Absolutely, Sitting Presidents Can Be Indicted!
Many are questioning whether sitting American presidents can be validly, constitutionally indicted, their thinking being that presidents can only be impeached, for the following two reasons. The first one being that there is no explicit provision in the Constitution for indicting a president. The second one being that an indictment would distract presidents from their constitutional duties. Both of those arguments against the valid constitutionality of indicting a sitting president are deeply flawed. (Those who assert presidents cannot be indicted are probably biased in favor of broad presidential powers, particularly when a president of their liking is in power. They are also poor legal thinkers, at least concerning constitutional matters.)
The first thing to keep in mind is that the Constitution is a highly moral document, with the guiding principle and goal of good, fair, and legal government. The very fact that the Constitution specifies that a president may be impeached for “high crimes and misdemeanors” shows beyond any doubt that the Constitution’s intent is not to protect a president who commits crimes, even minor ones. Clearly, the Constitution’s intent is not to ensure a president’s impunity. To assert the contrary is absurd and goes against the spirit and guiding principles of the Constitution.
The fact that the Constitution explicitly institutes the procedure of impeachment does not logically entail that the Constitution excludes a president from being indicted! By any rational and consistent reading, the Constitution allows for both impeachment and indictment of sitting presidents. Why would the Constitution validate both measures? For five logical reasons. First, the necessity of ensuring as best possible that a president committing crimes will be punished and removed from office. That means having two different bodies independently capable of punishing a criminal president. Second, the standard of proof required for a successful prosecution of a criminal indictment is much higher than the standard of proof required for impeachment, which is a political measure, not a judicial measure. Third, as opposed to “high crimes”, misdemeanors are minor legal violations judicially punishable by fines, not imprisonment, and therefore would not result in judicial removal from office. Removal from office due to misdemeanors can only occur through impeachment. But judicial convictions for misdemeanors can spark impeachment proceedings resulting in removal from office. Fourth, impeachment, being a political measure, can only lead to removal from office, leaving normal judicial proceedings to deal with criminal and civil penalties. What would be the logic of shielding presidents from judicial prosecution and sanctions during their terms? Fifth, to avoid having criminal presidents escape removal from office thanks to protection by a Senate and House dominated by their own party.
The argument that since the Constitution does not explicitly provide for indicting sitting presidents, therefore indicting presidents is unconstitutional, is completely illogical. Logically, the constitutional validity of indicting a president is taken for granted by the Constitution, and consequently there is no reason for it to explicitly specify that validity. Importantly, the Constitution does not explicitly exclude indicting a sitting president. Why would the Constitution, which clearly intends for presidents not to commit crimes with impunity, rationally exclude the normal way for prosecuting criminals?
The other argument against the constitutional validity of indicting sitting presidents, is that it would distract them from their duties of leading the nation. That is an overtly spurious argument, since impeachment proceedings are no less distracting than criminal proceedings.
It is very strange and disquieting that so many legal scholars and practitioners fail to correctly interpret and understand the Constitution, particularly in matters of presidential powers where they argue such powers are practically unlimited. Such an attitude probably derives from a conscious or subconscious predisposition towards authoritarianism.
The presidential pardon power is clearly not unlimited: in accordance with the Constitution’s high moral principles, a pardon is constitutionally invalid 1) when it is granted to obstruct justice; 2) when it is granted in exchange for money or favors; 3) whenever there is a conflict of interest (such as pardons for family members, friends, associates, etc.). Presidents can obviously not pardon themselves, the conflict of interest being overt and indisputable. Ford’s pardon of Nixon is invalid because of conflict of interest, as is Clinton’s pardon of Marc Rich (because of his large contribution to the Clinton Foundation). Invalid pardons should result in severe sanctions for presidents granting them, in order to discourage future presidential abuses which inevitably undermine public confidence in our government. If Trump were found guilty of a crime and removed from office, a pardon by Pence would be invalid due to conflict of interest (his personal and professional association with Trump). Pardons, to be valid, must be totally free of conflict of interest and justified by highly moral considerations publicly spelled out in detail.
In accordance with the Constitution’s high moral principles, the presidential emergency power is unconstitutional when invoked for false pretenses or when not clearly and unambiguously backed by the facts.
In accordance with the Constitution’s high moral principles, presidential executive privilege is not constitutionally valid when used to obstruct justice, to shield a president from prosecution or impeachment.
Similarly, an attorney general cannot impede or limit a judicial investigation or proceeding when that would obstruct justice. Nor can an attorney general validly redact or limit the publication of a judicial finding when that would result in obstruction of justice. Nor can attorneys general prevent congressional oversight of their conduct or prevent Congress from obtaining full documentation of investigations and proceedings. Attorneys general must always enforce the law, and any attempt to interfere with legal proceedings must be clearly justified and not have any political consideration. An attorney general, charged with enforcing the laws of the nation without any bias, personal or political, who improperly interferes with judicial investigations and proceedings is obstructing justice and must be prosecuted for committing a particularly outrageous crime. It should be obvious to all that attorneys general, just like presidents, are not omnipotent, cannot engage in obstruction of justice, and are not immune from prosecution. If they follow a president’s illegal order, they are guilty. “Just following orders” is not a valid defense. An attorney general receiving an illegal order from a president should resign, not implement it. The claim that an attorney general has the discretionary power to limit the Mueller investigation or limit its publication is patently false, the product of authoritarian minds who want to shield Trump from judicial investigation and actually propound violating the Constitution for that purpose.
© Edward Sonnino 2019
January 14, 2019
