How is justice supposed to work for the president of the United States?

Question

I am having trouble understanding how the President of the United States should be brought to justice if one should commit a crime. This question should not be viewed as pro-vel-contra Trump, but an attempt to understand the OLC opinion.

So, the general principle is that no man is above the law. If a citizen shoots a man on Fifth Avenue, the NYPD and appropriate prosecutors would see that justice is served. Now, what happens if POTUS is the culprit? As far as I can see, the designers of the US constitution envision this that any criminal behaviour would be so repugnant across the political spectrum that no party would defend the accused and, therefore, impeachment is appropriate mechanism.

But why would they think so? This totalitaristic self-organization is so ingrained in all human societies across the globe and history that I see no reason the founding fathers of the USA would think US is immune to such tendencies.

As a solution, you have this office of special counsel, essentially an attempt where executive oversights itself, in a insulated mode admittingly, and then reports to DoJ that should tattle its boss to Congress? I simply don't get it, what is the safety mechanism here? To my mind, just as Mueller did with several investigations, when it found evidence of any wrongdoing that did not fall within the scope of his investigation, he referred the evidence to the appropriate bodies to continue prosecution. In the case of a crime by the president, the appropriate body is Congress. Why ask questions at the DoJ?

So, my question is this; in the situation where Congress has the authority to investigate, but inefficient mechanism and Executive has the mech, but inappropriate standing, can and should there be a legal and political solution to have a special liaison of Congress, maybe a federal judge or panel of those, that sign off referral of evidence of wrongdoing of POTUS to Congress?

With such a solution, person(s) signing off would protect POTUS against political misuse, the DoJ would have a much tougher time obstructing any investigation against its boss and president's party would have a much harder time voting against "here is the evidence that POTUS did wrong, prosecution is in order." instead "here is evidence that proves something that we cannot characterize, but if we could exonerate POTUS, we would say so.

Answer 1

To my mind, just as Mueller did with several investigations, when it found evidence of any wrongdoing that did not fall within the scope of his investigation, he referred the evidence to the appropriate bodies to continue prosecution.

Robert Mueller specifically said that this was not what he was doing. The Washington Examiner quoted Mueller as saying:

Now before we go to questions, I want to go back to one thing that was said this morning by Mr. Lieu, who said, and I quote, ‘You didn’t charge the president because of the OLC opinion.’ That is not the correct way to say it. As we say in the report, and as I said at the opening, we did not reach a determination as to whether the president committed a crime. With that, Mr. Chairman, I’m ready to answer questions.

I.e. they did not refer it for prosecution. They referred it to determine if prosecution or further investigation or nothing should occur.

It's also worth noting that what they were investigating was two matters:

1. If Donald Trump or any associate of his engaged in a criminal conspiracy with the Russians to interfere in the United States elections.
2. If Trump obstructed justice by interfering with that investigation (which predated the appointment of a special counsel).

So such wrongdoing was specifically within the scope of the investigation. Moreso than some of the crimes for which he sought indictments. In particular, Paul Manafort was convicted of neither criminal conspiracy of election interference nor obstruction of justice in that investigation. His conduct was unrelated to that investigation, but Mueller charged (and convicted) him. Also, the twenty-five Russians were indicted on charges of interfering but not on criminal conspiracy.

Trump is the only one with that particular protection. If they had found someone else had participated in obstruction with Trump, then they could have indicted that person. They did not do so. If there was any obstruction of justice in this matter, Trump did it entirely on his own.

There is nothing stopping the House from impeaching Trump. They could do it purely on a party line vote if they wanted. If they do not do that, it is either that they don't believe his actions warrant impeachment or that they don't believe that they convince enough of the public that his actions warrant impeachment so as to pressure the Republicans in the Senate to join in removing Trump from office.

If the House chooses to do nothing, that is of course up to them.

It's also worth noting that the typical Democrat does not really want Trump impeached for obstruction of justice. What they really want is for Trump to be impeached as a racist demagogue. But they are willing to settle for obstruction of justice. Of course, Trump was just as racist and just as much of a demagogue when he won the election. They should have done a better job of convincing people that was important then.

Impeachment of a president reverses the effect of an election. It is deliberately difficult to accomplish. It is supposed to require broad support from across the political spectrum.

The basis of the Office of Legal Counsel opinion that a president can't be indicted is that if a president could be, the president's opponents could just continually put a president on trial. And there is strong evidence that that would happen. The impeachments of Andrew Johnson (and later Bill Clinton) showed that partisan reasons will dominate.

The previous independent counsel statute, which was passed after Richard Nixon's travails, was allowed to expire because it led to the Kenneth Starr investigation, where Starr harassed President Clinton for the remainder of his term. Clinton would eventually plead guilty and turn in his law license. The reason why it was allowed to lapse was that this was widely seen as a waste of time and money.

