DOUBLE JEOPARDY OR NO JEOPARDY?

More than 1000 former federal prosecutors have publically stated they would prosecute Donald Trump for obstruction of justice were he not President of the United States. Those former prosecutors made that declaration after Special Counsel Robert Mueller decided he couldn’t prosecute Trump because of Justice Department policy. That policy, stated in an October 16, 2000, Office of Legal Counsel (OLC) opinion, prohibits indictment of a sitting President. As long as Trump remains in office, no federal grand jury will hand down charges against him, regardless of the evidence that might otherwise compel such an action.

The OLC policy, which isn’t in the constitution, and a long standing American tradition against prosecuting former political opponents, could combine in assuring the government never prosecutes Trump for the acts spelled out in the Mueller Report. This circumstance carries broad and troubling implications for the rule of law in America. The OLC policy, and that tradition, could mean getting elected President provides a permanent get-out-of-jail-free card for seriously bad actors.

Trump’s Situation

Special Counsel Mueller found ten acts by Trump that might constitute obstruction of justice. Citing the OLC opinion, Mueller declined prosecution but specifically said, “while this report does not conclude that the President committed a crime, it does not exonerate him.” Any fair reading of the Mueller Report recognizes the Special Counsel would have indicted Trump but for the OLC policy. Mueller’s decision, therefore, leaves three options for dealing with Trump’s possible crimes: (1) impeachment and removal from office by Congress, (2) prosecuting him after he leaves office, or (3) letting him slide.

Impeachment, being the ultimate political act, may or

may not happen. No one  currently thinks the Republican Senate will convict Trump. Calls for Trump’s prosecution after his term ends have started, including from House Speaker Nancy Pelosi. The problem lies in that American tradition – we don’t prosecute former Presidents, no matter their crimes in office.

Twice in modern times, the issue has arisen of what to do, after he leaves office, with a President who has committed criminal acts. It also arose in a hypothetical scenario involving Trump and his 2016 opponent, Hillary Clinton. The way the issue has been handled in each case suggests we shouldn’t hold our breath for the possibility of Trump’s post-presidency prosecution.

The History

Richard Nixon resigned before the House impeached him and before the Senate likely convicted him. Out

of office, Nixon faced obstruction of justice charges and perhaps others. Before Special Prosecutor Leon Jaworski could charge Nixon, President Gerald Ford pardoned him for all offenses against the United States. By accepting the pardon, Nixon admitted guilt, but avoided indictment, trial, and possible jail time. Ford issued the pardon in the name of putting Watergate behind the nation, potentially healing America’s wounds. The pardon probably cost Ford re-election in 1976, but he may have achieved his objective of tamping down the furor over Watergate and helping the country move on.

Republicans in the House impeached Bill Clinton in 1998 over his affair with Monica  Lewinsky. The

Senate acquitted him, essentially determining sex isn’t a reason for removing a President from office. But, Clinton didn’t get off without a price. In what amounted to a plea bargain with Independent Counsel Robert Ray that avoided prosecution for perjury and obstruction of justice, Clinton accepted a five-year suspension of his Arkansas law license and paid a $25,000 fine. He also resigned from the U.S. Supreme Court bar.

The Nixon and Clinton experiences, for different

Nixon and Cllinton

reasons, cast doubt on the possibility of a post-presidency prosecution of Trump. Trump isn’t a lawyer, so he can’t forfeit a law license, but prosecutors might extract fines and business concessions in exchange for not indicting him. A Democratic successor probably won’t pardon him as Ford did for a fellow Republican, but he or she could find other ways of shutting down a prosecution.

The Tradition

In 2016, Trump mused out loud about the possibility,

if elected, of ordering that his  Justice Department prosecute Hillary Clinton over her e-mail scandal. Even Republican-leaning pundits decried such an action, arguing that bringing down the wrath of the criminal justice system on a former opponent better fit a banana republic than a country committed to the rule of law like the United States. It’s just something we don’t do, they said. 

Democratic 2020 Presidential candidates have been reluctant to endorse the idea of prosecuting Trump after he leaves office. They understand the precedent that could set. Prosecuting a former opponent, even one like Trump, opens the possibility of future politically motivated prosecutions for trivial or made-up offenses much more about settling scores than seeking justice.

And the Rule of Law?

Between the OLC policy, which some Democratic candidates say they’d change, and the tradition, it appears the rule of law could lose big. While he’s in office, Trump, if he’s not impeached and convicted, pays no price for his sins. Once he’s out, especially if its 2021 and the statute of limitations hasn’t run on his alleged crimes, his successor may not allow prosecution in the name of preserving our reputation as a nation that doesn’t permit prosecutions of former political opponents.  

So, when does a bad actor President get punished?  What do we mean when we say we are a nation of laws, not people, and no one is above the law? Do we still have the rule of law?  We’re going to have to answer these questions at some point, perhaps the sooner the better.  

