Did the President commit a crime by firing James Comey? By asking him to end his investigation of Michael Flynn? Was it obstruction of justice? Another crime? Everywhere, experts have been reaching conflicting conclusions. But what is lacking is an informed discussion of what could happen next.
There are two areas of immediate consequences for Donald Trump, and they overlap. (Disclosure: In 1985, I represented a client facing a suit brought by Donald Trump.)
The first area is impeachment. Article II, section 4, of the Constitution provides that upon impeachment by the House and conviction by the Senate of “Treason, Bribery, or other High Crimes and Misdemeanors,” the affected civil officer “shall be removed from Office.” The only Article II remedy is removal — and not criminal penalties.
But impeachment is surely unlikely in this instance. The Republican Party has a stunning 45-vote edge in the House, where it would take a majority to impeach. And even if the House voted on Articles of Impeachment, it would take only 35 of the 52 Republican Senators to block conviction, since the Constitution requires a two-thirds majority.
The second area is criminal prosecution. Here, the country faces an important question: Even if additional evidence were discovered that lead to the incontrovertible conclusion that the President’s conduct did violate criminal statutes, what is the remedy? As a practical matter, our constitutional scheme provides no criminal prosecutorial remedy at all while he retains his office.
For one: Who would bring the charges? The Department of Justice is, in the end, under the absolute control of the President, from the Attorney General down to the lowliest Assistant United States Attorney. Richard Nixon made that plain in the Saturday Night Massacre, when he forced out his Attorney General, and then his Deputy Attorney General, because each in turn refused to do the President’s bidding and fire the Special Prosecutor leading the active criminal investigation into the possibility of Nixonian wrongdoing with regard to the Watergate burglary and its cover-up. It’s just a question of firing enough people until, down the line, the President reaches a Department of Justice official who will oblige the Chief Executive, as Mr. Nixon found in Acting Attorney General Robert Bork. (Mr. Bork, in his memoir, said that both the AG and the DAG urged him not to resign. In any event, Bork complied with the President’s wishes and fired the Special Prosecutor.)
Also, even if Robert Mueller, who was just named Special Counsel by the Department of Justice and therefore ultimately serves at the pleasure of the President, or another federal prosecutor did try to indict Trump, there is a substantial constitutional question as to whether that prosecution could proceed.
The Constitution is silent on the question of whether a president can be indicted while still in office, and there is no court decision that enlightens us further. But there is prosecutorial precedent for the proposition that a sitting President cannot be indicted.
In 1973, my colleagues and I urged the Federal Court to conclude that there was virtually unanimous expert legal opinion to the effect that a sitting president is constitutionally immune from criminal prosecution. We also urged that the status should be extended to our client, the other Article I officer, Vice President Spiro Agnew. That led, we argued, to the conclusion that the Vice President could not be indicted while in office.
Meanwhile, notably, the government’s opposing brief, written by then Solicitor General Bork, unconditionally confirmed the President’s immunity. Yet it found the question of whether the Constitution extended the President’s immunity to the Vice President to be “momentous and difficult.”
Our argument was based, essentially, on two Constitutional provisos.
Article II, section 4, provides:
The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.
Article I, section 3, provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, … but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and punishment, according to Law.
Inasmuch as the government agreed the President could not be indicted, we argued that the two paragraphs, when read together, implied that the impeached Article I officer was “liable and subject to indictment” only after impeachment and removal, and not before. The government denied the implication and urged the concurrent jurisdiction of the Congress to impeach, and the Executive to indict.
Ironically, the House punted. Citing the pending DOJ investigation, Speaker Carl Albert refused to accept the Vice President’s offer to cooperate with an impeachment inquiry. The Attorney General, while conceding the President’s immunity from criminal prosecution, nevertheless insisted the DOJ had the right to prosecute the sitting Vice President.
We never got a conclusive answer to the unresolved Vice Presidential immunity question. In the end, the government avoided that issue, as well as a prolonged judicial inquiry into our vigorous complaint about of DOJ news leaks: The Attorney General accepted the Vice President’s nolo plea to a tax count and agreed to a modest fine and a no-confinement sentence.
But we do know this: While there is no judicial precedent on the subject of presidential immunity from criminal prosecution, it seems nevertheless to be an accepted legal principle.