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Indicting a President

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I begin with two premises:

1)      When Robert Mueller’s investigation is completed, he will likely have uncovered the largest set of scandals and criminal wrong-doing to besmirch any presidency in American history.

2)      If that proves to be the case, it will be essential for the long-run health and integrity of the American political system that Donald Trump be held accountable.

From those premises, I draw the conclusion that there’s a good chance Robert Mueller will indict a sitting President.

Here’s how I get there:

There is a previous occasion when a Special Prosecutor, investigating a sitting president, found extensive and persuasive evidence that the President had committed crimes. That prosecutor refrained from indicting that president.

(I’m referring to Special Prosecutor Leon Jaworski’s decision – during Watergate — not to indict President Richard Nixon. Instead, he handed his report to Congress, relying on that body to do what needed to be done.)

But what was right during the Watergate crisis is not necessarily right in the circumstance that Mueller finds himself in, with this Trump/Russia investigation.

And Mueller does have a choice.

No president has ever been indicted. But that is not because it has been conclusively established that it’s forbidden to do it. In fact, both Jaworski and Kenneth Starr (the Special Prosecutor in the case of President Clinton) were given memoranda prepared by their own teams advising that indicting a sitting President is allowable.

The Constitution does not speak to the issue of a president’s indictability, and the courts have never spoken to it either. Therefore, Robert Mueller is free to make a choice.

The question then arises: why should Robert Mueller, in the case of Trump today, make a different decision from the one Jaworski made in the case of Nixon? (Especially given that Jaworski looks good through the lens of history.)

The answer is that Mueller, unlike Jaworski, has every reason to believe that Congress would fail to hold Trump accountable.

It is not just that, unlike in the Watergate period, the Congress is controlled by the same Party as the President, though that surely is a factor. More than that, today’s Republican Party is unlike any major political party in American history, having repeatedly shown itself altogether unrestrained by principle or patriotism – or the rule of law — in its pursuit of partisan advantage.

Judging from the way the Republicans have acted at almost every turn, it seems a safe bet that even if the Democrats were to take control of the House in the 2018 elections, there would be more than enough Republicans in the Senate — where it takes a 2/3 vote to convict — to protect Trump from being held accountable for whatever set of criminal and scandalous conduct Mueller had uncovered.

Two presidential scandals — more than forty years apart, during which time the balance of power in the political environment has shifted strongly toward brokenness.

Therefore, because I believe in Mueller’s integrity and strategic intelligence; and because I expect that Mueller would agree with my second premise — i.e. that long-term damage would be done to the American system if Trump can commit crimes and not be held accountable — I also believe there is a good chance that Mueller will decide that the present situation calls for him – acting as an American patriot — to break precedent and do all he can to use the courts to bring this President before the bar of judgment.

 

  • Jim B

    I wonder if indicting Trump would be enough to stop the evil people around Trump from destroying the country?

    • Andy Schmookler

      The issue of Trump, and whether or not to indict or impeach or 25th amendmentize him– that is but part of a much larger battle. Trump is central to the drama now, but he still must be seen as a symptom of a much more widespread rot on the right.

      He only won because of the ugly thing the Republicans turned their base into.

      And if that isn’t sign enough that Trump is but a part of the beast, one need only take a look at this “tax reform” monstrosity– a measure so gross it’s hard to believe that an American political party could calculate that it is in its own amoral political interest to pull off this reverse-Robin-Hood deal right out in the open, appeasing the donors while somehow not losing all the people they’re screwing.

      The rot is widespread, even if focused on the man who commands the bully pulpit and who gets to launch a nuclear war. And at present, that rot is in control across all three branches of the government of the United States.

      No doubt, the battle will do damage. But if we are wise it will be more like the damage of good surgery and less like the transmission of the same kind of poison that led to the Civil War into the future even after that war was concluded.

      If Trump gets away with all of what I suspect we will soon know that he’s done, that in itself would go a long way to destroying the country that our founders passed along to us with the Constitution and the commitment to the rule of law.

      • Jim B

        Thanks. Not exactly comforting to think we will not get out the woods until hopefully we can elect a democratic congress next year and democratic president.

        • Andy Schmookler

          It took us a generation to degenerate to this point. What takes a generation to rise up, and infiltrate itself into the culture –into the political power system, the corporate system, the consciousness of the people — will not be extirpated over night.

          The crisis that is coming to a head over Trump runs as deep as did the brokenness surrounding the Civil War. This is not a small thing, and it will test our mettle whether we have what it takes to meet this challenge.

          That news may not be comforting, if one has not seen how darkness was gaining ground lo these many years.

          But it should be comforting at least to a degree to see how the sight of this all-too-blatant ugliness has galvanized so many people; to see how the wake-up call that was the election of Donald Trump to the presidency has fostered an uprising (a Resistance), an energy that served a few weeks ago to deliver to the Democratic candidates a victory whose sweep surprised even most of the optimists.

          To paraphrase Churchill’s words when the tide of battle began to turn toward the Allies in World War II. This is not the end, Churchill said. It is not even the beginning of the end. But it may be the end of the beginning.