As the Mueller investigation draws to a close, many
political observers and legal analysts point to the increasing likelihood that
President Trump will be implicated in criminal wrongdoing. Mr. Trump is not
only threatened by the Russia probe but also the separate federal investigation
by the Southern District of New York that recently led to the conviction of
Michael Cohen. If investigators find evidence that the president committed
crimes, it will trigger not but a series of constitutional crises.
As Erick
Erickson pointed out earlier this week, “Republicans have gone mostly
quiet, and their deflections are half-hearted and coupled with ‘but Hillary’
cries. This behavior is a pretty big red flag that everyone now knows Mueller
has something and it is not good for the President and possibly for other
members of his family.”
While the “something” that Mueller has may not be illegal Russian
collusion, it is becoming more and more obvious that investigators do have something
serious on the president. As Judge Andrew Napolitano said on Fox
News after Cohen’s sentencing, “Career prosecutors here in New York have
evidence that the president of the United States committed a felony by ordering
and paying Michael Cohen to break the law. How do we know that? They told that
to the federal judge. Under the rules, they can’t tell that to the federal
judge unless they actually have that hardcore evidence. Under the rules, they
can’t tell that to the federal judge unless they intend to do something with
that evidence.”
While Napolitano said that the felony is that Trump paid Cohen
to commit a felony, there are a host of other possible charges that the
president could potentially face. These range from obstruction of justice to
lying to the FBI. There is also the possibility that the investigations could
have uncovered illegal acts committed by Mr. Trump before he became president. The
Cohen investigation could have implicated Trump in anything from tax fraud to
money laundering.
An accusation by
prosecutors that President Trump committed a felony would trigger not one but
several constitutional crises. The most obvious crisis would be whether a
sitting president can be indicted. The current opinion of the Department
of Justice is, “The indictment or criminal prosecution of a sitting
President would unconstitutionally undermine the capacity of the executive
branch to perform its constitutionally assigned functions.”
The DOJ is concerned that malicious indictments of the
president by rogue US attorneys or states could be used to subvert the will of
the people. If you think this scenario is not possible, think again. It was
only 10 years ago that prosecutors
illegally hid evidence in the corruption trial of Senator Ted Stevens
(R-Alaska). Stevens’ conviction was overturned and two prosecutors were
suspended but only after Stevens had lost his Senate seat.
On the other side of the issue is the statute of limitations.
The statute of limitations limits how long after a crime that the perpetrator
can be prosecuted. Some crimes, such as murder, have no statute of limitations. In the case of most federal crimes, the statute
of limitations is five years. If President Trump is elected to a second
term, the statute of limitations for offenses committed early in his administration
would expire before he leaves office. This would effectively mean that the
president could not be prosecuted if he committed nonviolent crimes in 2017.
It should be apparent to any student of American history and
the Constitution that the framers did not intend that the president should be above
the law and immune from prosecution. So, what is the remedy for criminal acts
by a sitting president?
Most would argue that impeachment is the answer. Under this
view, Congress would impeach the president and then he could be indicted in the
court system. This theory has problems as well, especially in the case of Donald
Trump.
The Constitution says that grounds for impeachment include “Treason,
Bribery, or other high Crimes and Misdemeanors,” but does not define these
terms. A 2015 report by the Congressional
Research Service found that impeachable offenses don’t have to be criminal
acts and not all criminal acts are impeachable offenses. Impeachable offenses
would fall into three broad categories:
·
Exceeding or Abusing the Powers of the Office
·
Behavior Incompatible with the Function and
Purpose of the Office
·
Misuse of Office for Improper Purpose or for
Personal Gain
With respect to the current situation, another constitutional
crisis would be fomented if President Trump was found to have committed crimes
before becoming president. The question would be whether the president could be
impeached for crimes committed before he took office. This question would be especially
relevant if the statute of limitations for
these crimes would expire before the president leaves office.
Many experts argue that impeachment should be limited to
crimes committed while in office. The problem is that this could prevent the
president from being prosecuted for crimes he committed before becoming
president.
The CRS report indicates that there is precedent for impeaching officials for crimes
committed before they took office. US Circuit Court Judge Robert Archibald was
impeached in 1912 based on articles of impeachment that included acts committed
in his prior position as a district judge. More recently, in 2010 US District
Court Judge Thomas Porteous was impeached in part for acts committed before he
held any federal office. These included misconduct as a state judge as well as
lying to the FBI and Senate during his
confirmation as a federal judge. The charges against both men also included acts
related to their current office. No one has ever been impeached solely on the basis
of acts committed prior to holding office.
There is also precedent for impeachment after an official
has left office. In 1876, Secretary of War William Belknap resigned two hours
before the House impeached him. In his Senate trial, Belknap argued that he was
a private citizen and therefore not under the Senate’s jurisdiction. The Senate
voted to affirm jurisdiction over Belknap but ultimately acquitted him of the
charges against him.
Impeachment is almost certainly out of the question as long
as Republicans control the Senate, which they will until the end of Trump’s first
term. This leads to a third constitutional conundrum. In today’s hyper-partisan
environment, evidence of a very serious crime would have to be overwhelming for
the president’s own party to vote to remove him from office. If there is no chance
of removing Trump from office, there would be little point in House Democrats
impeaching him. In the end, we may be left with a scenario in which Trump is
accused of felonies by prosecutors who are prohibited by from indicting him. In
Congress, Democrats consider impeachment but Republicans circle the wagons
around the president and refuse to join the effort, arguing, “What about Hillary?”
With the clock on the statute of limitations ticking and the impeachment effort
stalled, Donald Trump could effectively use the office of president as a shield
from prosecution.
The intent of the Founders was clearly not to have a presidency
that is above the law. Having just fought a war to liberate themselves from a
system in which the king had unchecked power, this would have been the last
thing that they would have wanted, but that is the possibility with which we
are confronted.
The current crisis was foreseen by John Adams, who warned, “Avarice,
ambition, revenge, and licentiousness
would break the strongest cords of our Constitution, as a whale goes through a
net. Our Constitution was made only for a moral and religious people. It is
wholly inadequate to the government of any other.”
The best defense against a president using the office to
shield himself from prosecution is for the parties to nominate people of good
character and morals as their candidates and for voters to send trustworthy
candidates to the White House. On that score, the country was in trouble
regardless of the outcome of the 2016 election.
Originally published
on The
Resurgent
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