No man is above the law. That’s what former President Theodore Roosevelt told this nation.
President Donald J. Trump does not believe in this rule of law.
This was evidenced during a January 2016 campaign rally in Sioux Center, Iowa when Trump told a cheering audience: “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”
Obstruction of Justice and the President
With the recent guilty plea of former National Security Advisor Michael Flynn, it appears that Special Counsel Robert Mueller is building a case of obstruction of justice against President Trump.
Last May New York Times criminal justice correspondent Adam Liptak tackled the sensitive issue of whether a sitting president can be indicted for criminal conduct committed while in office.
Liptak pointed to Yale Law Professor Akhil Reed Amar who holds the opinion that the Constitution “implicitly immunize[s] a sitting president from ordinary criminal prosecution.”
Federal D.C. Circuit Court of Appeals Judge Brett M. Kavanaugh, a former staff member of the special counsel team led by Kenneth W. Starr investigating former President Bill Clinton, wrote in 1998 law review article that it is “debatable” whether the constitution allows the “indictment of a sitting president.” Judge Kavanaugh believes that impeachment, not criminal prosecution, is the appropriate way to deal with crimes committed by a sitting president.
Impeachment, Then Indictment
Former Watergate special prosecutor, Leon Jaworski, pretty much took the same position before the U.S. Supreme Court when he sought, and secured, the White House tapes that led to President Nixon’s resignation.
“It is an open and substantial question whether an incumbent president is subject to indictment,” he told the justices.
Hofstra Law Professor Eric M. Freedman, however, disagrees with all three of these legal scholars. In a 1999 law review article, Professor Freedman made a compelling case that a sitting president can be prosecuted for criminal wrongdoing.
“I reject the idea that the Constitution gives the President blanket immunity from criminal prosecution as inconsistent with the history, structure, and underlying philosophy of our government, at odds with precedent, and unjustified by practical considerations.”
We agree.
President Donald J. Trump does not have constitutional immunity to stand on 5th Avenue, or anywhere else, and shoot someone who may disagree with him—and this president has not only endorsed but has indirectly lent credence to Russian President Vladimir Putin’s tyrannical policy of killing off journalists who write bad things about him and jailing political opponents who challenge the unbridled authority of the Russian president.
Article I, Section 3; Impeachment
But even if this sitting president believes he is immune from criminal prosecution—and his behavior during his first eleven months in office indicates that he does—he should read (or have his “sloppy” lawyer read to him) Article I, Section 3 of the Constitution:
“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party conviction shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
President Still Subject to Indictment, Trial, Judgment and Punishment
This constitutional provision makes it clear that if impeached from office for criminal wrongdoing, President Trump could be indicted and prosecuted for criminal wrongdoing after he leaves office. The statute of limitations for the federal offense of obstruction of justice is five years from the date of the offense, and if charged with conspiracy of obstruct justice, the statute of limitation actually begins with the last overt act of the conspiracy.
The conduct of this president, and all those who enable his reckless, dangerous disrespect for the rule of law, forces the rest of us to ponder the advice given to history by the Roman politician Marcus Tullius Cicero:
“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in scents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear.”