Our system has a big flaw: the attorney general of the United States works for the president rather than at the pleasure of the legislature. This makes it absurdly difficult to deal with a rogue president who is intent on obstructing an investigation into his own criminal conduct. Consider the following in that context and try to imagine any other defendant being afforded the same privileges:
White House lawyers expect to have an opportunity to review whatever version of Robert Mueller’s report Attorney General Bill Barr submits to Congress before it reaches lawmakers and the public, multiple sources familiar with the matter said, setting up a potential political battle over the hotly anticipated document.
The attorneys want the White House to have an opportunity to claim executive privilege over information drawn from documents and interviews with White House officials, the sources said.
The White House’s review of executive privilege claims are within its legal purview, but could set up a political battle over the perception President Donald Trump is trying to shield certain information from the public about an investigation that has swirled around him since the first day of his presidency.
Let’s be clear about how we’re supposed to remove a president. There is a trial in the Senate, and if two-thirds of the Senate agrees that the president should not continue in office, then the president is convicted and must step down. While this is a political rather than judicial proceeding, the two are still analogous enough to make comparisons.
The time for a defendant to see the evidence against them is after they have been indicted. In this case, that would be after, not before, the House of Representatives has voted to impeach the president and bring their case to the Senate. The House has not even initiated a formal impeachment inquiry yet, and the White House is already demanding to see the evidence. But it’s worse than that. They’re going to prevent the prosecutors from seeing their own evidence in an effort to prevent them from even filing charges in the first place.
It should be obvious that the White House will see what Mueller has produced the second the public sees it. If Republican members of Congress see the case before the public, they will immediately leak it to the White House. Trump is already going to have an advantage over a normal defendant because he’ll be able to begin the fight before any decisions about indictments have been initiated, let alone finalized, and he can do so armed with the same information that the “grand jury” possesses.
In any case, the impeachment process in the House is mostly public. The Republicans will have a seat at the table there and will be part of the “grand jury.” This process is normally kept private for good reasons, including that criminals shouldn’t get advance warning about the evidence that is being collected against them lest they take actions to cover their tracks.
We’ve been arguing for two years about whether the president can fire the people who are in charge of managing the investigation against him or whether he can pardon people as a reward for failing to cooperate with the investigators. It’s mostly agreed that the president is immune from criminal prosecution while in office. These amount to huge shields that protect a president from scrutiny and accountability. When we add in that he can demand to see the evidence before Congress sees it and that he can in some ways limit or control what evidence Congress will see, it gets to be something more than a shield or a barrier. It’s a system that just doesn’t make sense.
I know that it’s difficult to find the right solution and that the independent counsel law had its own problems. I also know that the kind of solutions I think might work would require amending the Constitution and are very unlikely to happen. But this system is rife with absurdities and it’s an embarrassment for our country.