Cannot Indict a – What?

“Impermissible” – You Gotta Be Kidding Me

Key to Attorney General William Barr’s prevarications about the culpability of Donald Trump, is the DOJ’s Office of Legal Counsel’s (OLC’s) official policy that the indictment of a sitting president is “impermissible” because it would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

How does that square, Mr. Barr, with Donald Trump’s boast in January 2016, “I could stand in the middle of Times Square and shoot somebody and not lose any voters?”

Trump apologists will say the latter was merely a comic metaphor just to illustrate the utter loyalty of Trump voters. He “didn’t really mean it.”

But what was it he didn’t really mean? Just the shooting part, or the idea  that his followers absolutely believed he was above the law? Or the implication that, if he acquired enough loyal followers, that he really would be above the law?

Fact is, when it comes to pleasing his base, Trump always leans toward the criminal, whether it involves urging his followers to beat up protesters and journalists, illegally detaining asylum seekers from lands tainted by Hispanic blood or the religion of Islam, or asking his underlings to fire the special prosecutor, none of which William Barr regards as indictable crimes.*

Trump’s mind dwells in a universe awash in criminality. If it’s not rapists, drug dealers, thieves, murderers, and other dark-skinned invaders from South of the Border and dens of Islamic terrorists (excepting Saudi Arabia where there’s a financial interest), it’s enemies-of-the-people journalists, shadowy plotters in the Deep State, non-citizen president Barack Obama bugging his hotel, Hillary Clinton’s treacherous emails, arch-liar Christopher Steele . . . in such a universe,  one must engage in commensurate criminality or go down in the jaws of ruthless predators by whom Trump sees himself besieged.  One must find powerful and equally unscrupulous allies such as the Dark Lord of the Senate, Mitch McConnell. And, recently, Trump’s scowling right-hand con man, William Barr.

As President, Trump flaunts his willingness either to ignore laws, break laws, or bend them so far that they become unrecognizable.   If there is anyone who has ever held the office who has failed to perform his “constitutionally assigned functions,” it is he.  (Unless you count endlessly watching TV, tweeting every spiteful thought, and playing golf “constitutionally assigned functions.”)

Since that’s apparently not enough to shake William Barr’s faith in the unindictability of the president, what would? If the president were to grab an assault rifle, go out on the White House lawn and start mowing down protesters, we might expect William Barr to stand by and say, “Lay off this poor emotionally distraught man who has been unfairly pilloried by the press and the political Left.  He’s been stretched to the limit, could plead insanity, and anyway it’s impermissible to indict a sitting president.”

(One thing we can agree with Barr on, Trump could plausibly plead insanity.  At any moment.)

Barr might add, in a nod to a glimmer of common sense, “But there’s a  constitutional remedy for that, if you really think it’s all that bad.  It’s called impeachment.”

The impeachment card—ace or joker?

Constitutionally, impeachment is the ace the legislative branch can play to counter the wrongdoing of the chief executive and his or her minions. It’s the Ace of Spades with which Congress can dig up all the ways in which the chief executive has committed “high crimes and misdemeanors,” and hold him accountable.

However, recently conservatives have employed the impeachment card as a Joker in the vein of comic metaphors such as shooting people in Times Square. Here, for example, is the opinion of respected legal scholar Philip Bobbitt writing in Lawfare: “If the president shot and killed someone on Fifth Avenue, I have little doubt he would be swiftly impeached by the House of Representatives and convicted by the Senate forthwith.”**

Such levity from respected legal scholar Philip Bobbitt! “If the president shot and killed someone, he would be swiftly impeached  . . . and be convicted  . . . forthwith.” Ha ha! He signals he’s joking by the code word “forthwith,” which has rarely been spoken this side of the last millennium.

Bobbitt fails to explain what law enforcement is supposed to do during the forthwithian interval wherein the House of Representatives assembles itself in emergency session, draws up articles of impeachment, holds a vote to impeach, and passes the measure over to the Senate which then delivers a guilty verdict, all of which would take at least eight hours in which the president could continue to commit mayhem.  After all, the Attorney General holds that a sitting, (also lying) president cannot be indicted. If you were a policeman you might hesitate to approach a man, who, gun in hand, believes that he is immune from prosecution.

