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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.