Trump Is Above The Law, For Now -- But Not The People

05/17/2017 05:02 am ET Updated May 17, 2017

A sitting president is almost certainly immune from criminal prosecution, and the only mechanisms to remove him from office — impeachment, the 25th Amendment, or voting him out the old-fashioned way — are political, not legal, procedures.

In that sense, the president of the United States really is above the law, at least while he remains in office.

Trump’s impulsive and unprecedented firing of FBI Director James Comey last week set off alarm bells throughout official Washington, from Capitol Hill to the Bureau itself. Even some Republican senators expressed concern, and pro-Trump FBI agents were said to be “horrified and furious” at Comey’s defenestration. Trump didn’t even have the decency to fire the director in person; Comey only learned of his dismissal as the news flashed across TV screens while he met with FBI agents in Los Angeles. One agent told Vanity Fair, “It shows us, the career people who care only about justice, that there is no justice at the top.”

Vox put it starkly: “The president of the United States, whose campaign is under FBI investigation over its potential ties to Russia, just fired the head of the FBI—the person in charge of that very investigation.” On Saturday, Harvard Law professor Laurence Tribe explained why Trump must be impeached for obstruction of justice, to say nothing of additional “high crimes and misdemeanors.” Veteran journalist James Fallows has laid out five reasons the Comey affair is “Worse Than Watergate.”

Trump’s primal instinct to exploit weakness and dominate regardless of political norms or ethical boundaries may one day result in his political doom. It is possible that the fallout from Comey’s firing, the shocking report that Trump revealed highly classified information to Russian officials, and further developments in the Russia investigation might manage to cut through the current level of hyperpartisan ambient noise and maybe even penetrate the right-wing news cocoon.

But Trump almost certainly will not face the prospect of criminal indictment so long as he is president. Although this is technically an open question because the courts have never directly ruled on whether a sitting president can be subject to criminal prosecution, there is historical and scholarly consensus on the side of immunity.

Of course, the law certainly constrains a president’s official acts as president, as we saw when federal courts enjoined almost immediately Trump’s attempted Muslim ban via executive order. And in Clinton v. Jones (1997), the Supreme Court held that the Constitution does not protect a sitting president from civil litigation involving actions committed before he entered office.

At any rate, Trump is insulated from criminal prosecution as a practical matter, too, because any decision to file charges would have to come from his hand-picked henchman, Attorney General Jeff Sessions. And although Trump could be subject to criminal prosecution after he is out of office, The Wall Street Journal recently explored even the possibility that a president has the legal authority to pardon himself, which is just the thing Trump would do if it came to that.

So those who see indications of treasonous, criminal wrongdoing and blinking red warning signs of creeping authoritarianism in Trump’s America had better quickly realize that the political process is our only recourse. Fans of The Onion might think of this proposition a little more colorfully: America f*cked its way into this mess, and it better f*ck its way out.

The takeaway is simple: only if or when the political will exists to uphold the rule of law—and Congress actually gets the memo—will Trump be held to account.

In other words, Americans’ sole remedy to counter the threat of Trump between now and the 2018 election is to exert maximum political pressure on members of Congress, perhaps armed only with the kind of damning revelations government officials have been leaking to the media. These leaks themselves are likely illegal, but desperate times call for desperate measures.

So far, most congressional Republicans seem to be more offended by government leaks about Trump’s possible collusion with Russia than by Trump’s possible collusion with Russia. At a House Intelligence Committee hearing in March, Republican members seemed preoccupied with questions of how reports of contacts between then-national security advisor designee Michael Flynn and Russia’s ambassador were leaked to the Washington Post. Last week, House Speaker Paul Ryan took 24 hours before reacting to the Comey firing, then told Fox News that Trump was well within his authority to remove the director. Senate Majority Leader Mitch McConnell greeted the news as business as usual, then blasted Democrats for voicing alarm.

