Mueller: The Correct Move Would Have Been Finding the DOJ Rule Against Indicting Sitting Presidents Unconstitutional and Illegitimate, and Indicting Trump
Special CounselRobert Mueller is an outstanding moral individual, a patriot, and an excellent prosecutor and investigator, with a long career in the FBI. But he is not a constitutional law scholar or expert. As a result, he has passively accepted the validity of the “longstanding” DOJ Office of Legal Counsel policy/rule/opinion which posits that it is illegal to indict a sitting president. Attorney General Barr reminded him of the rule, no doubt with a heavy hand, to the point that Mueller not only deferred to him but went beyond obeying the rule, explicitly volunteering that the rule conclusively establishes the unconstitutionality of indicting sitting presidents. The entire legal profession and the press have followed suit, without raising the slightest question or objection. The DOJ rule is considered settled law by everyone.
But, since when is a DOJ policy, rule, or opinion a definitive judicial determination on constitutionality/unconstitutionality? Only courts make legal determinations, and the Supreme Court has the final say on questions of constitutionality! Barr knows full well that the DOJ rule is not valid, even fraudulent, but being the sharpest and slyest lawyer in the country and wanting to protect President Trump for some strange reason, he has managed to intentionally deceive the American people and effectively obstruct justice. The great mystery is why no lawyers in our nation realize that the DOJ rule is patently illegitimate and fraudulent. There is hard, unassailable documentary evidence proving that. Evidently no one is aware of its existence.
The Office of Legal Counsel cites many cases to justify the validity of its rule/policy/opinion, but those cases are actually irrelevant or inapposite. Furthermore, the DOJ citing cases is not the equivalent of a federal appeals judge citing cases, let alone the Supreme Court citing cases. The DOJ’s citations have no judicial weight. Its rule against indicting sitting presidents would surely be declared unconstitutional by any impartial Supreme Court. The rule has never come before the Supreme Court for adjudication. Why? Because until Trump we never needed to have its constitutionality examined. We do now. The important point to focus on is the rationale for the rule, which is that indicting a sitting president would unduly interfere with a president’s duties to lead the nation. That rationale is patently specious since impeachment is constitutional, and no less destabilizing to a sitting president than indictment.
Another argument made by those asserting that indicting sitting presidents is unconstitutional is that the Constitution does not explicitly provide for indicting them, whereas it explicitly provides for impeaching them. This argument is also specious. Impeachment is explicitly provided for because it applies also to non-criminal cases, and because it conveys a power to the Congress which does not exist anywhere else in the Constitution. Whereas the judicial system is explicitly dealt with in another part of the Constitution, and it implicitly applies to all Americans, even presidents, since presidents are not above the law. It would have been redundant to state the obvious.
The Constitution clearly intends for there to be two checks on the president, not one. Congress and the judiciary. Why? For various reasons. First, the Senate might be beholden to a president and never vote for removal from office, even if the president commits treason or murder or is involved in corruption. That would leave only the judiciary to protect the nation from a criminal president. Second, incompetence or scandalous behavior by the president could warrant removal from office even if it did not amount to a crime, in which case only impeachment would be applicable, not indictment. The same applies to cases of mental illness or other incapacity. Clearly, impeachment and indictment are complementary procedures for removing dangerous, criminal, treasonous, disgraceful, corrupt, dishonest, incompetent, or incapacitated presidents. There is an absolute need for both.
The press has been instrumental for uncovering or publicly exposing scandals in the past. Just to mention two, the Pentagon Papers and Watergate. Here, in the case of the DOJ rule against indicting sitting presidents, it has dropped the ball. It actually hasn’t even tried. It has passively accepted and never questioned the opinion of the DOJ and Barr. That is very strange, considering that much of the press is convinced that our sitting president is a danger for the nation’s security. Also for democracy and human rights, not just at home but even around the world. One would think the press would be turning over every rock, but so far it hasn’t lifted a finger, or followed any leads. Hopefully, that will change before it’s too late, since the press is our last hope, given that the legal profession shows no sign it’s capable of coming to the rescue.
Everyone must soon finally realize that the DOJ rule against indicting sitting presidents is transparently corrupt. Its obvious sole purpose is to protect criminal presidents. Its intent is to obstruct justice. Special Counsel Mueller should have realized the rule is unconstitutional and illegitimate. He should have publicly declared it invalid with careful reasoning, then recommended indicting President Trump. He should have added that any federal prosecutor could independently proceed to indicting the president, backed by his report’s amply sufficient evidence, and that any effort to block the indictment -even by the attorney general- would be an obstruction of justice. It’s not too late for a federal prosecutor with courage and conviction to take the initiative, for the great benefit of the nation. It is very important to determine whether Trump is guilty of obstruction of justice and other crimes. Even more important is to finally have a definitive finding that the DOJ rule against indicting sitting presidents is illegitimate and unconstitutional, an existential threat to our democracy. That will happen soon, as shocking, compelling evidence is publicly revealed on the DOJ rule’s fraudulence and illegitimacy.
© Edward Sonnino 2019
June 3, 2019