After Helsinki, can the president be put on administrative leave?

After Helsinki, can the president be put on administrative leave?
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President Donald Trump’s performance in Helsinki with Russian President Vladimir Putin remains Topic A in conversations. And it should.

That he clumsily sought to repair his timid defense of our electoral system was simply ineffective because it was so obviously scripted. He often benchmarks his achievements against predecessors — and his disquisition on “would” versus “wouldn’t” outdistances former President Clinton’s parsing of the word “is.”

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Why continue to raise this? Because it matters more than who owns the House and the Senate after the midterm elections, whether Brett Kavanaugh is confirmed for the Supreme Court, whether American farmers and manufacturers survive the retaliatory tariffs provoked by Trump’s trade war. In a peculiar way, it might even outweigh whatever special counsel Robert MuellerRobert (Bob) Swan MuellerFox News legal analyst says Trump call with Ukraine leader could be 'more serious' than what Mueller 'dragged up' Lewandowski says Mueller report was 'very clear' in proving 'there was no obstruction,' despite having 'never' read it Fox's Cavuto roasts Trump over criticism of network MORE may report about presidential collusion.

 

Elections matter. That’s why Trump’s failing to call out Putin’s manipulation of U.S. sources of information, let alone Russian hacking and theft of campaign emails and analytics, is so deplorable. Yet, Trump has shown no understanding of how greatly he failed his fellow Americans. Whether or not Mueller has enough bad-intent evidence to show obstruction pales by comparison.

Insightful conservative columnist Ross Douthat, of The New York Times, advises that he is “waiting for the Mueller investigation to finish.” Why? Because, according to Douthat, “the nature and scale of the disgrace can’t be assessed without a certainty about Trump’s motives that's somewhat out of reach.”

With respect, Douthat is mistaken. His motivational standard is looking for hard evidence of a crime. And, indeed, it is Mueller’s function to ascertain whether garden-variety crimes such as obstruction, perjury and various Title 18 offenses amounting to the corrupt sale of office have been committed by the president or those around him; Mueller is not charged with finding “high crimes and misdemeanors.”

While the word “crimes” is used in that constitutional formulation, it has been understood from the beginning of our nation to not be limited to formal crimes but instead to be focused upon the disregard, abuse or disavowal of the presidential duty to “faithfully” execute the laws. That is why the Helsinki press conference is so damaging; it is videotape evidence of presidential disregard for the integrity of the democratic function. It is electoral infidelity.

If Mueller reports that the president had an insufficient intent lacking the mens rea necessary for a completed crime of obstruction, or even accessory after the fact to the Russian theft of Democrats’ emails, that still leaves unaddressed the president’s suitability to continue in office.

Turning to that issue, Douthat sketched three possible ways to understand Trump’s underlying motivation for kowtowing to the Russians on international television.

His first theory is that Trump is just being Trump; everyone knew he was self-serving, sleazy and held an untutored understanding of world alliances, writes Douthat. True, but whether or not “we the people” were snookered into accepting a deeply flawed individual as our president does not stop us now from coming to terms with the harms of his presence in the Oval Office.

Douthat’s second theory concedes evidence of Trump functionaries, from family such as Donald Trump Jr.Donald (Don) John TrumpTrump says he doesn't want NYT in the White House Romney earns rants and raves for secret Twitter name DOJ: McGahn, Trump Jr. did not testify before Mueller grand jury MORE to much lower hangers-on, demonstrating a willingness to collude with shadowy figures in exchange for damaging information on his opponent, Hillary ClintonHillary Diane Rodham ClintonSanders: 'Outrageous' to suggest Gabbard 'is a foreign asset' Clinton attacks on Gabbard become flashpoint in presidential race Saagar Enjeti: Clinton remarks on Gabbard 'shows just how deep the rot in our system goes' MORE. Despite this evidence, Douthat concludes that the emails were of little use and the stolen statistical analytics were useful but unnecessary for Trump’s victory. Here, he conflates Mueller’s criminal inquiry with the congressional responsibility to assess whether or not an impeachable offense should be charged against the president. Douthat finds collusion to be impeachable if, but only if, Trump knew enough about the stolen materials “to inform his firing of [former FBI Director James] Comey.”

This mistakenly suggests that impeachments necessarily involve cover-ups. Every case of impeachment does not have to be like Richard Nixon’s. Furthermore, Nixon was targeted more because of his misuse of governmental power to punish political adversaries than whether or not he knew in advance of an ill-conceived break-in by ne’er-do-wells. So, too, it would be wrong for President TrumpDonald John TrumpTrump says he doesn't want NYT in the White House Veterans group backs lawsuits to halt Trump's use of military funding for border wall Schiff punches back after GOP censure resolution fails MORE to hide the malfeasance of his supporters by, for example, drafting materials that seem to understate Trump Jr.’s participation in a meeting with Russians — but it is far more serious for Trump to excuse Russian manipulation of our elections.

Douthat’s third theory is that Trump was turned toward Russian interests years before his pursuit of the presidency. Individuals caught betraying their country in this way often are escorted to their treasonous path as a consequence of blackmail, bribery or both. Without Trump’s tax returns, those sources of corruption will be difficult to document. What is not difficult to document is Trump acting like a Muscovite by his exclusion of his American advisers, and the American public, from his conversations with Putin in Helsinki and, earlier, with the Russian foreign minister in the White House.

Which returns us to the general tenor of the press conference and its disclosure of how, at least in that instance, the president put America second, maybe third, behind Russia and himself. Perhaps this ordering was idiosyncratic — but how can we be certain other, less visible “deals” being made by the president with Russia at this very moment are in our national interests?

Might not waiting for Mueller be insufficiently protective of those interests? After the embarrassment of Helsinki, is there not a need for immediate protection from a wrongly motivated president?

We are way past government-as-usual time; we need some mechanism of administrative leave for the president.

America’s well-being is not dependent upon the success of a single political party. This is the reason partisan bickering is said to end at the shoreline. In that spirit, might leaders of both parties consider pursuing a path to place President Trump effectively on administrative leave?

While surely not a vote of confidence, administrative leave carries none of the condemnation of impeachment, none of the jail time associated with criminal conviction. Indeed, administrative leave is how businesses and governments secure the status quo while investigating possible corporate or public wrongdoing.

There is no equivalent administrative leave mechanism for presidents. The 25th Amendment allows for substitution of the vice president as acting president when a president cannot discharge his duties. While the amendment’s language seems to contemplate any disability, its usage since passage in the late 1960s has been confined to physical limitations. It would not be constitutionally prudent to test its limits in the extraordinary context where the president’s words and actions have cast doubt upon his national loyalties.

Nevertheless, a form of administrative leave could be achieved by other means — but it would necessarily require a level of bipartisanship seemingly consigned to earlier generations. Specifically, with bipartisan agreement, it is possible to contemplate delaying legislative action on President Trump’s nominations, executive orders or legislative initiatives for the duration of the leave.

And how long might that be? On that, your guess is as good as Ross Douthat’s.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.