“No one is above the law.” Well, that myth was emphatically dispelled in 2019 when Special Counsel Robert Mueller unveiled his report on the investigation of Donald Trump and the Russia connection.
Mueller reported ten probable instances of Trump obstructing justice but indicated that he was not moving for an indictment because a sitting president cannot be charged with a federal crime while in office.
Wow! I thought. That means the president is above the law! Should that be the case in a democracy? Where did that come from?
This stipulation that a sitting president is above the law comes from a legal opinion issued by the Justice Department’s Office of Legal Counsel (OLC) in 2000, resulting from the cases of Presidents Nixon and Clinton.
Presidential criminal immunity has no grounding in actual law. It is not in the Constitution or any federal statute, regulation, or judicial decision.
Supporting my question about whether an office in the Justice Department had the power to rule on such a matter, the Project on Government Oversight issued a statement at the time that Mueller was incorrect, that the president is not above the law, and that Congress should investigate the legal presumption laid out by OLC. Congress should also determine whether the ten instances of possible obstruction of justice are or are not impeachable offenses.
I was aghast that Congress did not investigate, and that few leaders argued that they should. How could the United States have the Department of Justice find ten instances of possible obstruction of justice and not prosecute the offender when other countries routinely prosecute their leaders when they violate the law?
- The Prime Minister of Israel, Benjamin Netanyahu, was indicted in 2019 on bribery and fraud charges.
- Italy indicted its Prime Minister, Silvio Berlusconi, in 2014 on charges deriving from a sex scandal.
- In 2015, Romania’s Prime Minister, Victor Ponta, was indicted on corruption charges.
- In 2020, Slovenian Prime Minister Janez Jansa was indicted for abuse of power in real estate deals.
These are not lawless countries, as they average 86.5 on the Global Freedom Index compared to 83 for the United States even after including the laggard Israel which scores a 77.
So why would we hold a president above the law while in office?
Some legal scholars using the separation of powers issue argue that the president cannot be subject to prosecution by state or federal systems while in office. They must be removed first by impeachment, the voters, or the expiration of their term.
On the other hand, other scholars analyzing the constitutional text, the Framers’ debates, historical precedent concerning other federal officials, and policy arguments find no support for such immunity.
I support this latter view—the president should not be above the law.
What if? Suppose Congress had ruled against the DOJ stipulation for presidential immunity from criminal indictment. In that case, we might have had a trial and a conviction by now, and we would not be so perilously close to having totalitarianism with the reelection of Donald Trump.
A few arguments against presidential immunity mention that one president had been arrested and fined in 1872. He was President Ulysses S. Grant. The arresting officer was African American William Henry West, a formerly enslaved person and a Union soldier. The place was the corner of 13th and M streets in Washington.
West was patrolling the area a day after a woman and her 6-year-old child were seriously injured by galloping horses. Grant barreled through the same intersection with his horses, and West stopped him. Grant was apologetic to the officer. However, the next day, West caught Grant speeding through the same intersection, leading several teams of horses.
This time, Grant would not be let off the hook. “I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman,” West said as he recounted his conversation to the local newspaper. “But duty is duty, sir, and I will have to place you under arrest.”
At the police station, Grant put up his $20 so he would not have to spend the night in jail. They let him pay a fine and walk back to the White House.
It was a small-scale arrest and fine, but an arrest, nevertheless.