Sitting Presidents Must Be Indictable To Avert A Constitutional Crisis

Most of the discussion around impeachment and the Mueller investigation has involved two matters: the electoral implications or the simple possibility that an openly criminal and compromised president might continue in office after surviving a Senate trial for purely partisan reasons.

Until recently, less thought has been given to the consequences of a president who must remain in office to maintain his personal freedom. It’s a situation we more commonly associate with foreign dictators, in which the interest of justice must surrender to their incentive to maintain their grip on power. Now we have to deal with the possibility of a similar situation in the United States.

The multiple investigations into Trump’s wrongdoing have raised the likely possibility that, regardless of the outcome of the Mueller inquiry into Russian collusion, the president will face myriad legal consequences arising from other inquiries into financial crimes, campaign finance fraud, obstruction of justice, and other felonies under the auspices of other law enforcement bodies, such as the Southern District of New York.

The famous Justice Department memo outlining a standing policy that it will not indict a sitting president has resulted in an intolerable situation, expressed most recently by legal analyst Elie Mystal: the president may need to win re-election just to keep himself out of jail.

This is clearly unsustainable. First, it means the president is functionally above the law as long as he remains president–a fundamentally un-American principle. Second, it creates the most perverse incentives for the president to commit as many crimes as necessary to hold office since no consequences will befall him as long as he holds power. It’s almost a guarantee of dictatorship. Third, it discourages the peaceful transfer of power: the specatacle of a sitting president who lost re-election, or came to the end of his term, waiting down his final hours in office only to to be handcuffed afterward is comically absurd; it would tear apart an already divided nation.

If the president committed crimes worthy of indictment, the president should face the consequences for those crimes whether he remains in office or not. If there is no political will to impeach him, the vice president should assume the duties of the office so long as the president–who can presumably secure bail–remains on trial.

Certainly, the prospect of a sitting president making bail and continuing to serve in office while on trial would be extraordinary. That’s part of why a political party refusing to impeach a criminal president is so dangerous.

Even so, sitting presidents must be indictable while in office, and there’s no time like the present for the Justice Department to change its current misguided policy. Hoping that this situation will resolve itself cleanly–and never arise again–is not a responsible choice.

David Atkins

David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.