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Take Away the President’s Immunity

No legal doctrine should shield anyone—including Donald Trump, if reelected—from prosecution for criminal wrongdoing.

Getty; The Atlantic

Donald Trump’s interest in another run at the presidency is reportedly connected to his intensifying concerns over the January 6 Select Committee hearings. Most recently, after the vice chair, Representative Liz Cheney, suggested that the committee might make multiple criminal referrals for his conduct, Trump exploded at the “warmongering and despicable human being Liz Cheney, who … keeps saying, over and over again, that HER Fake Unselect Committee may recommend CRIMINAL CHARGES against a President of the United States who got more votes than any sitting President in history.”

Various motivations may feed into Trump’s electoral calculation for 2024, but one in particular is coming into focus. In seeking office, he would be seeking legal immunity.

Since 1973, the Department of Justice’s Office of Legal Counsel (OLC) has taken the position, which it affirmed in 2000, that a sitting president may be investigated, but not prosecuted, for crimes. This is now executive-branch law. To defend himself from potential federal and state prosecutions by seeking the office that would immunize him, Trump would be exploiting the constitutional system at one of its most dangerously vulnerable points.

A one-term former president facing liability arising from actions in that prior term has an incentive to run for office as a means of self-protection. Any future president who shares Trump’s view that he has the “absolute right to do what I want to do with the Justice Department” may even put an end to investigations of himself. A president so disposed need only appoint pliant officials from the outset.

The United States has never faced these circumstances, but they are inescapably before us, and they call for legal and institutional reforms to address this threat to the rule of law. Any such reforms cannot be just about Donald Trump’s potential assaults on impartial law enforcement—long before him came Richard Nixon.

Any authoritarian-populist president may relish legal immunities and the opportunity to exercise political control over the Department of Justice. A candidate who runs for the Oval Office in order to enjoy legal protection is also likely to be one who will interfere in investigations, abuse the pardon power, or appoint special counsels to harass opponents. And the same power to prosecute that the president need not fear could be unleashed on his opponents in, for example, Congress: “Immunity for me, not for thee.”

We can also now see how a presidential candidate preoccupied by legal peril might bring the issue into a campaign and hope to advance his immunity from prosecution even ahead of an election. Already, at his rallies, Trump rails at “corrupt” investigations, aiming to mobilize political support against any prosecution—federal or state.

An early announcement of a presidential campaign, he may wager, would make it yet more difficult for the government to proceed against him. By putting his possible criminal prosecution on the ballot in 2024, Trump would be challenging prosecutors to take the explosive step of indicting him while he is running for president.

Steps to address these problems must start with reconsidering the OLC opinions—wrong in their conclusion and flawed in their analysis. The 2000 version reaffirmed the 1973 conclusion that even if the Constitution does not expressly provide for presidential immunity, “general considerations of constitutional structure” dictate a complex balancing between “the normal functions of the courts and the special responsibilities and functions of the Presidency.” Prosecution, unlike investigation, would impermissibly interfere with a president’s ability to discharge his constitutional functions.

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Written at the end of the Clinton presidency, following years of independent-counsel inquiries that took a clear toll on the administration, the 2000 opinion’s attempt to establish a constitutionally grounded distinction between investigation and prosecution seemed remarkably blind to reality. Even on their own terms, neither this opinion nor its predecessor holds water. And they clash with core intuitions about the rule of law in a democracy: for example, that it could not be true, as one Trump lawyer asserted in a federal court proceeding, that a president could shoot someone in the middle of Fifth Avenue and be immune from prosecution.

Another problem with the OLC opinions surfaced when they convinced Special Counsel Robert Mueller that his final report should not express a judgment of whether then-President Trump committed obstruction of justice: “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.” This has created further uncertainty about where the OLC’s view of immunity leaves a crucial aspect of special-counsel investigations’ efficacy.

Fresh, well-reasoned legal scholarship underscores the extent of the opinions’ weaknesses. In his recent exploration of the topic, the constitutional scholar Saikrishna Prakash cites evidence from our early history of an assumption that, “unlike the British monarch, American presidents did not enjoy the protection of the legal fiction that they could do no wrong.” Praskash also notes one salient but little-remarked-upon point of history that disproves any assumption that presidents have always enjoyed legal immunity: President Ulysses S. Grant’s arrest while in office for speeding in his carriage, which he did not contest.

The Department of Justice has the discretion to reconsider the OLC opinions; it has done so once before, and it should do so again. But more can be done, especially in view of the fact that a future president seeking to reclaim immunity might simply direct the Justice Department to reverse course and restore the original grant of legal protection.

A more comprehensive, decisive reform would be to remove the department from the executive branch and make it an independent agency. This was proposed by Senate Watergate Committee Chair Sam Ervin, who called for the DOJ to be an “independent establishment of the United States” headed by an attorney general confirmed for a six-year term.

The plan met with strong opposition from a bipartisan roster of seasoned and respected lawyers, including Attorney General Griffin Bell, who served under President Jimmy Carter—who himself had originally favored the idea. A proposal like Ervin’s presents complicated issues and would require close examination. But objections that seemed sound in the late 1970s have less force, and bear reappraisal, amid the conditions of American politics half a century later. The costs of dismissing this major reform out of hand are too high.

The final piece of this reform program would be to overhaul the broken impeachment process. The OLC opinions on immunity rested heavily on assumptions about the effectiveness of impeachment as the answer to a president willing to abuse his immunity from prosecution: Congress could remove a rogue president from office, and then prosecutions, if merited, could proceed. I also once thought so, and wrote that the president “can fire prosecutors one after the other until he arrives at a pliant replacement … It is also highly probable that, whatever its view of the core offense under investigation, Congress would intervene via the impeachment process to restore the ‘rule of law.’” In light of our polarized politics and recent experience with the impeachment process, this statement does not hold up well.

The rules of each chamber of Congress have remained unamended and unclarified in the face of a series of questions. Among the issues of scheduling and process raised are whether the House and Senate have an obligation to conduct meaningful, independent fact-finding and what motions are allowable. The House and Senate now fill in the gaps as they go along, in the very specific circumstances of a particular impeachment—which, in the heated politics of the moment, is the worst time to do so.

All of these potential changes should satisfy a golden rule of presidential reform that OLC alumnus Jack Goldsmith and I proposed: “Always imagine whether a constraint on the presidency would be legitimate if your preferred president were in office or, reciprocally, whether a conferral of presidential discretion would be legitimate if exercised by a president of another party.” The debate over an independent Department of Justice will inevitably be complex and take time to resolve. A good place to start, though, would be to establish once and for all that presidents are not immune from criminal prosecution while in office.

Bob Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law and a former White House counsel to Barack Obama.

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