The Mueller report, released on Thursday, makes it clear that the president might be guilty of criminal obstruction of justice in 10 – 10! – instances. Far from exonerating him, the report fails to recommend a criminal indictment based on a long-standing Department of Justice (DOJ) policy against indicting a sitting president, not based on Trump’s actual guilt or innocence. But the report also suggests a way to ensure that justice for the president is eventually served.
There is no statement in the Constitution granting immunity to sitting presidents. Instead, this privilege is a Department of Justice policy based on two memos written by lawyers in the Nixon and Clinton administrations. These lawyers argued, based on their reading of the Constitution and case law, that a sitting president cannot be subject to indictment or criminal trial for two reasons: a criminal indictment would create too much of a distraction from the president’s job and would undermine the dignity of the presidential office.
According to Mueller’s report, the DOJ policy based on these memos guided his office “not to apply an approach that could potentially result in a judgment that the president committed crimes” because the accused president would not have the opportunity to “clear his name” through the ordinary process of a “speedy trial.”
Mueller claims he is bound by those memos since they are Department of Justice policy, and he is part of that department. Therefore, he cannot recommend that the president be indicted or exonerated, even if the president has committed crimes.
So how can the case against Trump move forward given the current limit imposed by the DOJ memos? The report leaves open three ways.
First, although the memos prohibit Mueller from seeking an indictment, the attorney general could potentially override them. A cabinet member is not necessarily bound by flawed policies drafted years ago, even if Mueller, his subordinate, might be. In the report, Mueller defers to the person who could override longstanding DOJ policy: Barr.
In my view, the arguments for the current DOJ policy are so flawed that it should have been overridden. The indignity to the office comes from allowing a criminal president to continue to occupy it, not from indictments. And the idea that presidents are too busy to be indicted is simply false. The constitutionally enshrined impeachment process is also time-consuming. And as the example of President Clinton’s subpoenaed testimony in Clinton v Jones made clear, presidential schedulers can figure out how to balance a president’s responsibilities as chief executive with his participation in a legal proceeding. The failure to indict the president on obstruction was Barr’s responsibility, not Mueller’s. And in light of Barr’s heavily partisan pre-release press conference, this failure is both predictable and regrettable.
Second, the report makes it clear that although Mueller can’t seek an indictment now, his investigation of the president—conducted while the evidence was fresh—was done with an eye towards a future indictment by a future prosecutor after Trump leaves office. That future prosecution is and should remain a live possibility.
Given that a future Indictment cannot occur under the DOJ policy until the president leaves office, we need to consider a third possible way forward right now. Some early supporters of presidential immunity, like Alexander Hamilton, argued that crimes by presidents should be dealt with first and foremost by the impeachment and removal process. As I read him, Hamilton thinks that there is therefore an obligation of the House to impeach and the Senate to remove a president credibly accused of a crime so that the criminal process can proceed as soon as possible. Anything less would be to place the president above the law.
And the standard for impeachment is lower than the standard for criminal indictment. To conclude that the president has committed any “high crimes and misdemeanors,” the criminal bar for obstruction of justice does not need to be met. Removing a president is not a matter of proof beyond a reasonable doubt, and “high crimes and misdemeanors” need not in fact be crimes in the legal sense. The political question of impeachment and removal need not even be limited to the obstruction statutes, as Mueller’s report necessarily was. What matters is that Trump does not take seriously the responsibilities of the office he holds, the oath he took, or the Constitution he swore to uphold. That much the report makes unflinchingly clear. What is needed for impeachment is evidence that the president of the United States committed an act that so abuses the powers and neglects the responsibilities of his office – such as the responsibility to “take care that the laws be faithfully executed”– that he should no longer hold it. Of course, impeachment and removal would clear the way for prosecution if a crime did occur.
Impeachment would also make clear the heart of this matter: a president who seeks to use illegal means to protect himself and his associates is not fit for office. It’s also worth noting that the investigatory process that proceeds with impeachment is valuable in its own right – a democratic and transparent process that picks up where this report leaves off.
Perhaps the most compelling argument for impeachment comes from considering the consequences for justice if Trump wins the next election. The statute of limitations on federal obstruction is five years. Therefore, if Trump were not impeached and were reelected, he would likely never be tried for his crime because the statute of limitations would have run out.
Impeachment and prosecution of this president, of course, require building on Mueller’s evidence. He has given us a huge head start. It is now up to Congress to look into whether his actions amount to obstruction. And if they determine there is enough evidence to support this claim, it is not only up to them to impeach and remove the president; it is up to future prosecutors to indict him.
Corey Brettschneider is the author of The Oath and The Office: A Guide To the Constitution For Future Presidents. He is also Professor of Political Science at Brown University and Visiting Professor of Law at Fordham Law School.
