No Immunity for Trump's Crimes

      Federal judges, members of Congress, and executive branch officials up to and including the vice president are all subject to criminal prosecution while in office even though they can also be removed from office through impeachment and conviction for "high crimes and misdemeanors." Nothing in the text of the Constitution or in historical practice suggests that any of these important federal officials can use their offices to claim special protection from being held accountable for violating criminal laws.
      Even so, the U.S. Justice Department has an official policy, dating from the Watergate scandal, that the president of the United States, is "uniquely immune" among federal officials to indictment or prosecution. That policy, elaborated in Office of Legal Counsel (OLC) memoranda that have never been tested in court, is now under fire in legal and academic circles as the evidence mounts that Donald J. Trump violated criminal laws as presidential candidate in 2016.
      The Justice Department first articulated this policy as it was also forcefully rejecting a plea for immunity by Vice President Spiro Agnew in fall 1973. The government filed a brief in federal court in the District of Columbia, signed by the then solicitor general Robert Bork, rebutting Agnew's claim that he could not be prosecuted while in office for taking bribes while governor of Maryland.
      Agnew bargained his way out of a full-blown criminal trial and likely prison time by agreeing to resign as vice president. A year later, President Gerald Ford cut justice even shorter by issuing a "full and complete" pardon to the disgraced former president Richard Nixon for all crimes he may have committed, including those proven beyond reasonable doubt in the impeachment inquiry that led to Nixon's resignation.
      The question now before a politically divided country is whether Donald Trump will evade justice for crimes he committed in his pursuit of the presidency. Trump's longtime attorney fixer, Michael Cohen, was given a three-year prison sentence last week [Dec. 12] after pleading guilty to among other offenses concealing his campaign-motivated hush-money payoffs to Trump's mistresses.
      Cohen told U.S. District Court Judge William Pauley II that he committed that crime "in coordination with and at the direction of" his presidential candidate client, Trump. Any candidate in the same situation other than the president likely would be headed to prison today just like Cohen.
      The most complete exposition of presidential immunity can be found in a 39-page OLC opinion published in October 2000 and signed by Randolph Moss as assistant attorney general and OLC director. Moss, appointed to the federal bench in the District of Columbia by President Obama in 2014, began his 2000 memorandum by citing and reconfirming OLC's positions on presidential immunity in 1973. Those positions "remain sound," he wrote. A criminal prosecution of the president, Moss wrote, "would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure."
      Despite the Justice Department's position, specially appointed prosecutors twice have stepped right up the line of bringing criminal charges against a sitting president. The Watergate grand jury named Nixon as an unindicted coconspirator in the Watergate cover-up at the behest of the special prosecutor Leon Jaworski. Nearly a quarter-century later, independent counsel Kenneth Starr asked for and received a report by a leading constitutional law scholar, Ronald Rotunda, contending that President Clinton could be indicted for lying to a grand jury about his relationship with the White House intern Monica Lewinsky.
      Starr instead routed his findings on Clinton to the Republican-controlled House Judiciary Committee. That decision resulted in the House's fiercely partisan decision to impeach Clinton on three counts. Nixon was forced to resign after senior Republican senators told him that he faced certain conviction. The Senate refused, voting along partisan lines, to convict Clinton. In hindsight, a wide range of legal experts and historians view the Clinton impeachment as partisan excess.
      Today, Trump views the entire investigation of his campaign as a partisan "witch hunt," but the crime laid out in federal court in Manhattan last week is both real and substantial: a deliberate circumvention of campaign disclosure laws to conceal important facts about Trump's conduct from voters in the crucial weeks before Election Day. In sentencing Cohen on Wednesday [Dec. 12], Pauley described his crimes as worthy of "substantial punishment."
      In comments afterward, the former U.S. solicitor general Neal Katyal argued that the Justice Department's long-held presidential immunity position cannot be extended to  Trump's campaign-time crimes: crimes committed for the very purpose of gaining the presidency. As Katyal noted, the Framers included the Impeachment Clause in part to guard against the risk that a would-be president would use corrupt means to secure the office itself. Immunity is Trump's "only card," Katyal said. And without indictment, an impeachment inquiry is inevitable.
      The Justice Department has rationalized presidential immunity on, among other grounds, the inevitable result that the president would be stigmatized, hamstrung, and distracted by a criminal prosecution. Surely, Trump today suffers from all those conditions with unadjudicated criminal charges hanging over him and tainting his presidency. As candidate, Trump boasted that he was above the law, that he could shoot someone on Fifth Avenue and never be held to account. As president, that boast must be rebutted — the inevitable difficulties notwithstanding — through indictment or impeachment.