Post 16: Can a ‘Criminal Presidency’ Exist? Defining Criminal Behavior in the White House

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President Trump boarding Marine One on the South Lawn of the White House this month. (Al Drago, The New York Times).

When the President does it, that means that it is not illegal.

  • Richard M. Nixon

In his June 8th testimony to the Senate Intelligence Committee, former FBI Director James Comey intimated that President Trump had obstructed a federal criminal investigation. Among other issues, this raised questions as to whether the country is experiencing a ‘criminal presidency’.

There are several federal statutes that criminalize ‘obstruction of justice’, some that specifically define the offense, and others that broadly interpret it. [1] For example, Title 18 contains language making it a crime if someone “obstructs, influences or impedes any official proceeding.” [2]

Based on Comey’s testimony, a strong case could be made for President Trump’s indictment and prosecution for obstruction of justice.

However, President Trump is no ordinary citizen.

Whether the constitution allows for indictment of a sitting president is an unsettled matter. One school of thought argues that as an ordinary citizen, temporarily elevated to office, the president is subject to the same laws as his fellow countrymen. [3]

 photo deefa7ac-89cf-427f-a6d2-8fca9974aee4_zpsdioh4hom.jpg
Former FBI Director James Comey delivered a damaging testimony on President Trump to the Senate Intelligence Committee. (ABCnews.com).

The Constitution and Department of Justice (DOJ) arrive at a different conclusion. For example, Article I, Section 3, Clause 7 of the Constitution states that impeachment shall not extend past removal from office, though the official may be exposed to liability after leaving their government post. This implies that impeachment is political, leaving criminal prosecution to the court system.

Additionally, DOJ held that the extraordinary duties of the office precluded indictment and prosecution of a sitting president. In a 2000 memo, the agency found that the president’s unique position, and overwhelming workload, meant he could not be plagued by a criminal probe that prevented him from executing official duties. [4]

Alexander Hamilton’s vision of the presidency supports DOJ’s conclusion. In Federalist 65, Hamilton wrote that impeachable offenses violated the “public trust”, making such improprieties “political” in nature. [5] This left removal as the sole remedy for impeachment and conviction, thus exposing the president to civil and criminal penalty only after leaving office. [6]

The US Supreme Court has left little guidance on the issue as well. In 1974, the Court heard US v Nixon and ordered the President to turn over his Oval Office recordings. However, the Court failed to address whether a sitting president may be exposed to criminal prosecution. [7]

So, if we honor our founding documents and contemporary legal thought, the term ‘criminal presidency’ is a misnomer- activity is only criminal when one is bound by a statute that prescribes criminal punishment. 

Since a sitting president’s conduct only gives rise to political remedies like impeachment and removal, his actions are inherently not criminal.

 photo 13c03b6c-ea34-435e-b9dc-25f76f894cd7_zpskle0f2ks.jpg
President Nixon likely would have faced criminal charges after resigning, but was eventually pardoned by President Ford. (biography.com).

There are several reasons for this presidential ‘cloak of immunity’. First, the Founders foresaw the contentious nature of politics, and decided that indictment would invite a ruinous flow of charges against the president. Further, the far-reaching duties of the office require autonomy, and clouding the executive with criminal investigation would harm his ability to execute the nation’s laws.

However, the ‘cloak of immunity’ is not absolute. In Federalist 69, Hamilton clearly states that a president loses protection against criminal prosecution upon removal from office. 

That said, President Trump likely enjoys immunity from criminal prosecution, and may apply the ‘cloak’ to legal jeopardy arising from the Comey testimony. While not palatable to Trump detractors, the president’s immunity aligns with the Founder’s intent, and insulates the office from damaging criminal inquiries.

Still, the president’s advisors should note that his actions could result in impeachment and removal. In such a case, indictments may well be on the way as soon as he steps out of the Oval Office.

[1] Savage, C. (2017). Trump, Comey and Obstruction of Justice- A Primer. The New York Times. https://www.nytimes.com/2017/06/08/us/politics/obstruction-of-justice-trump-comey.html?_r=0.

[2] Id.

[3] Freedman, Eric M. (1999) “On Protecting Accountability,” Hofstra Law Review: Vol. 27 : Iss. 4 , Article 3.

Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol27/iss4/3.

[4] Moss, R. (2000). A Sitting President’s Amenability to Indictment and Criminal Prosecution. Department of Justice: Office of Legal Counsel. Retrieved from https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution.

[5] Kesler, C.R., Rossiter, C. Eds. (2003). The Federalist Papers: Hamilton, Madison, Jay. Penguin Books. New York.

[6] Id.

[7] Liptak, A. (2017). A Constitutional Puzzle: Can the President be Indicted? The New York Times. Retrieved from https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html?_r=0.

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