The ambiguity about impeachment slipped in by the Right —that only in the most outlandish circumstances would it carry weight—has even influenced Nancy Pelosi to regard impeachment as an unwieldy blunt instrument, say the Nine of Clubs.

Not to worry – “Saner Heads” will prevail.  (Fear not – I’m about to leave the jesting behind.)

(We need to remember that the Saner Heads Doctrine was described not long ago in an open letter to the New York Times, assuring us the public not to get rattled by Donald Trump’s erratic and outrageous behavior—they had it all under control. Sure, the public said, and went back to watching football.)

It’s a seeming paradox that a William Barr, as head of the country’s chief law enforcement agency, would give a green light to someone going about with an AR-15 picking off disloyal members of the press and members of the Democratic Party at will—the someone being the President. William Barr, you might imagine, could actually say, “Oh, I didn’t mean that.”

As with Trump himself, we can ask, Mr. Barr, what did you mean? At what level of criminality would you call out, “this has to end!?”

Which is precisely the point, considering which we can now set comic hyperbole aside and consider the real absurdity of the DOJ policy against indicting a sitting president. Common sense screams that there must be some threshold at which you can hold the President accountable.

Obviously Donald Trump is not going to go on a literal shooting rampage (he leaves that, with occasional hints of encouragement, to his base). What he does do, is his best to circumvent the law, question its legitimacy, or sometimes meet it head-on administratively, such as directing ICE to sent asylum seekers back to their home countries without a hearing. Mr. Barr seems to regard these as minor sins.

The other constitutional remedy to thwart a criminal president—evidently once entertained by Deputy Attorney General Rod Rosenstein—is  Article 25 of the Constitution, that purportedly enables members of the Cabinet together with the Vice President to declare the President unfit for office and take over the chief executive functions. Actually, in Constitution Daily, we read that it’s a lot more complicated than a coup by a bunch of underlings. It involves allowing the President to lodge a protest, and a two-thirds majority of Congress is required to enforce it. (See Constitution Daily on Article 25.) But, whatever its cumbersomeness,  Article 25 is the “Saner Heads” relief valve that is supposed to make us breathe easier.

That’s if there were enough independently-minded heads in a cabinet now packed with Trump yes-men, and if there were a Vice President with a spine stiffer than a string of gelatin, plus if there existed a Congress in which entirely two-thirds were not paralyzed by the doomsday scenario of losing a Republican primary. That’s three big IFs in a row. But you already know, there’s little reason to breath easier with Trump in office.

Take heart – there is some sanity in the legal world

Martin London, once a principal lawyer for Vice President Spiro Agnew, argues in the pages of Time magazine that “Robert Mueller Was Wrong. President Trump Can Be Indicted.”  

By implication, London imputes wrongness to William Barr as well, since it is Barr we can assume leaned on Mueller to bend to the absurd immunity policy.

London takes the trouble to describe the genesis of the OLC’s preposterous notion that the President is above the law. He adduces the Supreme Court’s refutation of such a policy twice, once in the case of Nixon (he was not immune from grand jury subpoena), and once in the case of Bill Clinton (he was not immune, even as President, from a civil suit stemming from actions prior to his taking office).

At the core of all this is the OLC’s, and William Barr’s violation of the clear spirit of the Constitution as well as the Declaration of Independence, which is that no man is above the law. That no man can be King. Yet.

London concludes, “Had the rigid Mueller applied the law, instead of the politically-rigged DOJ doctrines, Trump’s now famous prediction may have actually have come to pass. In his own words, he would be ‘f—ked.'”

If only.

========= footnotes ===========

* We can be sure about the last, since, after reading the Mueller report littered with Trump’s thwarted attempts to have Mueller fired, Barr maintains he did not obstruct justice—in fact, according to Barr’s famous 19-page letter prior to his appointment as Attorney General, Barr asserted that a sitting president cannot be held guilty of obstruction of justice by virtue of the elevation of his office. (Barr says he has a different “theory of the case” than Robert Mueller, which is a fancy way of saying he’s right and Mueller’s wrong.)

** https://www.lawfareblog.com/indicting-and-prosecuting-sitting-president