If Trump’s blatant and continued disregard for the rule of law does not compel Republicans to put country over party, America’s future may soon hinge on whether enough voters are sufficiently outraged to hand the Democrats control of Congress in 2018.

A GOVERNMENT BY LAWS AND NOT BY MEN

In America we celebrate the genius of our political system and proudly point to the rule of law as our democratic North Star. In 1960, Austrian economist, political theorist, and Nobel Laureate Friedrich Hayek published “The Origins of the Rule of Law,” which would become the twentieth century’s authoritative writing on the topic. Hayek traces to Aristotle the concept of separation of powers and superiority of law as essential features of a free state. Moreover, he credits Aristotle with fashioning the language of a “government by laws and not by men.” Over 2,000 years later, in the dawn of the American republic, John Adams famously enshrined similar words in the Massachusetts constitution.

But it turns out this favorite phrase carries an unseen asterisk; under the principle of separation of powers and the prevailing theory of the unitary executive, a sitting president is uniquely immune from indictment and criminal prosecution. The Department of Justice explained as much in a 1973 memo, and reiterated it in 2000. The judiciary, for its part, has not contested the idea, though admittedly there has been no real test case in which substantial evidence of a president’s personal criminal wrongdoing existed in the absence of impeachment proceedings in Congress.

Trump’s moral bankruptcy and mental instability notwithstanding, there are some good reasons for presidential immunity from prosecution.

First, the office of the presidency really is unique in that all of the power of the executive branch is vested in a single person. In The Federalist No. 70, Alexander Hamilton argued that a unitary executive is necessary to ensure accountability in government, to give the president the power to defend against encroachments by the legislative branch, and to ensure “energy” in the executive. The purpose, direction, and flexibility in a single executive are critical in times of emergency and war, Hamilton maintained.

The other branches are far different. Congress has 535 members, while the judiciary is made up of still hundreds more Article III federal judges. Even in virtually all state governments the executive is divided, as governors share power with independently elected constitutional officers.

Therefore, the thinking goes, if a sitting president could be criminally prosecuted—and potentially thrown in jail—he would be hard-pressed to fully execute the duties of his office. The government and the nation might suffer as a result.

Second, the president is national in that he represents all Americans. The principles of federalism dictate that no single state is permitted to hobble the federal executive of the entire national government. One need only consider America’s first attempt at a governing document, the feckless Articles of Confederation, and the later period in American history leading up to the Civil War—during which “nullification” was the rallying cry of southern slave states—to appreciate why this makes good sense.

Finally, the separation of powers doctrine prevents the judiciary from holding the entire executive branch at its mercy. Courts that could personally prosecute the president would enjoy inordinate power over the executive. Moreover, the Constitution explicitly bestows on Congress—not the judiciary—the power to try the president for criminal wrongdoing in the case of impeachment.

WHERE THERE IS NO WILL, THERE IS NO WAY

A sitting president who is above the law when it comes to criminal prosecution is constrained only by raw, political reality. Unless or until there is political will in Congress to check the executive, there is no way to hold him accountable.

As for Trump’s personal behavior while in office, civic norms, criminal statutes, and even the plain language of the Constitution are insufficient to constrain him. During the 2016 campaign and since, Trump has flouted important, longstanding norms, from his anti-Mexican and anti-Muslim demagoguery to his public encouragement of Russian hacks into Hillary Clinton’s emails to his rejection of the U.S. intelligence community’s assessment of Russia’s involvement. Trump has ignored virtually all conflict of interest guidelines that strongly suggested he should release his tax returns and divest himself of stocks and other assets. Since the moment he took office, Trump has almost certainly been in violation of the Emoluments Clause in Article I, Section 9 of the U.S. Constitution.

Trump’s firing of Comey represents his most audacious and troubling breach of norms to date. Lawfare’s Benjamin Wittes and Susan Hennessey wrote, “While the President has legal authority to fire an FBI director, the fact that Trump has done so under circumstances of an active FBI investigation of the President’s own campaign violates profoundly important norms of an independent, non-political FBI.”

