A presidential plea deal is better than impeachment

Things are heating up with Robert Mueller’s criminal probe of Russia’s interference with the 2016 presidential election. And the Trump campaign’s ties to that Russian effort continue to prompt questions, including whether — if the evidence shows that he violated the law — the president himself could be held accountable in the criminal justice system. 

President TrumpDonald John TrumpHouse Republicans move to block Yemen war-powers votes for rest of Congress Trump says he's considering 10 to 12 contenders for chief of staff Michael Flynn asks judge to spare him from jail time MORE’s personal attorney has publicly declared that his client cannot as a matter of constitutional law be charged and prosecuted for obstruction of justice. Is he right?

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This is a highly complex legal question, to be sure. But the likely answer is no, for a number of reasons. To make it short, it is hard to persuasively dispute that the president is not above the law under the Constitution, and that he can certainly act in ways that would legally amount to obstruction of justice.

 

Whether impeachment is the exclusive constitutional route to presidential accountability is doubtful as well, although like much of the Trump presidency, nobody knows for sure what the Supreme Court would say. 

But more to the point, if this president did, in fact, obstruct justice or violate any other criminal law, the tea leaves suggest that, strategically, neither a public indictment, criminal trial or an impeachment trial are likely. The better course for the country and the Trump family would be for the president to give serious consideration to resignation and a plea deal.

Mueller’s predecessors both considered the question of whether a president can be prosecuted and indicted while in office. Both answered yes.

In 1998, Ken Starr’s office analyzed whether President Clinton could be indicted after deputies advised him that they had gathered enough evidence to ask a grand jury for an indictment. Starr’s legal ethics counsel concluded that a sitting president is subject to indictment and criminal prosecution, but that he might not be subject to imprisonment during his term. 

In 1974, Leon Jaworski’s office concluded the same thing about President Nixon: he could be indicted. The question is not a slam-dunk, however, so Jaworski named Nixon an “unindicted co-conspirator” in an apparent ploy to avoid a constitutional showdown.

For its part, the Supreme Court held in 1997 that Clinton could be subject to a private civil lawsuit while in office. That effort ultimately led to his impeachment. The Department of Justice’s Office of Legal Counsel concluded in 1973 and again in 2000 that a criminal prosecution would undermine the executive branch’s ability to perform its functions, in the wake of Clinton v. Jones.

Trump cannot viably claim that Article II of the Constitution fully insulates him from legal interference with his ability to do his job as president. The question may come down to whether a criminal prosecution is somehow different from a civil claim for money damages, and the Supreme Court would no doubt consider these historical views if Trump’s sky were to fall and the issue to reach the court.

In any event, Mueller’s team of career prosecutors will want to see justice done, and it appears that this Republican Congress is ideologically disinclined to take a hard look at impeaching any Republican president, regardless of the charges. Thus, Mueller might do well to avoid a lengthy legal battle over the constitutionality of his prosecutorial authority, and strike a deal with Trump. This maneuver assumes, of course, that Mueller is able to compile an evidentiary dossier of criminal wrongdoing that would put serious pressure on the first family to do a deal.

Nobody but Mueller’s team knows for sure what evidence it has (if any) that implicates the president of the United States in criminal wrongdoing. But we do know that Trump’s sons and son-in-law — to some extent, at least — are entangled in the Flynn drama that led to his perjury plea. Nixon and Clinton had their own hides to save. Trump also has family members to think about, and an impeachment process won’t cover them. The Trump children change the stakes in this particular game, and Mueller has shown through Flynn’s son that he is willing to go down the familial path.

If the evidence does wind up leading to the White House, therefore, the best outcome for the Trumps might be the president’s resignation and their respective plea(s) to something relatively trivial. (That would still leave the New York Attorney General investigation of Trump’s dealings out there, but Mueller could try to broker a global resolution.) 

Flynn’s fate is perhaps premonitory. If all that Mueller had against Flynn was a perjury charge, it’s unlikely he would have agreed to plead guilty at this juncture. With the whiff of a presidential pardon in the air, all Flynn had to do was call Mueller’s bluff, force a trial on a diminutive charge, accept a pardon, and paint the entire investigation as much political ado about nothing.

Given the tight-lipped ethos of the Mueller operation, we are living in the world of speculation, to be sure. But with Mike Flynn Jr. in the mix, it seems more likely that his dad struck a deal — and one that suggests he has information that hurts people up the chain of command.

At the end of the day, as the harsh realities set in for Trump, a constitutional conundrum over whether sitting presidents may be criminally prosecuted could remain but a theoretical footnote in American history.

Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater investigation and the author of the forthcoming book “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”