Bob Bauer, White House counsel for President Barack Obama, points out the dilemma presented by the revelation that special counsel Robert S. Mueller III plans on writing a series of reports on President Trump, including his conduct in office. He explains:
… by relating the need for the president’s testimony to the reporting function, Mueller seems to have implied that the president’s testimony is required only for a report—not as the final step in a reaching a decision about indictment. While it is difficult to read too much into this one press account, Mueller apparently did not tell the Trump lawyers that with this information, he could bring a conclusion to the investigation as it concerned the president.
Bauer argues that because of the operative Office of Legal Counsel memo finding you cannot indict a sitting president, we face the prospect of a president crippled by the prospect of criminal charges. Bauer observes:
The OLC concluded that a criminal indictment would sap the president’s credibility; the “stigma” of a criminal charge would damage his standing as the nation’s head, with consequences in foreign as well as domestic affairs. The requirements of defending himself would operate as constitutionally impermissible distractions from the conduct of the nation’s affairs.
But if the special counsel submits to the Deputy Attorney General a damning conclusion about the president’s conduct, and Rosenstein elects to disclose it “in the public interest,” the public will know that, absent the special immunity crafted by OLC, the president would have been indicted. It is difficult to see how the president will have been spared to any significant degree the “stigmatization” and distraction that OLC believed would follow from indictment. He would stand accused, but the country would be denied an adjudication for years to come. His presidency would continue for years under an untested prosecutorial judgment.
There are two important considerations Bauer does not raise.
First, the aversion to indicting a sitting president is not based only on the issue of “stigma” and distraction. Indeed, the OLC cited three reasons not to indict a sitting president: “(a) the actual imposition of a criminal sentence of incarceration, which would make it physically impossible for the President to carry out his duties; (b) the public stigma and opprobrium occasioned by the initiation of criminal proceedings, which could compromise the President’s ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs; and (c) the mental and physical burdens of assisting in the preparation of a defense for the various stages of the criminal proceedings, which might severely hamper the President’s performance of his official duties.”
If a president is indicted, then tried and convicted, he might be prevented from conducting his constitutional duties. He cannot very well perform his job from a jail cell. Impeachment is the only specified method in the Constitution for disabling the president (aside from the 25th Amendment).
Unlike a matter of civil litigation, a criminal case places much greater demands on the defendant (“Once criminal charges are filed, the burdens of responding to those charges are different in kind and far greater in degree than those of responding to civil litigation. . . . [A] criminal prosecution would require the President’s personal attention and attendance at specific times and places, because the burdens of criminal defense are much less amenable to mitigation by skillful trial management. Indeed, constitutional rights and values are at stake in the defendant’s ability to be present for all phases of his criminal trial.”
In other words, there are perfectly good reasons a sitting president should not be indicted, quite apart from stigma, that would accompany a prosecutor’s report of the type Mueller may be contemplating.
Second, the president doesn’t necessarily need to linger in office. Impeachment is the constitutionally approved method of ejecting the president after the issuance of a damning prosecutor’s report spelling out the basis for future prosecution. If Mueller spells out credible, detailed evidence that could be used to indict Trump after he leaves office, how could Congress avoid the conclusion he has committed a “high crime” or “misdemeanor”? The prospect of a damning prosecutor’s report hanging over the president’s head only exists if Congress fails to do its job seriously. The problem is not the report or the lack of indictment but Republicans’ infidelity to their oaths of office.
The good news is that there is a remedy in November — the midterm elections. A blue wave would wash out to sea Republicans unwilling to perform their duties. Democrats can then exercise serious oversight and, if warranted, commence impeachment proceedings.
Read more by Jennifer Rubin:
Michael Cohen’s view from under the bus: Trump denies knowing about Stormy Daniels payment
Have we won the trade war yet?
Republicans’ midterm prospects going from bad to worse
