The DOJ Office of Legal Counsel Rule Against Indicting Sitting Presidents Is Unconstitutional
Despite finding and detailing solid grounds for indicting President Trump on obstruction of justice, Special Counsel Robert Mueller decided to follow the rule of the Department of Justice’s Office of Legal Counsel, asserting that sitting presidents cannot be indicted, since doing so would unconstitutionally intrude on and distract sitting presidents from their duties. Unfortunately for the nation, that DOJ rule is itself unconstitutional by violating the principle of “checks and balances”. That DOJ rule actually eliminates one of the most important “checks” on the executive, i.e., the check of the judiciary. That DOJ rule therefore constitutes a serious danger for the nation, and must be rescinded. Immediately.
The rationale that indicting sitting presidents is unconstitutional because it would unduly intrude on or distract sitting presidents from their duties is patently fallacious and specious. In fact, indicting a sitting president is no more intrusive or distracting than impeaching. Since impeachment of a sitting president is constitutional, indictment of a sitting president must also be constitutional. It is scandalous that the DOJ rule against indicting sitting presidents has not been rescinded long ago. Those creating and backing the rule to eliminate judicial checks on the executive branch are either third-rate constitutionalists or covert proponents of largely untrammeled executive power and of defending criminal sitting presidents. It is no coincidence that the…………D……………against……………..….., obviously at…………………….….., with…………! Incredibly, …. yet…….fact, ….. vitiates………., ……..with the clear………………a……….t,….n. (N.B. This partial redaction will be unredacted at the appropriate time in coming weeks or months.)
The fact that the Constitution specifically provides for impeachment (Article II, Section 4) and not specifically for indictment of sitting presidents, does not mean indictment of sitting presidents is constitutionally excluded. In fact, impeachment and indictment are complementary, consisting of different procedures and different legal requirements, including different thresholds for determining guilt in criminal cases. And, impeachment also applies to non-criminal cases, such as incompetence and incapacity. The Constitution clearly provides for two checks on the executive branch, not one. In the case of a criminal president backed by a servile, corrupt, or incompetent Senate or House majority, removal from office would be precluded if impeachment were the only tool. The need for an alternative check on the executive, entirely separate from the Congress, should be obvious to everyone. That alternative check consists of the judiciary, an independent judiciary.
The Congress must immediately address the issue of the unconstitutionality of the DOJ Office of Legal Counsel rule prohibiting the indictment of sitting presidents. Not to do so would be the height of incompetence, and a grave disservice to the nation and to democracy itself. Furthermore, attorneys general should be required to recuse themselves from all matters connected with the presidents who appointed them, in order to avoid even the semblance of a conflict of interest. The judiciary, to properly fulfill its constitutional role, must be fully independent, not directed by the president. Presidents who attempt to influence specific cases are committing abuse of power and in some cases obstruction of justice, particularly when a conflict of interest is involved.
© Edward Sonnino 2019
May 13, 2019
