Yes, it would be constitutional. But so what?
I have an Op-Ed in the New York Times today with a headline you’ve seen 1001 times before: “Would Indicting Trump Be Constitutional?”
My answer to that question is yes, it would be–even while he’s in office. And I briefly explain why I think my old office, OLC, was mistaken to conclude otherwise in 2000. (As the Op-Ed notes, I wasn’t involved in that opinion.)
But the primary point of the Op-Ed is to say: So what?
Everywhere one turns these days–including on this and other blogs–everyone is constantly speculating whether Donald Trump committed any criminal offenses and, if so, whether, when and where he might be tried (or impeached) for them. Take last week’s sentencing memoranda about Michael Cohen. Naturally, everyone is wondering what it means in terms of Trump’s possible wrongdoing: Did he violate campaign finance laws in directing Cohen to make undisclosed payments of hush money? Was he party to possible fraud or money laundering in connection with the Trump Organization’s reimbursements to Cohen? To Cohen’s cover-up of Trump’s own “Moscow Project”?
Every new revelation in the Mueller and SDNY investigations, every new indictment and sentencing, starts such feverish speculation afresh.
In my Op-Ed I try to explain why such focus is misplaced. Although it’s surely important for several other reasons to uncover just what Trump did or didn’t do, especially in his relationships with Russia, there’s not much practical importance in answering the question whether Trump did or didn’t satisfy the elements of any particular criminal offense, or in debating whether an indictment, let alone a trial, would be constitutional.
Worse still (or so I argue!), the understandable but inordinate focus on those questions–about Trump’s potential culpability for past actions (especially those that preceded his presidency)–is an unfortunate distraction from the most significant question the Mueller investigation was designed to answer, namely, whether Trump is compromised in a manner that prevents him now, and going forward, from adequately addressing the Russian threat to the U.S. election system. [A welcome counterexample is this post by Alex Finley, Asha Rangappa and John Sipher, explaining that “making this merely about the bright line between illegality (criminality) and legality means that most Americans are missing what is right under our noses.”]
Our primary focus, in other words, ought to be on whether Trump is capable now of performing his duties as President–on whether and how Trump might be compromised when it comes to Russia–rather than on whether his conduct during the transition and campaign (and earlier) crossed the criminal line or was “merely” sleazy and shockingly inappropriate.
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In a companion post I’ll fill in a few details about why I think it’d be constitutional to indict Trump while he’s in office. But first, here’s the bullet-point version of why I think that question doesn’t much matter, adding a couple of points that I didn’t have room to include in the Times piece.
1. There’s little dispute that a former president can be subject to a criminal trial, even for offenses tried for offenses that occurred during his term.
2. It would probably be unconstitutional, however, to try a President while he or she is in office–or, in any event, the Supreme Court would almost surely so hold. That’s the subject of 90 percent or so of the 2000 OLC opinion, and I think it’s on fairly solid footing on that score. (Indeed, it’s an excellent opinion, even though I disagree with its conclusion as to indictment rather than trial.)
3. Even if (as I argue in the Op-Ed) it would be constitutional to indict a sitting President–with the trial postponed until after he or she leaves office–the prospect of that ever happening in the federal system is close to nil, and that’d be the case even if OLC had never opined that it’d be unconstitutional. The functional reasons OLC offered for its constitutional holding (more on those in the follow-up post) aren’t sufficient to establish a constitutional prohibition, but they’re genuinely serious and would almost surely deter any Attorney General (or even a hypothetical special counsel who might not be subject to AG superintendence on that question) from seeking to indict a President while he or she is in office . . . unless . . .
4. … unless an Attorney General were faced with an extraordinary case in which immediate charges were essential — in particular, if a president committed an especially heinous crime that demanded justice and/or punishment (not merely approbation in Congress, the ballot box and court of public opinion) and he refused to waive what might otherwise be an effective statute-of-limitations defense. In such a case — and probably in that case alone–the AG could, and should, overrule OLC’s holding and seek a grand jury indictment, although the AG in such a case would probably seek to have the indictment sealed until the President leaves office.
What this implies–but what I didn’t have room in the Times to flesh out–is that the principal reason an AG and/or special counsel might ever consider indicting a sitting President is in order to preserve the prospect of an unprecedented trial of a former President, where the statute of limitations might otherwise preclude the grand jury from acting at the later date. And in such a case, the AG’s first step, before asking the grand jury to bring the charges, should and would be to (quietly) ask the President to waive the statute-of-limitations defense (and a speedy trial defense, if necessary) in exchange for a promise to forebear indictment until after the President leaves office. Most Presidents would, of course, take that deal . . . in which case there’d be no indictment until later, even in this extreme hypothetical case.
5. To be sure, it’s theoretically possible that a federal grand jury might act unilaterally–say, at the urging of the judge–to bring charges during a President’s term even without prompting by the Department of Justice, or over DOJ’s objection. I find it difficult to imagine the circumstances in which that would happen, however–in which a grand jury wouldn’t accede to the AG’s request to wait until after the President leaves office (or at a minimum seal the indictment).
