Part II: Trading a Headache for an Upset Stomach

© 2020 Dan Cofran
Part I here

Reading Time: 6 Minutes

A sitting president can be indicted, tried and convicted in court, in addition to, or instead of, impeachment and removal from office by the House and Senate.  Please see my June 13, 2019 post on my “Know Your Constitution” blog page for an explanation.

Reminder.  Impeachment by the House does not actually remove a president or other federal official.  He or she must then be tried and convicted in the Senate by a 2/3 majority vote of those present, based upon allegations set forth in “articles of impeachment” passed by majority vote in the House.  Impeachment simply starts the process, like an indictment does in criminal court.

People who see the current Senate as highly unlikely to convict a sitting president of the same party may see indictment, trial and conviction in a court as an alternative.  However, indicting and trying a sitting president is fraught with legal and practical complications.  Be careful what you wish for.  Let’s take a look.

Impeachment and indictment serve different purposes. 

Impeachment is about preserving the integrity of government by removing a federal officer from office for “Treason, Bribery or high Crimes and Misdemeanors.”  “High Crimes and Misdemeanors” in impeachment may or may not be crimes.  Conviction in the Senate results in removal from office. 

Indictment is about punishing a federal officer for criminal acts, some of which may not be “high Crimes and Misdemeanors,” and results in fines and imprisonment.  The officer is not removed from office.

Impeachment

Impeachment is broader than a criminal prosecution.  In addition to “high Crimes and Misdemeanors,” impeachment can be based on acts that are not crimes, specifically, presidential violations of the Constitution.  Examples:

The Emoluments Clause bars office holders from accepting “any present, Emolument . . . of any kind whatever, from any foreign state” without the consent of Congress, Art. I. sec. 9, cl. 8, which includes business earnings, not just gifts;

The Appropriations Clause requires that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” Art. I, sec. 9, cl. 7, meaning a president cannot re-direct Congressional appropriations for purposes other than those specified by Congress (“A president proposes, but Congress disposes”);

The Appointments Clause requires Senate “Advice and Consent” for the appointment of . . . all . . . Officers of the United States,” but “Congress may by Law vest the Appointment of such inferior Officers, as they may think proper,” Art II, sec. 2, cl. 2, limiting the use of “acting” cabinet secretaries and top White House officers for indeterminate terms without Senate hearings and approval; and

The Take Care Clause requires that the president “take Care that the Laws be faithfully executed,” Art. II, sec. 3, cl. 5, meaning that a president must enforce as passed and signed, not back-pedal, all laws passed and funded by Congress.

On the other hand, impeachment does not cover all crimes.  It covers only “Treason, Bribery or other high Crimes and Misdemeanors.”  Art. II, sec. 4.  “High” crimes does not refer to the seriousness of the crime.  High crimes in the 18th Century meant crimes committed by persons in “high” office that were a breach of their trust of high office and a betrayal of their nation. 

Obstruction of justice regarding crimes against the nation is a “high” crime.  On the other hand, committing perjury about an extramarital affair or lying about asset values on a loan application unrelated to one’s duties in office likely would not be a “high” crime.  Those matters are better left to the courts.  This is another reason a sitting president should be subject to indictment.

Indictment

Indictment and trial of a sitting president easily can be much more complicated than impeachment proceedings.  Impeachment by the House and trial before the Senate can be done in a matter of months.  Indictment, pretrial practice, a jury trial and appeals, like any major criminal prosecution, can take years.  On the other hand, there is no appeal from a Senate impeachment trial. It’s “one and done.”

There is also a very serious question about who would prosecute an indictment.  Would the Department of Justice, headed by an appointed Attorney General and appointed U. S. Attorneys give it 100%?  Because of conflicts of interest, could they even prosecute their own president?

Under the Constitution’s separation of powers, a Congress can only request that a special counsel be appointed.  Prosecution of crimes is left to the executive branch, not the legislative branch.  But the Department of Justice is not required to appoint a special counsel whether requested by Congress or not. 

Accordingly, a special prosecutor would be needed like Robert Mueller (Russiagate), Kenneth Starr (Whitewater), Leon Jaworski (Watergate) or Archibald Cox (also Watergate).  In an impeachment trial, the House selects a floor manager to act as prosecutor for the Senate trial.

Even if special counsel was appointed, an unscrupulous president could use his or her vast powers to frustrate prosecution with witness intimidation or tampering, destruction of evidence, dangling pardons and similar measures.  Impeachment proceedings are more difficult to affect.

Finally, should the fate of one of the only officials voted on by the entire nation be put in the hands of twelve jurors from the District of Columbia or other federal court district?  In an impeachment trial, the full Senate sits as the jury.  Each state is represented.

Finally, if convicted, a sitting president would not be removed from office.  That only can be done with impeachment.  Absent resignation, there would still have to be an impeachment and trial after a criminal conviction.  Where is the gain?

Alternatives

If any one of us was a member of Congress having to make an impeachment v. indictment decision, the Framers hopefully would be comfortable with (1) impeachment for Treason, Bribery, high Crimes and Misdemeanors as well as violations of the Constitution and (2) indictment and criminal trial for lesser crimes not rising to the level of a breach of trust of high office and betrayal of the nation.

What if the separation of powers and impeachment process is so broken that the House might be willing to vote articles of impeachment but the Senate, the Majority Leader in particular, may have already made it clear that it will not convict?  What purpose is there to a useless act that will further divide the nation?

Harvard law professor Laurence Tribe has suggested an alternative.  The House is fully competent under its Constitutional oversight powers to appoint a special committee or use an existing committee or committees for an impeachment inquiry (or an “Inquiry into Presidential Conduct” without using the unsettling word “impeachment”). 

The inquiry would take evidence including live testimony and produce (1) a report to the American people for their consideration in the next presidential election or, depending upon developments, (2) a recommendation for impaneling a formal impeachment committee.  The inquiry and report in today’s world would include both the criminal matters referred to in the Mueller Report and alleged violations of the Constitution.

There is no easy answer.  The basic separation of powers structure in the Constitution is specific enough to maintain the strength of our government, but at the same time it is flexible enough to permit different approaches for problems not anticipated in 1787 when approved by the Framers and submitted to the states.