Make It Clear - A President Can Be Indicted

Since April 1789, when George Washington took the oath of office as the first president of the United States, the country has generally benefitted from the verity that all those who have held the office possessed some sense of honor regulated by the desire to maintain a good public reputation. In each case, fear of humiliation helped keep them from pursuing their worst instincts, if they were at all tempted.

Then came the 45th president, whose greatest power is his lack of shame. Almost a year after he left office we are still digging through the pile of norms he has left on the scrap heap of American democracy. Norms that worked for the first 232 years, because it was generally assumed that any public office holder would come to work each day intent on offending no one as the best way to stay in office.

Congress is beginning to sift through the wreckage and propose laws that would codify means of operation in the federal government that have previously held based on a common understanding of the public good. Among these are laws that would make clear a sitting president cannot use his office to enhance the income of his private sector business; laws that would explicitly prohibit the use of the Office of President to extort foreign leaders to interfere in a U.S. election; and laws that would more clearly draw a line between the Office of President and the U.S. Justice Department. The last one would tend to prevent presidents from using federal law enforcement to go after their political opponents.

Of all the proposed changes, the most urgent is the need to make clear - in the law - that a sitting president can be indicted and tried while in office. Because the 45th president was impeached twice, we all have had the opportunity to become arm chair impeachment experts.

We have learned that impeachment is the one political remedy in the Constitution meant to be used to remove a corrupt president from office. We have learned(through President Clinton and President Trump) that impeachment is survivable if the president’s party can withhold enough votes to prevent conviction in the Senate. We have learned that a president so protected, is then free to behave in almost any way he sees fit, as long as embarrassment and the conditions of the 25th Amendment are not factors.

The precedent protecting presidents from indictment and criminal trial has little to do with the law as most Americans understand it. It is not a product of the “how a bill becomes law” process that you learned in high school civics. It is the product of an internal Justice Department memo that has always been suspect and now must be considered dangerous if allowed to stand.

The Justice Department has a number of rules in place meant to ensure criminal investigations, indictments, or related proceedings do not interfere with the electoral process. The rule protecting presidents from indictment recognizes the unique responsibility of a sitting president and acknowledges that a president forced to defend himself against indictment would not be able to focus on his job. In short, the Justice Department, out of a sense of fairness to a potential presidential defendant and concern for the American people, has been operating under this no indictment policy.

Lawyers in particular, are often subject to being blinded by their own superior knowledge and that seems to be the case in the matter of the United States vs. Any Sitting President. The rule defies logic even without the shared experience of the Trump administration, because it puts the president above the law at least for the duration of his term. This cannot be what anyone intended and cannot be what most Americans expect from their justice system.

This brings us back to the concept of shame and humiliation as a leveling force in politics.

A president concerned about doing his job on behalf of the American people would do his best to avoid engaging in any behavior that would lead to indictment. An attorney general making the decision to indict, in such a high-stakes case, would only do so if the facts were not in dispute. A president facing indictment while in office would come under tremendous pressure to resign. A president forced to defend himself at trial would almost certainly face the possibility of removal from office by impeachment. 

These are exactly the checks and balances we want in place. We should want any future president to understand that any behavior that even approaches indictable conduct would lead to the end of his or her presidency.

Our second president, John Adams wrote, “May none but honest and wise men ever rule under this roof.” The words are carved into the mantle-piece in the State Dining Room of the White House. The quote is emblematic of a system of government that may have been built on a foundation too dependent on a sense of honor.

Every day new evidence comes to light that shows President Trump has not been honest or honorable. He abused the power of the office throughout his entire term. He survived the Mueller investigation, not because he was innocent, but because of the policy against presidential indictment. He took that experience, along with his acquittal in his first impeachment trial, as a signal that he could act with impunity and in that context, when he lost the 2020 election, he spent the next three months attempting to illegally reverse the results by any means at his disposal; including insurrection.

The current policy does not protect the country from a criminal president. It protects a criminal president from facing the same equal justice the rest of us are subject to and erodes the foundational belief that in America no one is above the law.