A Department of Justice policy, which has been in effect for decades, makes it nearly impossible for the president of the United States to be charged with a crime by the federal government.
As the present occupier of the White House has brought to light fissures in our democracy none had imagined there being before his tenure, that policy must be amended at once.
The policy presently reads as follows:
“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
At first look, the DOJ policy seems to have good intentions. If a president is charged with a crime, it could cause them to lose focus for their other duties as the chief executive. This could be very dangerous, particularly for their role as commander-in-chief of the military — in theory, a criminal charge could distract the president from alarming developments that threaten U.S. interests around the world or at home.
But the policy is still a dangerous one, and must be changed.
The “good intentions” aspect of the memo should remain — the DOJ should, ordinarily, caution against indicting a president, as it should only be deemed proper to do so under certain objectionable circumstances. But at this moment, the current holder of the office is abusing the privilege established by this policy. That’s not my opinion: just look at President Donald Trump’s own legal defenses for proof.
Only a dictator could claim such a thing. This makes the infamous 1973 OLC memo a model of presidential accountability ⬇️https://t.co/N3v2u4Emu6
— Laurence Tribe (@tribelaw) September 22, 2019
Trump’s legal team is suing New York to prevent his tax returns from being made available to a state district attorney, who is attempting to get access to those documents to investigate matters of fraud. In suing to prevent that from happening, Trump’s legal team candidly admitted that Trump’s crimes, if he committed any, cannot be investigated, at least until he’s out of office, the New York Times reported.
That’s a legal theory that ought to be soundly rejected — and with it, the entire notion of a president not being able to be charged with a crime, too, in federal jurisdictions, should be deemed improper.
A thought experiment, based on Trump’s own rhetoric during his 2016 presidential campaign, helps to demonstrate the audacity of this policy. If the president were to commit cold-blooded murder on a busy street in New York City, wouldn’t that render him worthy of being charged with a crime?
The president, whoever it may be, surely should have their day in court, within that thought experiment. They should be able to defend themselves, to explain the justifications for performing their actions.
But the mechanisms found within the impeachment process, or within the 25th Amendment, cannot be the sole means to hold them to account. A divided Congress could render removal impossible, and a devoted cabinet could result in the only other process for removing him highly unlikely — even if, objectionably, the president committed a crime.
So should we believe, then, that the president has carte blanche to commit any crime he or she wants? Absolutely not. Murder is murder, and the president cannot be allowed to commit a crime as egregious as that, even with the penumbra of powers the office inherently holds. Those types of actions must be held to account.
With that idea in mind, lesser crimes, with less deadly consequences, too, must be seen as prosecutorial.
Surely, there are some items that should be left alone by the DOJ. On political matters, where charges of the president abusing their office’s power may come about, the issue deserves Congressional scrutiny rather than legal review. On topics that are more subjective than objective, the DOJ should continue its longstanding policy.
But regarding objective matters where the president may commit a crime, whether figuratively or literally “in broad daylight,” the worries over interfering with their work must be brushed aside. It’s too dangerous to allow the DOJ policy, cited above, to protect a president who is willing to break the law in order to get their way.