Trump acted improperly with Comey before and after the firing, too. Just a week into his presidency, he summoned Comey to a one-on-one dinner at the White House, at which he asked the FBI director to pledge his loyalty to him. Comey declined, offering only “honesty.” Last Friday, Trump took to Twitter to threaten the man he had just fired, warning: “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press.”

As if on cue, the latest shoe to drop was the revelation that Trump asked Comey to shut down the FBI investigation into former national security advisor Michael Flynn during a private Oval Office meeting in February. Comey detailed the conversation in a memo immediately after the meeting, which took place the day after Flynn resigned. In a rare gesture of Congressional prerogative, Rep. Jason Chaffetz (UT), the Republican chairman of the House Oversight Committee, requested the FBI provide all “memoranda, notes, summaries and recordings” of conversations between Trump and Comey. Chaffetz, who has announced he is stepping down from Congress, also suggested he would subpoena the materials if necessary.

SO…WHAT NOW?

By most indications, even with the director’s removal, the FBI’s investigation into Trump’s business ties with Russia and his possible collusion with the Putin government during the 2016 campaign will continue unabated. Acting FBI director Andrew McCabe testified to the Senate last week, “There has been no effort to impede our investigation to date.” A former FBI cybercrimes investigator predicted the Russia investigation will continue, explaining that the inquiry is conducted at lower levels anyway. “There’s a case agent or a series of case agents assigned to run it all the way through.” Another FBI veteran summed it up: “Yes, it matters who is the director. But investigations don’t just go away.”

Meanwhile, there is a growing chorus of calls for the Justice Department to appoint an independent special counsel to investigate Trump and his associates, free of the chain of command of Trump loyalists (which, presumably, will soon include a new FBI director). But any appointment of a special counsel would have to come from those same loyalists at DOJ, and so far there is little indication that Attorney General Sessions or his deputy, Rod Rosenstein, intend to do so.

By now, nobody should underestimate Trump’s shameless, insatiable appetite for power. As Howard Fineman observes, “Trump believes deeply in his own power to ‘win’ any struggle through intimidation and fear. His superpower is his uncanny ability to sense weakness. He kicks down rotted doors.”

In his real estate dealings, Trump exploited owners of distressed properties and those who could not match the firepower of his army of lawyers. In politics, Trump has similarly exploited dissension on both the right and the left, as well as voters’ distrust of crucial institutions, from government and the intelligence community to the political parties and, most of all, the media. As Politico noted, “The upside of convincing your supporters that the media will say anything to take you down is total inoculation against just about any allegation imaginable. And the president’s apparent anti-fragility means that each successive episode digs his boosters in further, validating the ‘fake news’ narrative and eroding whatever remaining standing legacy institutions may still have.”

In short, Trump has capitalized on the general unraveling of civil society at a time when globalization, the threat of terrorism, the global financial crash, and sweeping demographic and political change have created a fountainhead of fear, uncertainty, and doubt across the country. And this phenomenon is not limited to America; indeed, Trump’s rise is consistent with a wave of authoritarian populists who have ascended to prominence in several Western democracies.

THE LEGAL UNDERPINNINGS FOR A POLITICAL REMEDY: HOW TRUMP OBSTRUCTED JUSTICE

Absent a criminal prosecution, it is high time to start asking what legal underpinnings the political process of impeachment might entail. Trump’s reckless firing of Comey—and his own galling admission that he did so because of the Russia investigation—gives us good reason for an adverse inference into what Trump fears the FBI may uncover.

Obstruction of justice is a felony federal offense under 18 U.S.C. § 1505. The statute is violated by anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States . . . .”

