Opinion

Liberals' favorite fantasy: The Trump indictment

Trump can't be indicted, so why are we still talking about it?

Last week a man opened my front door and walked into the house without asking anyone's permission. He took a wallet from a bowl in the kitchen and drove to a local bank, where he used the driver's license and the bank card contained in the wallet to deposit a check he also found there. Then he came back to the house and took a beer from the refrigerator.

How many crimes did he commit? Trespassing? Robbery? Identify theft? Bank fraud? The answer is zero, because I am in fact the man in question, the owner of the house, the person identified by the license, the holder of the bank account into which the check was deposited, and the legal purchaser of the can of Coors. Funny how much of a difference that makes.

This is why I roll my eyes every time I see another story about the possibility of "indicting" President Trump for obstruction of justice — or any other crime. On Monday afternoon some 400 odd ex-prosecutors and former Justice Department officials released an open letter in which they argued that if the president had been "any other person" he would be indicted for "obstructing" an investigation that was, like all federal law enforcement activity, under his authority.

This is like saying that if I had been anyone other than myself the other day I would have been charged with entering my own domicile without authorization, impersonating myself, and raiding my own fridge. If Trump had been "any other person," he would not have been the president, which means that he would not have been in a position to do and say all the things with which the signers of the open letter find fault.

Indicting a president for an alleged federal crime is not possible. It would mean, in essence, that the president is indicting himself, which is like saying that a general is disobeying his own orders or that a pope is falling into schism with himself. The president, through his numerous deputies, authorizes, conducts, and coordinates all federal law enforcement activity. He and his advisers make prudential decisions about what investigations receive monetary and other resources. Trump could have shuttered Robert Mueller's special investigation before it had even begun.

Even people who insist that real or hypothetical statutes could create some kind of magical law enforcement authority existing outside and above the executive branch — a view rejected by many liberal legal scholars, including Justice Elena Kagan, in the wake of Justice Scalia's famous dissent in Morrison v. Olsen — have nothing to stand on here. The Mueller investigation did not even have a statutory basis — the old Ethics in Government Act of 1978 that established the constitutionally dubious vehicle for such investigations lapsed two decades ago. Instead it proceeded on the basis of Justice Department regulations dreamed up during the Clinton administration. This piece of toilet paper could have been ripped up and ignored at any time, just like any other memorandum or executive order or standing rule that has issued forth from a previous administration. President Obama was acting fully within the scope of his authority when he tossed out Don't Ask, Don't Tell; so was Trump when he threw out DACA. I happen to think that both of these decisions were bad, but that doesn't make them illegal or unconstitutional.

None of this is meant to suggest that a president's authority is truly limitless, much less that he is never be answerable to earthly justice. If a president were to commit a serious common-law offense — a murder, for example — he would almost certainly be impeached in the House of Representatives, removed from office by the Senate, and tried in the relevant state jurisdiction. The same would probably hold true for many federal crimes — though not, it would appear, those related to campaign finance law, which Trump indisputably violated in October 2016. This is the genius of the impeachment mechanism: It resolves the essential tension between presidential authority over federal law enforcement and the culpability of the man in whom that authority is vested by stripping him of the former.

Trump's reasons for complaining about the special counsel investigation and half-heartedly attempting to bring it to a premature conclusion might have been bad. They might have been world-historically evil. They are open to criticism from ordinary Americans, from journalists, and from elected officials, who are free to bring impeachment proceedings against him in the House. But made-up scenarios about what would have happened to him if he were not the president and his Justice Department were made up of people he did not appoint or have authority over are not just pointless. They are embarrassing.

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