6. The more likely way we’d see an indictment during Trump’s term is, of course, if a state prosecutor (and/or a state grand jury, where applicable) brought charges under state law. I have no idea whether any state prosecutor has developed conclusive evidence that Trump violated any state laws–something that (perhaps) remains to be seen. Presumably the most likely scenario for such an indictment is if Trump violated state tax laws before he took office. I also have no idea whether there’d be statute-of-limitations or other reasons for a state prosecutor to bring an indictment while Trump is President, rather than waiting until after his term.
Therefore I don’t have a good sense of the chances that we might see a state indictment of Trump while he’s in office. If we do, however, I think it’s important to note three things about those charges:
a. The question of whether such an indictment is constitutional would probably be academic: I’m positing a case in which, e.g., a state Attorney General has decided OLC was wrong and has actually brought charges against Trump, and announced it to the world.
I suppose Trump could at that point move to have the charges quashed on constitutional grounds, but what would be the point of that? After all, and as I explain in the Op-Ed, the constitutional case against an indictment of a sitting President depends almost entirely on the idea, fleshed out by OLC, that because the President couldn’t be tried while in office, an indictment would subject him the “stigma and opprobrium” of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law — a sword of Damocles that could undermine the president’s “respect and stature both here and abroad” and thus impact his ability “to act as the nation’s leader in both the domestic and foreign spheres” (the quotations are all from the OLC opinion). But if a state prosecutor and/or grand jury has already announced the charges, that (allegedly constitutionally dubious) damage is already done–there’s no putting that genie back in the bottle.
b. As noted above, any trial would almost certainly have to be postponed until after Trump leaves office. (If the state authorities didn’t agree to do so, the Supreme Court would probably insist upon it.)
c. The fact that Trump had been indicted by state officials shouldn’t–and probably wouldn’t–affect the odds of him being convicted by the Senate in an impeachment trial. Of course Congress might take into account the actual conduct that’s the basis for the state charges and assess whether that is a high crime or misdemeanor and, if so, whether it warrants the extraordinary remedy of removal from office. But it shouldn’t matter much for those purposes whether or not a state officer has chosen to bring charges–the conduct either warrants removal or it doesn’t, and that question shouldn’t turn on the existence or absence of an indictment.
7. Which leads, finally, to a few words about impeachment, which I didn’t discuss in the Op-Ed. I recognize, of course, that an indictment might change the political calculus in Congress–it might affect the House’s willingness to bring impeachment charges and/or the willingness of at least some Senators to vote to convict and remove Trump. And in that respect an indictment could be of practical significance. However:
— the existence of the indictment shouldn’t bear on the question of whether the evidence supports the charges (i.e., members of Congress would be wrong to defer to the assessment of the state prosecutor and/or grand jury);
— as I noted just above, the fact of the indictment shouldn’t be decisive on the question of whether the conduct in question, if proved, was a high crime or misdemeanor for purposes of impeachment and Senate trial;
— indeed, whether the conduct was a high crime or misdemeanor doesn’t depend on whether it constituted a violation of state or federal law at all, which is another reason why the recurring fixation on whether Trump satisfied the elements of any particular criminal offense is largely misplaced (concededly a contested question, but further discussion will have to await another day);
— the existence of the indictment shouldn’t have much effect on whether Trump’s conduct warrants the Senate’s removal of him from office. (Unlike some commentators, including Cass Sunstein in his recent book, I don’t think that a Senate finding of a HC/M requires the Senate also to convict and remove the President: I agree with Joshua Matz and Larry Tribe (and Charles Black, of course), that a finding of a high crime or misdemeanor is necessary but not sufficient for conviction and removal.)
All of that is very interesting fuel for thought, but I don’t think it matters very much, at least for now. Absent some extraordinary change of events–revelation of conduct far more troubling than what any state prosecutor would presumably include in an indictment–there simply aren’t 20 Republican Senators (perhaps not even a single Republican Senator!) who would vote to convict Trump. I agree with many of you that such continuing, lockstep partisan support for Trump, no matter how often he demonstrates his unfitness for office, is deeply troubling, and I wish it were otherwise, wholly apart from the question of impeachment. But that doesn’t change the fact that the nation today–in which 40-43% or so of the electorate is devoted to Trump come hell or high water–is nowhere close to being where it would have to be to make a Senate conviction a serious prospect. A state law indictment–say, for tax fraud–isn’t going to change that. Not, anyway, enough to count to 67.
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All of which is to say that the 2020 election is where the action is. An indictment of Trump–and the attendant prospect of trial after he leaves office–might affect that election, in ways that are impossible to assess in advance. And therefore whether such an indictment would be constitutional, and whether it might happen regardless of the constitutional assessment, are not wholly insignificant questions. As I argue in the Op-Ed, however, we’d do well to shift our focus to matters of more pressing importance–in particular, to what the Mueller and related investigations might tell us (and/or Congress) about Trump’s continuing capability of performing his constitutional duties and functions on the nation’s behalf, and whether and how Trump’s relationships with Russia might compromise his ability to protect and defend the nation.
Originally published by the Just Security, 12.12.2018, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.