With the recent guilty plea of former President Trump’s campaign manager Paul Manafort, and his agreement to cooperate with Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election, the legal debate about whether a sitting president can be indicted for criminal wrongdoing committed either before or during his or her presidency has taken on a new sense of constitutional urgency.
The Mueller investigation over the past sixteen months has produced indictments or guilty pleas against 32 individuals and three companies. There is ample evidence in the public record to provide probable cause to believe hat President Donald J. Trump engaged in criminal wrongdoing during his presidential campaign and has done so while in the White House—the Michael Cohen guilty pleas support this serious charge.
Whether or not Donald Trump is a criminal will ultimately be determined by a jury either during his presidency or immediately after his presidency. There is little doubt that the current president will surely be called upon to account for his alleged criminal wrongdoing. The only issue is when.
What does the Constitution tell us?
Article II, section 4, states that “The President, Vice President and civil officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Given President Trump’s behavior while in office—disclosing classified information to the Russians, declassifying sensitive law enforcement and intelligence information, flagrant acts of obstruction of justice, and violations of the Emoluments Clause—there is more than reasonable suspicion that the president has engaged in at least one of the grounds allowing for impeachment.
Shall be liable and subject to Indictment, Judgment and Punishment
Article I, section 9, states that “Judgment in cases of Impeachment shall not extend further than to removal from Office … but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”
Section 9 clearly demonstrates that the President of the United State is not above the rule of law, even if his name is Donald J. Trump.
Writing in the January 29, 2018 edition of Time Magazine, Martin London, the principal attorney for former Vice President and convicted felon Spiro Agnew, said the important thing about these sections of the Constitution is what they do not say.
“There is no language in the Constitution providing the President with any immunity from prosecution by the appropriate criminal authorities:” London wrote, “he is subject to the ordinary criminal process of ‘Indictment, Trial, Judgment and Punishment, according to law.’ Furthermore, there is not one syllable directly putting the President beyond the reach of the criminal law even if Congress does not impeach.”
Indictment Can be Tool for Presidential Accountability
London’s astute observation is precisely why Eric Freedman, professor of constitutional law at Hofstra University has repeatedly stated that a criminal indictment is an additional tool to hold a sitting U.S. President accountable for criminal wrongdoing.
We agree with these gentlemen.
This past May we posted a piece in which we opined that the “rule of law” applies to all, including the President of the United States. The Cohen/Manafort guilty pleas; the president’s visceral attacks on the FBI, the Justice Department, and the Attorney General; his borderline treasonous relationship with Russian President Vladimir Putin; the massive corruption in his Cabinet and the White House; his pathological lying, distortion of facts, and disassociation with reality; and his flagrant abuses of the power of the residency through self-enrichment and the enrichment of his family convince us all the more that the president’s penchant for criminal, amoral wrongdoing should by all means subject him to the rule of law. Anything less is not only a threat to this country’s national security but an imminent danger to the very Democratic ideals upon which this nation is based.
America is Not Owned by the Trump Empire
America is neither a mafia state nor a police state. President Trump’s behavior, both political and personal, and his actions, direct and indirect, signal a desire by him to have both. The only thing standing between our democratic social order and totalitarian rule is the rule of law. The rule of law prevailed over slavery, Jim Crow, lynching, and a long litany of human and social injustices that have tarnished American history. This nation’s political, military, law enforcement and religious leaders must now allow the rule of law to spare us from this attempt at dictatorship.
There is nothing in the U.S. Constitution that immunizes President Donald J. Trump from criminal investigation and indictment. Thus, neither political nor judicial expediency should immunize the President of the United States from the rule of law.
The rule of law must not allow this president to believe he can stand on Fifth Avenue, shoot someone, and not be held accountable.