Indicting the President

Senator Elizabeth Warren has called for the ability to indict a sitting President for criminal activity, and promised, if elected, to appoint officials to the Justice Department who would reverse existing policy, which holds that a sitting president cannot be indicted.

Allow me to explain why these are bad ideas.

The primary problem is that they open the door to the criminalization of politics. Alan Dershowitz explained the pattern two years ago.

It is deliberately hard to impeach a president. The Constitution grants to the Senate the power to try all impeachments, and requires a two-thirds majority to convict. Only two presidents have been impeached and brought to trial, and neither was convicted. Three articles of impeachment were recommended by the House Judiciary Committee against Richard Nixon, but he resigned before the House could vote on them.

Impeachment is a political process, but is only for extraordinary political use. Merely having a policy difference with the president is not a reason to pursue impeachment.

In nations with sham democracies, such as Venezuela, criminalization of politics is a well-tried and proven tactic for governing strongmen to use on their opponents. In April of this year, allies of President Nicolas Maduro proposed government action to strip opposition leader Juan Guaidó of his parliamentary immunity.

In the Ukraine, after Viktor Yanukovych took power in 2010 elections, his government systematically pursued his predecessor, Yulia Tymoshenko, claiming a wide array of charges. The Yanukovych government also went after Tymoshenko allies, including her attorney. Tymoshenko was found guilty of abusing her office and sent to prison in 2011. The Yanukovych government hired Paul Manafort to run the international public relations offensive against Tymoshenko. After Yanukovych was forced out of power in 2014, Tymoshenko was released and the case against her was voided by the Ukrainian Supreme Court.

We don’t want those sorts of shenanigans going on here. The remedy for criminal behavior by a President, as provided in the Constitution, is impeachment. The Constitution is clear that “high crimes” are grounds for impeachment.

The country is sharply divided, and that division will be made worse by people who ignore process in pursuit of the outcome they want. I have already discussed the problems with centering the case against Donald Trump on obstruction of justice.

In two important cases from the 1980s, the Supreme Court has struck down provisions by which Congress can implement a legislative veto of Presidential actions. Maybe now Congress would like to be more clear about the powers it delegates in its laws. The Supreme Court has closed off the avenue of granting wide powers and then armchair quarterbacking how the President uses them.

Whether legislators believe that Trump has committed high crimes or simply demonstrated misfeasance, they have a potential remedy available to them. Yes, they had better be sure that they take the public along with them. Opening up the possibilities for criminalization of politics is not only unnecessary, but dangerous.