Rumors are swirling around Washington and beyond that Russia investigation special counsel Robert Mueller is planning to drop his final report detailing what he’s discovered, in terms of the Kremlin’s attempts to interfere in our elections process as well as the potential revelation of individuals who colluded with that nation to do so.
When exactly this report will drop, of course, is unknown, and previous guesses have been wrong before. What’s even less known than the timing of the report is what exactly is inside it.
Speculations run the gamut, from President Donald Trump and his supporters arguing that no wrongdoing will be revealed by the president or his inner circle, to detractors of the commander-in-chief saying that the report will reveal damning evidence of malfeasance. A smaller number of observers (yet no-less incorrect in its guesswork) also suggests that auxillary investigations may also be looking into those types of questions, and that Mueller’s report will not conclude with any answers except to say that investigations are ongoing.
Regardless of where you stand on this whole matter, an important debate for our nation has begun: if the president did do something wrong, should he be held to account, and how?
Legal means to remove a president
Constitutionally, there are two ways in which a president can be removed from office. The House of Representatives can, for starters, vote to impeach the president based off of “high crimes and misdemeanors” he has committed. The Senate, by two-thirds majority, must vote to affirm the House’s findings in order to indict and remove him from office, a feat that has never been achieved.
A second means of removing the president has more to do with assessing his fitness to serve. The 25th Amendment of the Constitution lays out a way for a majority of executive branch cabinet officials, at the direction of the vice president, to remove a sitting president if they believe he is “unable to discharge the powers and duties of his office,” for health reasons or otherwise. The president has a right to appeal this decision, which keeps him in power unless two-thirds of Congress agrees with the vice president and the principal executive branch members that the president is unfit to serve.
The Memo(s) debate
But a third option to remove the president from office may exist, although it is the subject of considerable debate. A president could, in theory, be indicted by an investigative body, like the Department of Justice, and be found guilty of a criminal action, which would require his removal from office if the punishment for the crime is severe enough.
The Justice Department has long held that this simply cannot be allowed to happen, and that a sitting president is immune to such threats. According to the headnotes of that memo on the DOJ website, the “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
We’re taught at a young age that nobody is above the law, including the president of the United States — but this memo seems to contradict that notion.
However, the DOJ memo itself is up for debate. It’s a policy choice by that department, some contend, and not an established rule that has to be enforced.
Another memo, not talked about as frequently as the one cited above, also states that the president absolutely can be indicted for serious crimes. It came about during the presidency of Bill Clinton, stemming from the Kenneth Starr investigation. The most intriguing line from that memo reads:
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”
Understanding the argument through an extreme hypothetical
So there are clear contradictions when it comes to whether an investigative body can charge the president with a crime or not. In situations like these, it sometimes helps to consider hypothetical scenarios in order to delve into “what would we do if this happened” suppositions that help us determine smaller but still serious considerations.
I throw out this particular extreme hypothetical because Trump himself suggested it during the campaign. “I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose any voters,” Trump famously said.
This is where the hypothetical begins: what if a president actually did something like that? What if a president shot and killed a person, everybody knew without a doubt that he did it, and he even admitted to doing the deed?
Furthermore, let’s imagine in this hypothetical that the president’s own party is in control of Congress. They’re loyal to him to a tee — and thus, impeachment is off the table. So, too, is utilization of the 25th Amendment, as Congress is already seen to be unwilling to stand beside any attempts to remove that president from office.
What recourse should be taken here? The president has clearly committed a crime. It’s a capital offense, in fact, and out of respect for the victim and his/her family (not to mention respect for the rule of law), SOMETHING needs to happen.
The question posed is this: should the president be charged with a crime in this situation?
Arguably, he should be. An investigation should occur, of course, to ensure that the killing wasn’t justified — an act of self-defense, for example, or perhaps the commander-in-chief was attempting to stop a perpetrator from stealing state secrets from the White House.
Barring those instances or others like them, however, if the president was found to have shot and killed another person in an unjustifiable way, he absolutely should be charged with a crime, tried for it, and be removed from office if he’s found guilty, after which he should serve an appropriate time behind bars.
Conclusions drawn from the hypotehtical
The criminal consequences of the Mueller report aren’t yet known at this time, but they likely do not extend to the extreme that is cited in the hypothetical above. Still, it’s blatantly obvious to see that there is a line where a president’s actions, if they’re deemed to be criminal, should be allowed to be challenged in a court of law.
Does collusion with a foreign and hostile nation fit the bill of a crime that should warrant indictment? Should we consider obstruction of justice of an investigation an indictable offense for the president? That’s hard to say, and legal minds that are stronger than my own struggle with the answers to these kinds of questions.
Still, flatly stating that a president can never be indicted in this way is a mistake, an approach to the situation at hand that must be soundly rejected.
Once the Mueller report is released, if it includes evidence of the president having a hand in criminal activities, an indictment must be, at the very least, a consideration. Otherwise, if crimes are uncovered and indictment isn’t considered, we must question everything our nation truly stands for.
Featured image credit: Gage Skidmore/Flickr