The president isn't too important to be indicted

Throughout American history, progressives, conservatives and others have read into the U.S. Constitution things they have wanted to be in there but just aren’t. Some of those “others” have included unelected bureaucrats.

Recently, with special counsel Robert MuellerRobert (Bob) Swan MuellerMueller report fades from political conversation Trump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony MORE’s investigation into whether the Trump campaign colluded with the Russian government during the 2016 presidential campaign and the Justice Department’s Southern District of New York’s companion investigation into the Trump camp’s alleged illegal payoff of two women during that same campaign, the question of whether a sitting president can be indicted has once again surfaced (the previous times were Richard Nixon in the early 1970s and Bill ClintonWilliam (Bill) Jefferson ClintonBen Shapiro: No prominent GOP figure ever questioned Obama's legitimacy The Hill's 12:30 Report: Trump tries to reassure voters on economy 3 real problems Republicans need to address to win in 2020 MORE around the turn of the millennium).

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In both 1973 and 2000, the Justice Department issued policy decrees that a sitting president couldn’t be indicted. What might the Constitution’s framers say about this bureaucratic proclamation?

The text of the Constitution does not prohibit the indictment of an incumbent president and even says a president can be impeached for “high crimes and misdemeanors.”

Technically, under the U.S. system of justice, which had its origins in Britain before the Constitution was written in 1787, to commit a crime in the eyes of the law, a person needs to be indicted and convicted by a jury of his or her peers.

Therefore, seemingly, the political impeachment of a president should follow a legal conviction, not vice versa. Yet “the vice versa” are the scraps that prosecutors are left with, given their department’s decree of presidential non-prosecution.

Prosecutors can only indict a president after he leaves office, and if he gets re-elected, his immunity could easily exceed the five-year statute of limitations window on prosecuting any illegal conduct.

Oddly and dangerously, the Justice Department’s policy could motivate a president to take desperate measures at home or abroad — instituting martial law in the wake of a terrorist attack or initiating a war overseas, for example — to get re-elected and thus stay out of jail.

The “no-indictment” issue has been intensified recently by the Southern District of New York’s sentencing recommendation for Michael Cohen, Donald Trump’s decade-long thuggish “fixer,” after he pled guilty to criminal violations of campaign finance law, among a variety of other lawbreaking, and implicated President TrumpDonald John Trump Former US ambassador: 'Denmark is not a big fan of Donald Trump and his politics' Senate Democrats push for arms control language in defense policy bill Detroit county sheriff endorses Booker for president MORE in directing him in those campaign violations.

In the sentencing memo, Southern District prosecutors agreed with Cohen that he made illegal payments to the women “in coordination with and at the direction” of Trump.

Although modern-day commentators often like to solemnly intone that “no person is above the law,” every citizen deep down is skeptical that this ideal is always realized. But to have the shortfall of justice so blatantly smack us in the face — as does the Justice Department’s proclamation that a president can’t be indicted because the job is just too important from which to be distracted — would have likely troubled even the aristocratic founders.

The root of the problem is the acceptance by the public, media and even other branches of government of the modern-day “imperial presidency," which has grown excessively powerful compared to what the Constitution’s framers had envisioned.

Although the framers had seen excesses of state legislatures during the Articles of Confederation era, their main reference point in writing the Constitution was the tyranny of the British king; thus, in assigning presidential powers, they wanted to avoid the tyranny of a muscular chief executive.

That is why they placed most of the enumerated powers of the federal government in the hands of Congress rather than the president.

One would hardly know it nowadays, with a dominant president riding roughshod over a long-emasculated Congress, which has been further neutered by partisan loyalty that further undermines the founders’ system of checks and balances (which was created before the advent of political parties).

In sum, unelected bureaucrats, or anyone else, should not be able to tell Americans that the president is too important and busy to be bothered with indictment for serious apparent criminal misconduct — especially this incumbent, who watches cable news blather for many hours a day.

There is nothing more fundamental to a republic than the rule of law, which is just a fancy way of saying that the law should be equally applied to every American.

Ivan Eland is a senior fellow and director of the Center on Peace and Liberty at the Independent Institute. He is the author of "Eleven Presidents: Promises Vs. Results in Achieving Limited Government."