Special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE potentially faces a critical choice: indict the president of the United States or defer to Congress and let it decide on impeachment. Some argue that sitting presidents cannot be indicted for a crime; impeachment precludes that option. In reality, the two operate together as checks upon abuse of presidential power.
Sentencing memoranda in the Michael Cohen case appear to implicate President TrumpDonald TrumpOvernight Defense & National Security — The Pentagon's deadly mistake Overnight Energy & Environment — Presented by Climate Power — Interior returns BLM HQ to Washington France pulls ambassadors to US, Australia in protest of submarine deal MORE in illegal campaign expenditures and Russian involvement in the 2016 elections. Assuming these facts are correct, there may be enough to indict the president. Yet, a Justice Department memo suggested sitting presidents could not be indicted, leaving impeachment as the only option. But there was no way a Republican-controlled House and Senate would impeach and try Trump.
The November elections have changed Mueller’s options somewhat; House impeachment now is a possibility when Democrats take control in January. But there are reasons to think that the Justice Department memorandum was wrong and that the Constitution does not prevent indictment as an option.
As a professor and scholar of constitutional law, I tell my students there are several ways to interpret constitutional meaning. The first is the plain language or text of the Constitution; when all else fails, start by reading the words. Article II, section four outlines the process for impeaching and removing a president from office. It declares that the president, vice president and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
While treason and bribery have clear meaning, what are high crimes and misdemeanors? Are they real crimes that therefore suggest impeachment is the only way to remove the president for breaking the law? In adopting this phrase, the constitutional Framers employed language that had existed in England since 1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties.
“Maladministration” comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted “high crimes and misdemeanors” in its place. Neither the meaning of the phrase nor the process of impeachment suggest that the exclusive way to remove a president is this way.
A second way to ascertain constitutional meaning is through Framers’ intent. The two most authoritative accounts of the 1787 Constitutional Convention are Madison’s Notes of Debates in the Federal Convention of 1787 and Max Farrand’s The Records of the Federal Convention of 1787. In discussing the powers of the presidency, Madison and Ben Franklin worried the office would be too powerful and its power unchecked. Both Madison’s and Farrand’s notes quote Franklin as arguing that removal of a president for misconduct through impeachment is needed because history “furnishes one example only of a first magistrate being formally brought to public justice.” Impeachment was necessary because indictment was not easy, with some claiming it unconstitutional while others simply saw it difficult to convince people that perhaps a popular person such as a president should be convicted. Franklin and Madison saw impeachment complementing indictment as dual checks to limit abuses of presidential power.
A third way to interpret the constitutional is structuralism. Structural interpretations of the Constitution have a long history, going back to the great Chief Justice John Marshall who used this approach in some of the most notable Supreme Court opinions in history, including Marbury v. Madison. One structural argument is what Franklin and Madison were hinting at — if indicting the president for crimes was not a sufficient way to check all forms of his abuses of power, then impeachment was a needed tool of checks and balances. History has shown that impeachment is not a real remedy to removing bad presidents. There never has been successful removal of a president through impeachment; thus, indictment is needed.
A final way to interpret the Constitution is to look to case law and precedent. Even if the Justice Department were correct in 1973 that a sitting president could not be indicted for a crime, two precedents — United States v. Nixon, and Clinton v. Jones — significantly erode this claim. Nixon asked whether the president could invoke executive privilege by refusing to comply with a subpoena from a special prosecutor and court demanding recordings of Oval Office conversations. The Supreme Court ruled that the need to investigate criminality in the executive branch outweighed any constitutional claims the president had.
In Clinton v. Jones, the Supreme Court rejected claims by President Clinton that a civil suit brought by Paula Jones alleging his sexual harassment could not take place while he was president, effectively saying “justice delayed is justice denied.” Combine Nixon and Jones and the presumption against holding a sitting president accountable in court for personal misdeeds has eroded significantly. Presidents are not above the law, and they should face personal liability — civil or criminal — if they act illegally.
Constitutionally, then, the idea that impeachment precludes indictment is suspect. However, one objection remaining is, can we trust the criminal justice process, fearful that some jury will be used to harass a president and remove him from office? As Franklin noted, it will be hard to indict and convict presidents; juries will be even more loath to convict than they are with allegations of police misconduct. Second, ultimately the Supreme Court will be able to review verdicts to ensure justice. Third, there is a history of criminal convictions of federal officials followed by impeachments or expulsions. This shows how the criminal justice and impeachment processes can work together.
Overall, assuming impeachment does not preclude indictment, Mueller faces a significant choice in terms of what to do next with his Trump-Russia collusion investigation. Referral to Congress and to a grand jury both are viable options.
David Schultz is a professor of political science at Hamline University in St. Paul, Minnesota, and a professor of constitutional law at the University of Minnesota. He is the author of 35 books, including a constitutional law case book.