In July, Representative Devin Nunes, a Republican who chairs the House Intelligence Committee, told donors gathered for a fundraiser that preserving their party’s majority in Congress matters above all because they “are the only ones” who can protect President Trump if the special counsel or the Department of Justice refuse to clear him.
The comments raise anew the question whether a sitting president can be indicted and tried for his crimes. The question has yet to be answered in practice. But among experts who have shaped my thinking about the question is Noah Feldman, a professor of constitutional law at Harvard, who in May published an analysis in The New York Review of Books.
Feldman argues from the premise that “the Constitution should not be read to allow a sitting president who has committed serious crimes to hide behind his office and avoid accountability for them.”
As he sees it, whether the crime occurred while the president is in office or before he became president, we ought to allow prosecution of the president if Congress fails to remove him from office via impeachment. I agree.
Feldman suggests a scenario in which prosecutors in New York who are investigating Michael Cohen, the president’s former lawyer, uncover evidence sufficient to charge President Trump with crimes such as money laundering or conspiracy. Could a federal grand jury indict the president?
Without precedent
A sitting president has never been indicted. Feldman chronicles debate over the prospect since 1973, when the Watergate prosecutor received a memo from a law professor at Harvard asserting that President Nixon could be indicted while in office. (The prosecutor decided not to indict Nixon once proceedings in Congress to impeach him had begun; the prosecution named the president an unindicted co-conspirator.)
The same year, the Office of Legal Counsel at the Department of Justice produced a memo concluding that all executive branch officials could be prosecuted while in office with the exception of the president, who was immune. In 2000, the office wrote a memorandum affirming that view, which has guided policy at DOJ since.
But the analysis doesn’t end there. Suppose, as Feldman does, that Trump actually shot someone on Fifth Avenue, a scenario that then-candidate Trump imagined aloud in 2016 as a brag about the loyalty of his supporters.
Feldman writes:
“Suppose further that a Republican House did not immediately impeach him, or that the Senate could not reach the two-thirds supermajority needed to remove him from office. Could we continue to believe in the rule of law if the president were able to avoid criminal prosecution as long as he remained in office?
Our conclusion should presumably be the same if we imagine that the crime was committed before he entered office but revealed only once he was in the White House. The Constitution should be not interpreted to require such a moral outrage.”
Yet the prospect of such an outrage looms. As the comments by Nunes and the refusal of Republicans in Congress to pass a bill to protect the Mueller investigation suggest, the party could look away regardless what the evidence shows and refuse to impeach him.
Feldman acknowledges the views of scholars who oppose indicting a sitting president – either because Congress, a coequal politically elected branch of government should do it, or because, in their view, the Constitution implicitly requires impeachment and removal from office to precede criminal prosecution.
As a practical matter, Feldman notes that prosecutors could name Trump as an unindicted co-conspirator (assuming the evidence warrants) and then see whether Congress impeached him. If Congress resisted, prosecutors could try to persuade the attorney general to authorize a prosecution.
Feldman notes with approval the recommendation of Cass Sunstein, Feldman’s colleague at Harvard, that we should think about impeachment, as Feldman puts it, “based on principle, without thinking of concrete scenarios connected to specific politicians we like or despise.”
Of course, if takes some imagination to picture prosecutors actually prosecuting the president. Would the FBI arrest him if he refused to turn himself in? What would the Secret Service do if FBI agents showed up at the White House with a warrant for the president’s arrest?
There’s no precedent for such scenarios, which underscore the fears of those who say that Congress alone – subject to the voters in the election that follows – should decide the fate of presidents.
Feldman counsels a focus on practical results and consequences. He also notes that we allow for the investigation and prosecution of representatives, senators and other elected officials who have committed crimes.
“In the end, pragmatic reality should outweigh high formalism when it comes to preserving constitutional government,” he writes. “In the matter of the Watergate tapes, the case was called United States v. Richard Nixon. If it becomes necessary, the Department of Justice, acting on behalf of the people, should bring the case of United States v. Donald Trump.”