CHECKS AND BALANCES

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 2/3^rd 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 45^th 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.