Presumably if a new office were created, the next people to be able to use it would be the Republicans, just as happened last time. Then it would be abolished again and we'd back to where we are now.

If you want greater oversight by Congress, a more powerful tool would be to allow them to prosecute contempt of Congress. As is, they have to rely on the executive branch to do that, and funnily enough, it doesn't seem interested in helping investigations into itself. Contempt of Congress prosecutions would cover things other than potentially impeachable offenses. Of course, we might soon discover that that too can be abused.

My personal solution would be to create (via constitutional amendment) an Auditor General post that is always elected by the losers in the presidential election (in 2016, that would have been the voters for Hillary Clinton, Gary Johnson, Jill Stein, and everyone else who wasn't Trump). The Auditor General would run a shadow government, explicitly including the Inspectors General. Then the next time the government shifted hands, there would be an experienced core of people for the new government. And some of the exiting people could join the shadow government. But that's less an alternative to impeachment and more an improved review of budgeting matters.

I wouldn't expect it to change anything here, except that it would have prevented the actions that people are saying were obstruction of justice. Because Trump would not have been able to fire the investigators. James Comey would not have been involved in the investigation after Barack Obama left office. So Trump firing him couldn't have been construed as obstruction of justice. Trump would have been unable to fire Mueller.

Answer 2

As a solution, you have this office of special counsel, essentially an attempt where executive oversights itself, in a insulated mode admittingly, and then reports to DoJ that should tattle its boss to Congress? I simply don't get it, what is the safety mechanism here?

Impeachment is the safety mechanism. The system relies on Congress being able to impeach. I'm not going to qualify whether that's a good mechanism or not, but that's the mechanism as it is. This is laid out in article one of the United States Constitution. Quoting the relevant parts from sections 2 and 3:

The House of Representatives shall chuse [sic] their Speaker and other Officers;and shall have the sole Power of Impeachment.

[...]

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

In other words, the House drafts articles of impeachment and the Senate has to vote on those as well.

In a sense, this is not that different from a trial by jury, except that the jury knows a lot about the president which wouldn't be the case in a normal trial. The argument for having the Congress take lead in a democracy is that it's a body representative of the people.

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As for the special counsel reporting to the DoJ, that's not a problem per se, I think. The reason is that Congress knows there has been an investigation and it can subpoena records if the DoJ doesn't give them to Congress. Furthermore, they can also subpoena outside records and hear witnesses.

As such, the Congress should have access to whatever it needs to run a trial, as it were.

Answer 3

..can and should there be a legal and political solution to have a special liaison of Congress, maybe a federal judge or panel of those, that sign off referral of evidence of wrongdoing of POTUS to Congress?

Perhaps, However I would take exception to your reference to "political solution" as ideally politics should have no role in administration of justice for criminal activities.

The root of this conflict lies squarely in the OLC OPINION ( and I stress opinion as that is all it is - the recommendation of Dixon that indictment of a sitting president be avoided as such an indictment (on judicial review) could be determined to be unconstitutional). Viewed in that context, suggestions around mechanisms and processes to work around the OLC opinion are premature, as the OLC argument has never been adjudicated.

It must also be noted that this recommendation applies only to Federal prosecutors (OLC recommendations have no impact on State prosecutors), consequently for State crimes like the previously suggested murder, there is no admonition provided regarding criminal indictment for violation of state laws.

(Commentators may quibble with the use of the word "recommendation", however I would reply that the OLC is simply a legal brief provided to the DOJ on the question of ammenability. It is not a determination of a Justice speaking from the bench)

Answer 4

Your suggested solution is no solution at all.

The actual solution is two-fold

1. time: a sitting president can not be prosecuted, a former president can be.
2. states vs federal: most crimes are and should be prosecuted at the state level. While a state police force would obviously have difficulty in arresting and holding the president, they can certainly determine that a crime has been, that he is the suspect and put out an arrest warrant.

I would also (optimistically) dispute your assertion that the parties would ignore a serious crime. Obstruction of justice is in the opinion of many (myself included) actually a travesty of justice, whether it is Martha Stewart or Donald Trump. I would consider their decision not to impeach on a unambiguous charge of obstruction on same scale as a decision not to impeach for smoking part of a single joint. Simple good sense.

If there was evidence of a serious crime, assault, theft or murder, I would hope that they would impeach, if for no other reason fear of losing their position in the next election.

But if they didn’t, the federal statue of limitation is 5 years, in most cases justice could still be done.

PS: This is why people getting all giggly at Mueller’s “Yes” in answer to whether Trump could be charged once he is out of office are, uhm, I guess the nicest way I could put this is, ignorant of the law. If the president was to kill, gut and eat a personal enemy on national television on Inauguration Day (after losing) at 11:50 am, he could be arrested and tried for murder as any other citizen could be. That would apply to any other crime, unless it was covered by the partial immunity given to officials carrying out their duties.