The position of the Department of Justice’s Office of Legal Counsel (OLC) is that a sitting president cannot be indicted for criminal conduct. Remedial action for criminal activity by a sitting president is therefore left to the House of Representatives, via the process of impeachment.
The Constitution limits grounds of impeachment to “treason, bribery, or other high crimes and misdemeanors”, and it says that this standard applies to “the President, Vice President and all civil Officers of the United States”. While the precise meaning of the phrase “high crimes and misdemeanors” is not specified, and is left to the judgment of Congress, precedent ilustrates the range of crimes that have historically been considered to be within the scope of this definition. The House has impeached 19 federal officers in the history of the United States and, over the past century, the following crimes have been used to impeach federal officials:
- making false financial disclosures
- corruption
- sexual assault
- obstruction of justice
- committing perjury
- accepting a bribe
- tax evasion
- abuse of power
- contempt of Congress
It may well be that Trump is the first federal official in U.S. history to complete this bingo card of impeachable offenses, but, for now, the most serious accusation, with the strongest evidence gathered, is obstruction of justice. More than a thousand former federal prosecutors have signed a statement explaining that, in their professional judgment and based on the facts described in Special Counsel Mueller’s report, President Trump would have been criminally charged with obstruction of justice if he were not the president.
Moreover, Trump has obstructed justice for a reason that could hardly be more serious - in order to subvert an investigation into an attack by a foreign power, one that is historically the United States’ greatest enemy, on the U.S. electoral process, as well as the Trump campaign’s collusion in this endeavor. Trump’s active attempts to obstruct justice means that one cannot rule out that his campaign did in fact conspire with the Russians. Mueller says that his investigation “did not establish” criminal conspiracy between the Trump campaign and Russia, but his report also points out that the investigation was hindered by a lack of cooperation, such as from Manafort and Trump, the destruction of evidence, and the fact that those people on the Russian side that were implicated could not be interviewed.
If the Department of Justice leaves the path towards the indictment of sitting presidents for criminal activity to Congress, then, if Congress does nothing when presented with clear evidence of criminal activity, they would effectively be upholding the view that the President of the United States is above the law.
Surely it should be the view of every American that no-one, not even the president, is above the law?