Is it
wishful thinking or recognition of the inevitable when I convince myself that
the day of reckoning for this President is imminent and that the only question
is if it will be Congress, the Judiciary or the voters who will push him into ignominy?
It is hard
to miss the irony: The man who whipped his followers into a frenzy with chants
of ‘lock her up’ when talking about his challenger for the Presidency is now,
according to hundreds of US prosecutors, only saved from being indicted by the
office he holds and only for the time that he can hold on to that office. The
Mueller report strongly suggests that the President obstructed justice multiple
times in an effort to derail the investigations into the Russian interference
with our 2016 Presidential election.
Irony upon
irony is that his sister, Maryanne Trump Barry, had to retire in February as a
federal appellate judge to end an investigation into whether she violated
judicial conduct rules by participating in fraudulent tax schemes with her
siblings. One sibling had to give up her job in order to stay out of trouble,
the other has to hold on to his job in order to escape indictment.
This nation
has had bad actors in the White House before and the voters cannot always be blamed:
some of them, like John Tyler and Andrew Johnson, were never elected to be
President but inherited the White House because of the untimely death of their
predecessors, William Henry Harrison and Abraham Lincoln. And we narrowly
escaped another unelected misfit in the White House when Spiro Agnew was forced
to resign in 1973 shortly before the downfall of Richard Nixon. But sometimes
the voters just get it wrong, like when they elevated people like Martin van
Buren, Franklin Pierce, James Buchanan and Warren Harding to the highest office
in the land. Incompetency, egomania and corruption appear to be the common thread
between the reasons why these men failed the nation that entrusted them with
the Presidency. Thankfully, we can take solace in the fact that none of these ‘bottom
feeders’ served more than one term. Warren Harding died of a heart attack
before he could finish his first term.
Remarkably, until
now only two Presidents, Andrew Johnson and Bill Clinton, have had to endure
impeachment proceedings. Both were impeached, but not convicted by the Senate
(conviction requires a 2/3rd majority vote in the Senate). Richard
Nixon avoided a certain impeachment by resigning his office.
While the
Judiciary has no authority to remove a sitting President from office, it has
the authority and power to convict him/her once he/she has left office for
crimes committed before, during, or after his/her term in office (but not for
acts which can credibly be asserted to be within the President’s judgment or
discretion in the execution of duties as established by the constitution or law).
In other words, our current President could be convicted, after leaving office,
if for instance he were to be found guilty of using his office to obtain favors
for his business, but not for giving orders to use military force against
people who are illegally crossing our borders even when such use of military
force results in the death of people who are crossing the border to seek asylum
in the US.
The
constitution is mute on the issue of a criminal indictment against a sitting
President. The rule that a sitting President is immune from criminal
prosecution is based merely on a Justice Department policy established in a memo
from the Watergate era and confirmed in a 2000 policy memorandum stating that “The
indictment or criminal prosecution of a sitting President would
unconstitutionally undermine the capacity of the executive branch to perform
its constitutionally assigned functions”. Note that this position was taken
under a Republican administration (Nixon) and confirmed under a Democrat
administration (Clinton). It is hard to imagine a future Attorney General (who
is a Presidential appointee) ever waiving or scratching this rule.
This Justice
Department rule has for an (unintended?) consequence that a President can
escape criminal prosecution for offenses committed during his tenure (or before
then, e.g. during his election campaign) by serving out two terms, since most
federal offenses, including obstruction of justice, are subject to a 5-year
statute of limitation. This is why House Democrats have introduced, on May 10
of 2019, the “No President is above the Law Act”, which would defer the start
of the statute of limitations period until after the targeted President has
left office. Never mind that this proposal has no chance of becoming law since
it could not survive a Presidential veto, even if it could pass the Republican
controlled Senate.
From all of
this, it is crystal clear that the designers and guardians of our
constitutional system of government have always assumed that the voters would
have the savvy to separate the chaff from the kernels and not elect a President
who would be willing to break the law to protect his/her own personal
interests. It appears that this confidence in the wisdom of the voters may be naïve
or misplaced. Too often in our history voters have overlooked character flaws
in their choice of President or fallen victim to treachery and deceit by their
chosen candidate once in office. The defense against this error in judgment by
the voters is in the impeachment provision of Article 2, section 4 of the
constitution.
In 2020, the
voters will be called to task again. Given the fact that the Judiciary’s hands
are tied, the checks and balances on an errant Presidency will have to come from
the voting public. That public would be greatly served by the House of
Representatives initiating impeachment hearings for the sole purpose of
bringing to light the pattern of self-serving transgressions committed by the
45th President, so that no voter in 2020 can say that they did not
know how badly they were served during the first term of the President they
voted in office in 2016.
