The American Presidency: Indictment or Impeachment?

If we fail to indict a sitting president In the face of irrefutable evidence of serious unlawful conduct, we fail to live up to the ideal that “no one is above the law”!  By not indicting a sitting president, are we implying that the president is too important to be inconvenienced by the laws that the rest of us must abide by, or else?  Are we also implying that the indictment of a sitting president would disturb the efficient flow of the government’s business? Do we not indict a sitting president because the government (represented by the President) cannot indict itself, as many law professionals tell us?

It is my opinion, in our democratic republic, all citizens that break the law, regardless of position, should be lawfully pursued and brought to justice. To give a sitting president a pass, decisively proves that “everyone is not equal under the law”.

The Constitution does not definitively address the question of whether we can, or cannot, indict a sitting president: it is a matter of constitutional interpretation.  No American authority, including the Supreme Court, has conclusively decided this issue, and law professionals have voiced different opinions about the issue.

Fox News.com reports that “Alan Dershowitz said that the Justice Department made it very clear that sitting presidents cannot be ‘indicted, prosecuted, or tried while serving in office.’ The Harvard law professor reminded everyone that the president must first be impeached and removed from office before he can be charged with a crime.” The Department of Justice’s position aligns with the Dershowitz position. The existing DOJ policy is that it does not indict sitting presidents. As a matter of procedure, following impeachment, the burden of deciding the fate of a sitting president resides with the Congress of the United States.

Some citizens feel that indicting a sitting president hampers the smooth running of the nation’s business and that may be true.  However, others argue that the constant veil of doubt surrounding possible presidential infractions has the same effect.  While citizens ponder whether the President is guilty or innocent, the daily presidential operations are slowed down as the administration scurries around trying to defend itself against the onslaught of serious accusations.

In lieu of indictment, the President can be impeached. However, impeachment makes the procedure political (in which the President will be judged by Congress), rather than legal (in which the President will be judged by the courts).

Recently, in a New York City courtroom, former Trump personal attorney, Michael Cohen, pled guilty to eight charges; among them were Trump’s illegal “hush money” payments to Stormy Daniels and Karen McDougal. Most pundits that I’ve heard believe that the Cohen admissions are true. Actually, the Karen McDougal part has already been corroborated by Trump’s friend, David Pecker, who heads up the company that owns The National Enquirer.   If Cohen’s testimony is corroborated by the court, it means that President Trump is guilty of a felony with reference to the 130 thousand dollar payment to Stormy Daniels and the 150 thousand dollar payment to Karen McDougal. According to Mr. Cohen, these payments were made while Trump was still campaigning, and Trump authorized and ordered these payments to be made using campaign money. 

The Daniels/McDougal “hush money” was designed to keep the knowledge of their affairs with Trump from the public so that this information would not negatively impact his run for the presidency. Though public knowledge of the affairs would not have precluded Trump from running for office, he would have encountered a formidable “uphill battle” when faced with the scrutiny of the voters and the RNC as he sought the presidency.

Given the undisputable evidence of Trump’s guilt of campaign finance infractions; would it be best for Congress, or the Courts, to adjudicate his fate? I’ll give you my opinion later.

As I see it, we made a considerable mistake by choosing the interpretation of the Constitution that suggests that you can’t indict a sitting president. Why not? Did the Founding Fathers think that indicting a sitting president would disrupt the government?  Probably not: because even if a president dies, for example, we replace them, and the government keeps on ticking.  Did they believe that the President is too important to be hampered by an indictment? I doubt it. The Founding Fathers may well have thought that impeaching a sitting president and having his fate decided by his peers in Congress was the best way to go.

Over the years we have been blessed to have honorable and stalwart men and women representing us in Congress.  They were hell-bent on doing the honest and right thing. They put country before party!  However, right now there is a red wall of silence on Capitol Hill, and the majority Republican Party has been providing unjustified “cover” for the sitting president’s misdeeds at every turn.  Their failure to “push back” on the President when deemed prudent and necessary shows that they are still immobilized by their fear of the President!

Here is my key question: If there is an impeachment proceeding against the sitting president, will his fate be determined by “principle” or “party”?  Will Republicans again be manipulated, compromised, and silenced by their impulsive and combative leader?  At such a pivotal time in our history, they may not choose principles over party. That, as I see it, is the classic flaw in the concept of “impeachment” versus “indictment”, because legitimate impeachment proceedings can be skewed in the direction of an unscrupulous majority party. The “hijacking” of The House Intelligence Committee by the Republican Majority is a case-in-point. Consider the following from my article entitled “Rejecting the Trump-era Normal”:

“Trump’s crony Devin Nunes hijacked the House Intelligence Committee’s Russia Investigation and came out with findings (really bogus findings) favorable to Trump. After silencing the Democrat minority, the Committee found ‘no evidence’ of Trump collusion with Russia. The Democrats claim that the ‘majority Republicans’ did not allow them to present certain witnesses and did not fully question witnesses in a real truth-seeking effort.  It appears that the Nunes-led Committee wanted to force a conclusion favorable to Trump. They were never interested in ‘uncovering the truth’. This is America. Such things should not be allowed. This is not normal for us. However, yes, it is the Trump-era normal.”

Need I say more?  Hopefully, in the future, there will be a choice as to whether we want to either “indict” or “impeach” a sitting president (depending on the particular circumstances at the time). Due to the current circumstances, I prefer indictment over impeachment because there is too much of an incentive for the Majority Party to place party over principles (and unscrupulously “tip the scale”) in the case of impeachment.

Remember the midterms. Please vote your conscience.