Laurence Tribe argues that regardless of what the Russia investigation uncovers, Trump has already clearly violated § 1505 and its related statutes, both as a technical matter, and as a matter of what he calls the “common law” of presidential impeachment. Because the Constitution is relatively vague on the legal standard involved in impeachment, this common law derives from the impeachment proceedings against Bill Clinton (which resulted in impeachment and Senate acquittal) and Richard Nixon (which resulted in Nixon’s resignation prior to impeachment by the full House).

Tribe points out that the description of Nixon’s articles of impeachment for obstruction of justice “reads like a forecast of what Trump would do decades later.” These allegations include “making misleading statements to, or withholding material evidence from, federal investigators or other federal employees; trying to interfere with FBI or congressional investigations; trying to break through the FBI’s shield surrounding ongoing criminal investigations; and dangling carrots in front of people who might otherwise pose trouble for one’s hold on power.”

Additionally, Tribe says, Trump’s threatening tweet at Comey following his firing is a clear instance of witness intimidation under 18 U.S.C. § 1512–13, along with another instance of obstruction of justice under § 1505.

In the wake of the Comey memo bombshell, Lawfare further breaks down the obstruction of justice case against Trump, even based merely on what is already in the public domain. The writers cite the U.S. Attorney’s Manual, which explains the three elements to be proven: “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

The first two elements are clearly satisfied, but the third—which requires showing improper motive—is typically the hardest to prove. But this is where Trump’s impulsiveness and brazenness may ultimately be his undoing. The Lawfare writers note that here, there appears to be evidence that supports inferences of obstructing an ongoing investigation. Comey’s memo reportedly has Trump telling the FBI director about the Flynn matter, “I hope you can let this go.”

“While in and of itself, the request could be understood as just a plea for mercy, which is not obviously obstructive,” the Lawfare writers explain, “the fact that it comes from a superior with the power to remove the investigator—alongside the fact that Trump then did fire Comey—makes obstruction a plausible reading of the apparent facts.”

Additionally, Former White House Counsel Bob Bauer points out that Trump’s pattern of behavior further exposes the president to obstruction charges. Trump seems to have repeatedly asked Comey if he was personally under FBI investigation, and took deliberate steps to have these discussions with Comey in one-on-one meetings. During this time, Trump actively held open the possibility that Comey might not hold onto his job. Trump repeatedly made public statements deriding the Russia investigation, calling it a “made-up story.” And several times he altered his own story of why he fired Comey.

By any reasonable standard, for the president—the chief legal officer of the branch of government charged with enforcing the nation’s laws—to exhibit such a pattern of behavior provides abundant evidence that Trump “corruptly endeavored to influence, obstruct, or impede the due and proper administration of law. . . .”

REPUBLICANS IN CONGRESS: AT LONG LAST, HAVE YOU LEFT NO SENSE OF DECENCY?

And yet, as long as Republicans control Congress, it stretches the imagination as to what Trump would have to do to before GOP leaders would consider impeachment. During the campaign, Trump famously bragged, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.” From everything we’ve seen so far, it looks like he wouldn’t lose congressional Republicans, either. Coincidentally, this was exactly the scenario Vice President John Adams and Senator (later Chief Justice) Oliver Ellsworth contemplated when they agreed that even a president committing murder on the streets could only be removed by impeachment.

One hopes that even today’s congressional Republicans would put their feet down if Trump committed murder in the streets. But as a thought experiment, it is troubling to imagine just how much they would tolerate before challenging this president’s disregard for the rule of law. This is a far cry from the world in August 1974, when Republican Senators Barry Goldwater (AZ) and Hugh Scott (PA) and Representative John Rhodes (AZ) met with Nixon in the Oval Office to tell him his support in Congress had evaporated. Nixon resigned the next day.

So what then, if Republicans in Congress continue to meet appalling bombshell after bombshell with a casual shrug?

The day after Trump fired Comey, John McCain’s longtime aide, speechwriter, and “alter ego” Mark Salter tweeted, “Words I thought I'd never say: the security of the United States might now depend on electing a Democratic Congress in 2018.”

It just might.

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