Saturday, April 07, 2018

Go Big Or Go Home

In one of the (many) articles I wish I had written, Politico Magazine's Bill Scher argues

... if Mueller believes that Trump needs to be held accountable for any violation of law, he cannot expect Congress to do the accounting. There is only one mechanism that has any chance of working, and it is not impeachment. It's indictment.

He recognizes "impeachment is a dead end because the congressinal jury pool is tainted," now that the Special Counsel "has been systematically demonized for weeks by Trump and his allies." Further, if Democrats won every 2018 Senate race, they would still control only 58 seats, leaving them nine short of the 67 they would need to convict the President in the Senate. Thus

the more serious discussion to have is about indictment. Democrats and progressive activists need not get over their skis and call for an indictment before Mueller finishes his work, as he may welll declare that Trump has not committed any crimes.

On the assumption, however, that the Special Counsel will conclude that Donald Trump has committed one or more crimes, Scher summarizes the arguments for and against the notion that a incumbent President can be indicted.

Many pundits, lawyers or otherwise, hang their hat on the the 1973, and the 2000 concurring, memo from the Office of Legal Counsel arguing indictment of a sitting President would "interfere with the President's ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure."   However, one former head of the OLC maintains that a President can be indicted while in office and be tried after he/she leaves office.  And both the Watergate special counsel investigating President Nixon and a memo received by independent prosecutor Ken Starr argued that a sitting President can be prosecuted.

In that memorandum, law professor Richard Rotunda maintained "No federal  statutes recognize, or purport to recognize, any Presidential immunity from criminal indictment. Indeed, Congress has done quite the opposite: it has created an Independent Counsel statute for the express purpose of investigating alleged criminal activities of the President."  While the independent counsel has been replaced with a special counsel, Congress still has conspicuously chosen not to enact a statue "creating some sort of temporary immunity."

Nor is there a need to do so.  The notion that prosecution of a sitting President would render the nation rudderless flies in the face of reality- and of Article II, Section 1 of the Constitution, which relegates to the Vice President (emphasis mine) the "powers and duties" of the President if the latter  unable to do so because he resigns, dies, or is unable to discharge those functions. Rotunda explains

Because·of this (i.e., 25th) Amendment, the temporary disability of the President does not incapacitate an entire branch of government because the Constitution itself recognizes the problems and deals with it in a structural way, not by creating an immunity but by providing for a temporary replacement. In addition, the indictment of the President does-not incapacitate either the President or entire Executive Branch. Aaron Burr was quite able to function as a Vice President although indicted. Indictment does not incapacitate the indicted individual. In the unlikely event that the defense of a civil case (e.g., Jones v. Clinton) or the defense of a criminal case would prevent the President from performing his duties, the Executive Branch does not simply shut down. The Twenty Fifth Amendment, § 3, provides a procedure for the Executive Branch to continue to function "[w]henever the President transmits . .. his written declaration that is unable to discharge the powel'S and duties of his office .... " This procedure is clearly not limited to cases of illness. 

One should also note that it is easy to make a claim that the Executive Branch will simply "shut down," but that claim is difficult to accept.

The only other constitutional duty of the Vice President is to preside over the Senate, which any dimwit can do. Nonetheless, the McCain-Palin ticket of 2008 was harmed by the widespread belief that the vice-presidential candidate was unqualified and unable to perform the duties of the President..

That has not been a common handicap to a presidential ticket, and Trump-Pence was no exception because- however awful a president he would be- Mike Pence is qualified for the office.  The notion that somehow the USA would be a hopeless basket case if President Trump is preoccupied with matters other than the presidency is laughable on its face.

No doubt Robert Mueller know, as Rotunda emphasizes,  that "the Constitution does not create an absolute Monarch above the law" and that "in this country, the US Supreme Court has repeatedly reaffirmed the state that no one is above the law." If he is the stelllar public servant and patriot he is reputed to be, Mueller understands that confidence in civil institutions is at stake, The American people need to be assured (or convinced) that the powerful recognize that everyone is equal under the law and that this is a nation of laws and not of men.

Robertt Mueller will not be eager to look over his long career, including this long investigation, and conclude that all has gone to naught as Congress does little or nothing.  Therefore- as Bill Scher believes-

If by the end of the investigation, Meller concludes Trump has a (sic) committed a serious crime, he should recognize that he has only two real choices: Indict or go home.

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