NYMag – Last week saw a great deal of speculation about whether President Trump might either be impeached or prosecuted. The latter possibility came more into focus on Wednesday with the appointment of Robert Mueller, an FBI Director under presidents Bush and Obama, as a special counsel to lead the investigation into Russian involvement in the 2016 presidential election. Mueller will operate outside of the regular Justice Department hierarchy, allowing him to take the investigation wherever it leads.
The question of whether Trump has committed a crime while in office was amplified after it was revealed that he asked then–FBI director James Comey to back off the investigation of former national security adviser Michael Flynn’s ties to Russia. Comey did not back off, and Trump fired him two weeks ago.
To the extent that Trump himself is alleged to be entangled with Russia, his dealings with Comey (including a request for a loyalty pledge) all raise the possibility that Trump was acting to protect his own hide — and might have committed obstruction of justice.
Whatever the interaction was between the Russians, Flynn, Comey, and Trump, Mueller’s team will almost certainly keep digging until they are satisfied that they know what happened. If President Trump committed crimes, they will say so.
But what then? The criminal liability of presidents is a difficult and unsettled area of constitutional law. There are a lot of special considerations that come into play. The upshot of these considerations is that if a president has committed crimes in office, impeachment should come first. If you want to prosecute a president, you should probably wait until he is no longer president. Here is why:
- The president might have immunity from criminal prosecution, at least while in office. The Supreme Court has never addressed presidential criminal immunity, and there are arguments on both sides, so nobody has a definitive answer on this question. But there is a good argument that acting presidents do indeed have legal immunity. The Justice Department has carried on for decades with the understanding that presidents are immune. They have never brought a criminal case against a president that would have tested the theory, so the courts have never had an opportunity to render a decision.
Why might the president be immune? He is nationally elected, and constitutionally occupies a sacrosanct office. Vast swathes of the Constitution and federal law are devoted to ensuring that the president — the head of state, the head of government, and the one-man embodiment of the executive branch — is always on duty and has immediate understudies waiting in the wings. As a result, only a properly accountable agent should have the power to interfere with his ability to fulfill his duties — as an arrest, a prosecution, and a conviction would do. Congress, through the impeachment power, is a more obviously proper agent than an unaccountable prosecutor would be.
- Special prosecutors are constitutionally awkward, especially when they pursue the president. Because all of the prosecutors in the federal government are subordinate to the president, it makes sense to appoint special prosecutors when the president himself is under investigation. But nowhere does the Constitution require the use of special prosecutors, and the best reading of the Supreme Court’s case law on the matter suggests that it is unconstitutional for a special prosecutor to compromise the president’s ultimate control over the executive branch.
The most serious limit on Mueller or any special prosecutor is the fact that he can be dismissed. Constitutionally he must be removable by Deputy Attorney General Rod Rosenstein, who appointed him. The political reality is that, short of egregious misconduct, Rosenstein (and, more to the point, President Trump) cannot get rid of Mueller or end his investigation without paying a tremendous political cost. But the fact that the president has that ultimate power means that even a special prosecutor is in a poor position to prosecute him.
Citizen led Trump impeachment method. The Rules of the House of Representatives stipulate citizens can initiate impeachment.
