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.