Why A President Should Never Be Above The Law
The idea that a sitting president can’t be indicted has never been tested. If it becomes legal precedent, say goodbye to democracy
Update December 9, 2018: Since this piece was written, President Trump has been implicated in at least two felonies.
During the scandalous and confusing years of Watergate, a perplexing and unusual question rippled through the American justice system. Could a sitting president be indicted for a crime just like anyone else? A brief signed by then-Solicitor General Robert H. Bork said that sitting presidents are immune from prosecution. Decades later, a review from law professor Ronald Rotunda for Kenneth Star disagreed with this take. Since Nixon resigned before articles of impeachment could be drawn up, and Clinton was acquitted in the Senate, we never actually got a firm answer. With Trump, we just might, setting a firm precedent for the future, and we better hope the answer is yes.
Now, I’m no slick, big city lawyer, or any kind of lawyer for that matter. (I’m a computer scientist by education.) But I have lived in Ukraine, where courts packed with lackeys and toadies answered a similar question in the negative and know what happens afterward. At stake is the obvious question of what constitutes rule of law. If we have it, then no citizen of the country is allowed to get away with a crime, even temporarily, and everyone, from a petty thief caught pickpocketing old ladies, to the commander-in-chief, must answer for their misdeeds. If we don’t, your wealth and political connections determine whether you are even threatened with punishment.
You could argue that in America, that already happens. Minorities and the poor face more arrests, convictions, and longer jail terms than the wealthy majority. And while this is indeed true and disturbing, and as much as this topic needs to be discussed, it’s tangential to the main issue, the question of whether political office, not just skin color or bank account value, can be used as an honest to goodness, literal get-out-of-jail card even for high crimes and misdemeanors. Because if it does, then democracy will die overnight since a court system to which those in power are no longer accountable is the final step in every autocracy or dictatorship cementing their power over the long term, dismantling the very concept of separation of powers.
It gives criminals every incentive to barge their way into high office, then, to preserve their place, intimidate and silence the opposition. Imagine if Trump couldn’t be indicted for money laundering until he stepped down. He would unleash his followers on every opposing politician and pressure the DOJ to investigate and disqualify them. This is the same thing that happened to the popular Russian lawyer and investigative journalist Alexei Navalny when he tried to challenge Putin. He keeps getting attacked and jailed and has been slapped with a criminal conviction that bars him from running for any public office, despite the case against him being questionable, to put it mildly.
Despite GOP’s voter suppression and gerrymandering efforts over the years allowing them to essentially secure minority rule, there’s still the ability to vote them out with extreme turnout and winning key state offices capable of redrawing districts to make them more fair and do away with laws meant to intimidate and burden voters to discourage them from voting. Adding threats of prosecution and jail time for the slightest crime, real or imagined to bar an opponent from running, or targeting their key campaign members, would be the next logical step for politicians desperate to stay in office to avoid paying for their sins. They would also have incentive to rig elections against their political or influential rivals in other districts and states, making sure their competition ends up in jail.
In short, granting political office holders immunity from prosecution, then relying on their colleagues to remove them would turn America into Russia and render our elections meaningless. The names that appear on the ballot and how the votes are tallied would be decided behind closed doors, guaranteed to provide a desired result. Your participation in the whole charade would be nothing more than flattering optics for a regime riddled with unchecked corruption and crime as the courts whistle and use their gavels as fidget spinners, busily looking the other way, or eagerly helping a friend get rid of an opponent or critic for a favor or bribe.
In Italy, Silvio Berlusconi, a.k.a. Prime Minister Bunga Bunga, tried a more sophisticated tactic. Once a crime in which he was involved was discovered, he would try to change the law to shorten the statute of limitation, and by a fortunate stroke of luck, the plaintiffs couldn’t move forward because the crime was now too old to be investigated or tried. This allowed him to keep a firm grasp on power despite acting like a debauched frat boy, having sex with underage escorts at his lavish parties, and running the Italian economy into the ground. The damage he inflicted was so long-lasting, the country is still in cleanup mode and desperate enough to again ask the very man whose antics helped drive them into their economic ditch to come rescue them.
Clearly, the bottom line here is that while a sitting president under a criminal indictment would cause all sorts of massive headaches and disruptions for the ship of state, allowing certain elected officials a free pass solely not to have to deal with these problems would do many orders of magnitude more damage to the nation as a whole. There’s a reason so many countries want to partner with us, and so many international corporations want a presence in America, not Russia. If things go wrong, they have a way to address their grievances, and they can rely on the word of our leaders. If they now have to pay bribes to officials immune from any kind of legal action, or know they’ll have to handle a nasty trade dispute themselves, they’ll refuse to take the risk.
Likewise, people who feel trapped and facing the economic stagnation that so often accompanies authoritarianism unless they have connections to certain party members or the ear of a powerful oligarch will simply leave. Those with desired skills and education, as well as the resources to set themselves up in a new, freer, more egalitarian country, will go first, and those who will be left will lack the desire or the ability to fix their homeland’s problems. If America is going to go down the same road as Russia and its former satellites, Canada, Germany, France, and China will begin to take over the global order. To some extent, they’re already doing that and expanding their spheres of influence, filling in a power vacuum left by Trump’s venom towards our allies because, in his poorly informed worldview, their recent successes come at our expense.
No matter what the current investigations into his Russia ties and finances will uncover, even if it’s nothing, letting them proceed and holding him and his party — which has now resorted to conspiracy-mongering and attacking our own law enforcement agencies — responsible for their attempts to obstruct the investigators’ work is critical to our democracy. They cannot be allowed to suppress the investigators’ findings, or declare that a president has both legal immunity and the power to pardon himself in response to damning evidence. We’re at a very dangerous crossroads right now, and how we navigate this year will be felt for decades to come and determine if we move forward as a free nation, or an authoritarian fiefdom of our least scrupulous citizens.
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