Only President Trump seems not to have noticed — or at least refuses to acknowledge — that the US Attorney for the Southern District of New York, in his Dec. 7 memo regarding Michael Cohen’s sentencing, has laid the predicate for indicting the president for feloniously “directing” a scheme to defraud the public into voting for him under false pretenses.
Trump’s lawyers may well have advised him not to worry about that minor matter because the Justice Department policy of not indicting a sitting president will presumably be followed by all Justice Department prosecutors, including both special counsel Robert Mueller and the prosecutors of the Southern District.
But what nobody seems to have noticed is that the policy in question is probably unconstitutional.
Here’s why: Our Constitution’s framers were openly concerned with the possibility that a corrupt politician might contrive to win the presidency by treason, bribery, fraud, or other criminal means. They said so. And they were explicit about creating the impeachment power as the one and only means of removing such a criminal president. They opposed the imposition of criminal punishment through legislative trials, which accounts for the ban on bills of attainder at either the state or federal level. It also accounts for the specific language limiting the Senate’s power upon convicting an impeached officer to “removal from office” and “disqualification” to hold any future federal office — while leaving any such removed official “liable and subject to indictment, trial, judgment and punishment, according to law.”
Those who say this set-up presupposes delaying any indictment of a president for crimes committed in winning the presidency are wrong. Worse than that, they’ve gotten things upside-down.
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Just think about it: The president and vice president run as a ticket. No president selects a vice president who wouldn’t strongly consider doing for him exactly what Vice President Gerald Ford did for President Richard Nixon: namely, give the president a full pardon shortly after he becomes the former president — whether that sudden reversal of fortune occurs upon the president’s being turned out by the voters, or upon his being impeached and removed, or upon his resigning under the threat of such ignominious removal.
It’s crazy to assume that the framers of the impeachment power would have created a system in which even the most criminally corrupt president could permanently escape full accountability. Immunized from criminal trial while serving in office (as the ostensible Justice Department policy would require), such a president could count on receiving a get-out-of-jail-free card upon his exit. For he would leave behind him a newly minted (albeit unelected) president wielding the power to pardon any and all “offenses against the United States.”
To be sure, that new president, if proved to have struck a corrupt bargain with the former president in exchange for his own ascendancy, could be impeached and removed for that bribery, but the president who had criminally put the duo into power — and who had put himself in a position to do untold damage to the nation while wielding the powers of commander in chief and of chief executive — would be free to return to private life, his riches perhaps enhanced in the interim by his use of the highest office in the land to receive unconstitutional emoluments from foreign powers.
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Such a bailout by the person who would owe his or her sudden presidency to the ousted president would be constitutionally unthinkable. It would mean that someone who had disgraced the nation’s highest office and had accordingly been forever disqualified from holding “any office of honor, trust or profit under the United States” could nonetheless forever escape the legal accountability that Article I, Section 3, Clause 7 expressly says is to remain available.
Others have argued that the Department of Justice “policy” against indicting a sitting president was never unambiguously established, did not in any event have the force of law, and rested on the odd theory that a sitting president is just too busy to meet the demands of an ordinary criminal trial but not too busy to stand trial in the US Senate on impeachment charges.
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All that is true. But there is more: What my analysis adds is the basic point that no such policy could possibly be squared with the Constitution. For any attorney general to signal to subordinates that they cannot pursue the indictment and criminal prosecution of a sitting president, regardless of the evidence against him, would subvert the way our Constitution makes good on the promise that, under our system of government and indeed in any constitutional democracy, no one is above the law.
Laurence H. Tribe, university professor and professor of constitutional law at Harvard Law School, is coauthor, most recently, of “To End a Presidency: The Power of Impeachment”
with Joshua Matz. Follow him on Twitter @tribelaw.