Withdraw immunity from the president
that of Donald Trump interest in another presidential race is apparently linked to his growing concerns about the Jan. 6 special committee hearings. More recently, after Vice-Chair Rep. Liz Cheney suggested the committee could do several criminal dismissals for his conduct, Trump exploded to “the warmongering, despicable human being Liz Cheney, who…keeps saying, over and over again, that HER bogus screening committee can recommend CRIMINAL CHARGES against a President of the United States who got more votes than any sitting president in history.”
Various motivations can fuel Trump’s electoral calculus for 2024, but one in particular is focused. By applying for a position, he would be asking for legal immunity.
Since 1973, the Department of Justice’s Office of Legal Counsel (OLC) has taken the position, which it affirmed in 2000, that a sitting president can be investigated, but not prosecuted, for crimes. It is now the law of the executive. To defend himself against possible federal and state lawsuits by seeking the office that would immunize him, Trump would exploit the constitutional system at one of its most dangerously vulnerable points.
A former president of a term facing liability arising from actions during that previous term is incentivized to run for office as a means of self-protection. Any future president who shares Trump’s point of view that he has the “absolute right to do whatever I want to do with the Department of Justice” can even end investigations on himself. A president thus disposed has only to appoint docile civil servants from the outset.
The United States has never faced these circumstances, but they are inevitably before us, and it calls for legal and institutional reforms to address this threat to the rule of law. Such reforms cannot be limited to Donald Trump’s potential assaults on impartial law enforcement – long before him came Richard Nixon.
Any authoritarian populist president can take advantage of legal immunities and the ability to exercise political control over the Justice Department. A candidate who shows up in the Oval Office seeking legal protection is also likely to interfere with investigations, abuse the power of pardons or appoint special advocates to harass opponents. And the same power to prosecute that the president need not fear could be unleashed on his adversaries, for example in Congress: “Immunity for me, not for you.”
We can also now see how a presidential candidate concerned about legal peril could bring the issue into a campaign and hope to advance his immunity from prosecution even before an election. Already, at his rallies, Trump denounces “corrupt” investigations, aimed at mobilizing political support against any prosecution, federal or state.
An early announcement of a presidential campaign, he can bet, would make it even harder for the government to prosecute him. By putting his possible criminal prosecution on the ballot in 2024, Trump would challenge prosecutors to make the explosive decision to indict him as he runs for president.
Steps to resolving these issues must begin with reconsidering the opinions of the OLC – wrong in their conclusion and wrong in their analysis. The 2000 edition reaffirmed the 1973 conclusion that although the Constitution does not expressly provide for presidential immunity, “general considerations of constitutional structure” dictate a complex balance between “the normal functions of the courts and the special responsibilities and functions of the presidency” . The prosecution, unlike the investigation, would unconscionably impede a president’s ability to carry out his constitutional duties.
Written at the end of the Clinton presidency, after years of investigations by independent counsel that clearly weighed on the administration, the 2000 opinion’s attempt to draw a Constitutionally-based distinction between investigation and prosecution seemed remarkably blind to reality. Even on their own terms, neither this opinion nor the previous one hold water. And they come up against the fundamental intuitions of the rule of law in a democracy: for example, that could not Be honest, as claimed by a Trump lawyer in a proceeding in federal court, that a president could shoot someone in the middle of Fifth Avenue and be immune from prosecution.
Another problem with the OLC advisories arose when they convinced special counsel Robert Mueller that his final report should not express a judgment on whether then-President Trump committed obstruction of justice: This created additional uncertainty as to where the view of the OLC on immunity leaves a crucial aspect to the effectiveness of special advocate investigations.
Fresh and Well Motivated Legal Fellowship underlines the extent of the weaknesses of the opinions. In his recent exploration of the subject, constitutional scholar Saikrishna Prakash cites evidence from our ancient history for an assumption that “unlike the British monarch, American presidents did not enjoy the protection of the legal fiction that they could not make of bad”. Praskash also notes a salient but little-noticed point in history that disproves any assumption that presidents have always enjoyed legal immunity: the arrest of President Ulysses S. Grant while in office for speeding. in his car, which he did not dispute.
The Department of Justice has the discretion to reconsider OLC opinions; he’s done it once and he should do it again. But more can be done, especially given the fact that a future president seeking to claim immunity could simply order the Justice Department to backtrack and reinstate the initial grant of legal protection.
A more comprehensive and decisive reform would consist in removing the ministry from the executive and making it an independent agency. This was proposed by Senate Watergate Committee Chairman Sam Ervin, who call for the DOJ would be an “independent institution of the United States” headed by a confirmed Attorney General for a six-year term.
The plan has faced strong opposition from a bipartisan roster of senior and respected lawyers, including Attorney General Griffin Bell, who served under President Jimmy Carter, who himself initially favored the idea. A proposal like Ervin’s gifts complicated problems and would require careful consideration. But the objections that seemed valid in the late 1970s have less force and deserve to be reassessed in the terms of American politics half a century later. The cost of rejecting this major reform out of hand is too high.
The final piece of this reform agenda would be to overhaul the broken impeachment process. The OLC’s views on immunity relied heavily on assumptions about the effectiveness of impeachment as a response to a president wanting to abuse his immunity from prosecution: Congress could remove a rogue president from office. , then prosecution, if warranted, could proceed. I also thought that once, and wrote that the president “can fire prosecutors one after another until he comes up with a flexible replacement… It is also very likely that, regardless of his view of the primary offense being the subject of the investigation, Congress would intervene through the impeachment process to restore the rule of law”. .’ In light of our polarized politics and recent experience with the impeachment process, that statement does not sit well.
The rules of each house of Congress remained unchanged and unclarified in the face of a series of questions. Among the timing and process issues raised is whether the House and Senate have an obligation to conduct a meaningful and independent inquiry and what motions are permitted. The House and Senate are now filling in the gaps as they go, in the very specific circumstances of a particular impeachment — which, in the heated politics of the moment, is the worst time to do so.
All of these potential changes should satisfy a Golden Rule of presidential reform that OLC alumnus Jack Goldsmith and I have proposed: “Always imagine whether a constraint on the presidency would be legitimate if your favorite president were in office or, conversely, if a grant of discretion presidential office would be legitimate if exercised by a president of another party. The debate over an independent Justice Department will inevitably be complex and will take time to resolve. A good starting point, however, would be to establish once for all that presidents are not immune from criminal prosecution while in office.