be on it. That is the genius of our system, and the only way to ensure we remain a government of laws which no one is above.
Katyal has, I think, identified the real issue here that has driven the Department of Justice guidance going back to 1973 on this issue: that indictment is off the table for actual criminal acts if Congress has deemed them to be high crimes and misdemeanors and begun impeachment. Since Congress had done that during both Watergate and as a result of the Whitewater Independent Counsel’s report, the prosecutors tasked with holding a sitting president accountable to the rule of law chose not to pick a fight they weren’t sure they would win, even if they believed they were right on both the constitutional and statutory legal issues.
Other than what is in the actual impeachment clause, the Constitution is actually silent on this issue. And the question of impeachment is always a political one. So the Founders and Framers are not silent on the political process for removing a president, which is impeachment. But impeachment is a political process for what any specific Congress decides is a political problem that equates to high crimes and misdemeanors, not a criminal process. And despite Hamilton’s Federalist paper on this topic, I find it very, very, very hard to believe that the Founders and Framers, who had been so concerned about the crimes committed by a sovereign that they revolted and then created a system of laws, not men, would create such a system with the intent that it placed the president above those laws.
We are, unfortunately, in uncharted territory. Largely because the Founders and Framers never believed that should a president commit significant crimes while in office, or commit them to obtain the presidency, that Congress would fail to do its constitutional duty, fail to deem these to be high crimes and misdemeanors, and impeach that president in the House and convict him in the Senate and thereby remove him from office. They did not make this explicit because they could not imagine they needed to. The Founders and the Framers could not and did not envision every problem that their fledgling nation would face and where they did not or could not, the Constitution itself, as a record of their guidance, is silent.* It could not be otherwise. But just because they were not explicit, because they did not think they needed to be, and, as a result, the Constitution really does not deal with actual criminal crimes committed by a president, as opposed to actions that include criminal crimes, that any given Congress decides are high crimes and misdemeanors, does not mean that the rule of law does not apply or any president is above the law.
Right now we have congressional majorities that by and large not only do not wish to deal with these issues, but are actively working to obscure them and direct attention away from them in an attempt to preserve their majorities and their power. To adapt my oft used phrase, the current Republican majorities in the House and the Senate are off the looking glass and through the map. The Founders and Framers did not provide guidance for what to do under these circumstances because they, themselves, could not envision these circumstances. If you had explained to them that a future Congress might fail to actually do its constitutional duties because of rank partisanship and the pursuit of power, they would have looked at you as if you were crazy. The idea itself was simply so far outside of their ken as to be incomprehensible. As a result we are in uncharted territory and anyone who tells you definitively that X will happen or Y won’t happen should be taken with an Adam sized grain of salt (that’s more like a salt boulder than a grain, but you get the idea).
My professional assessment is that Special Counsel Mueller is both an institutionalist and a honest broker when it comes to the pursuit of justice. That if he feels the pursuit of justice means that he must follow the existing Department of Justice guidance, then he will and if he feels that the pursuit of justice means that he needs to challenge them, then that is what he would do. In other words: I have no idea. And, to be honest, neither does anyone else that is not Special Counsel Mueller, members of his team, and possibly Deputy Attorney General Rosenstein. Special Counsel Mueller finds himself in that area that Neil Katyal described at the end of his op-ed about the rules he wrote for special counsels. A grey area where either impeachment must happen or indictments must happen in order to keep a president from being above the law or, perhaps, a law unto themselves.
Open thread!
* I’m not a lawyer, just a political scientist and criminologist by education, but this is one of the major reasons that I find the originalist argument of constitutional interpretation and law to be unconvincing. Moreover, President Jefferson put paid to this idea of originalism back in his letter to Samuel Kercheval in July 1816, which is also inscribed in really big letters on the southeast portico of the Jefferson Memorial in case Justices Alito, Gorsuch, and Thomas are having trouble finding his thoughts on this matter!
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.