PROTECTING ROBERT MUELLER: ALLOWING THE SPECIAL COUNSEL TO GET TO THE TRUTH

Should President Trump fire special counsel Robert Mueller?  Should Mueller get more time to finish his investigation?  Not a day goes by now without a suggestion that Trump will soon set in motion events leading to the firing of the special counsel.  Since only Deputy Attorney General Rod Rosenstein can actually dismiss Mueller, presumably Trump would start by ordering Rosenstein to fire Mueller.  Should Rosenstein refuse, Trump would fire Rosenstein and replace him with someone who would fire Mueller, raising the specter of the 1973 Saturday Night Massacre. Richard Nixon had to dismiss both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus before finding someone in the Justice Department – Solicitor General Robert Bork -- who would carry out his order to fire special prosecutor Archibald Cox.  The Saturday Night Massacre, of course, ultimately led to appointment of another special prosecutor, Leon Jaworski, and paved the way for Nixon’s resignation in the face of certain impeachment.

Credible news reports indicate Trump ordered Mueller’s firing in June 2017 and tried again in December 2017.  The first time, Trump backed off because White House counsel Don McGahn threatened resignation if Trump went through with the dismissal.  In December, Trump discovered reports Mueller had subpoenaed some of his bank records weren’t

true and decided not to order Mueller’s dismissal.  These false starts don’t mean Trump won’t succeed in getting the special counsel fired.  Despite claims by Republicans, like departing House Speaker Paul Ryan, that they “don’t think” Trump will have Mueller fired, lots of people in Washington now believe it has become a matter of when, not if.

CONGRESS TO THE RESCUE

So what could stop Trump from successfully having Mueller axed, halting the Russia investigation?  One easy answer in theory that’s very difficult practically lies in congressional action.  Later this month, the Senate Judiciary Committee will vote on a bill sponsored by two Republicans – Thom Tillis of North Carolina and South Carolina’s Lindsey Graham – and two Democrats -- Chris Coons of Delaware and Cory Booker of New Jersey.  The legislation, identical to a measure introduced in the House by Pennsylvania Republican Charlie Dent and Vermont Democrat Peter Welch, would set specific standards for firing a special counsel and put review of such a firing in the hands of a three-judge federal panel.  Proposing, and maybe passing the bill, is easy.  Then the hard part starts.

First, as Republican Senator Susan Collins of Maine said recently, Trump would never sign such legislation.  It seems certain, in fact, he would veto that kind of measure.  Congress rarely overrides Presidential vetoes, especially ones of controversial bills like this one.  Veto overrides require a two-thirds vote in both chambers.  Given the current makeup of the House, assuming all 192 Democrats vote to override, passing the bill over Trump’s veto would require 99 Republican votes to get to the necessary two-thirds, 291 votes in the 435 member lower chamber.  In the Senate, assuming all 47 Democrats and the two Independents who caucus with them – Bernie Sanders of Vermont and Angus King of Maine, support an override, it won’t happen without 18 Republican votes to get to 67 for the two-thirds requirement.

Those numbers don’t even take into consideration the potential constitutional problems with legislation protecting Mueller.  Such a measure would thrust Congress into an executive branch personnel matter that might implicate separation of powers concerns.  Some constitutional scholars think impeachment represents the only way Congress can override such a Presidential action.  Senator Collins, in fact, agreed Congress would “send a message” if it passed such a law, but acknowledged it might not stand if challenged in the courts.

OTHER WAYS

Other things are now in the picture that potentially can keep the investigation going, even if Trump fires Mueller.  If Trump starts with firing Rosenstein, the Senate could require a promise from a new Trump appointee for Deputy Attorney General that he or she would have to appoint a new special counsel (AG Jeff Sessions has recused himself from Russia-related matters).

The recent FBI raid on the offices and residences of Trump lawyer Michael Cohen offers another vehicle for keeping the investigation

going, even if Trump succeeds in having Mueller sacked.  The United States Attorney for the Southern District of New York, Geoffrey Berman, initiated the Cohen raid after a referral from the special counsel’s office.  That part of the investigation, therefore, will continue, Mueller or no Mueller.  It’s been suggested this investigation imperils Trump more than the Mueller probe because it could lead to review of Trump’s real estate and other business practices going back years, not just his possible collusion with the Russians in interfering in the 2016 election.  

Finally, if all else fails, some of Trump’s alleged transgressions related to alleged collusion with the Russians, possible obstruction of justice, and money-related crimes might also have violated state laws.  Prosecutors in New York and other jurisdictions could pick up the investigation, though they might have to limit their probe in ways federal prosecutors do not.

Trump may well fire Mueller. As Trump likes to say, “We’ll have to see what happens.”  One thing that’s not happening is a complete shutdown of the investigation into Trump’s actions.  That will continue.