Just allow presidential indictments

The easiest way to have sidestepped the markedly unproductive and repetitive congressional hearing with former Special Counsel Robert Mueller on Wednesday would have been for members of Congress to personally read his report in its entirety, a task which the naive among us might have expected them to complete anyway.

The best way, however, would have been to make it possible for sitting presidents to be indicted.

This is not as radical as it might sound. (Some legal experts believe it's perfectly possible already, but the Justice Department disagrees.) You don't have to go full French Revolution, ready to lop off the head of state, to make the occupant of the nation's highest office answerable to the nation's criminal code — or at least more easily subject to legal consequences.

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

Other countries do something like this already. In some European nations, the chancellor or prime minister enjoys special legal protections, but they are fewer and more easily overcome than those accorded to our president.

In France, for example, recent reforms expanded the causes for which the president may be impeached from "high treason" to any "breach of their duties that is clearly incompatible with the exercise of their mandate." In Germany, only a simple majority vote in parliament is required to remove immunity from the president or chancellor, the latter of whom may also lose office — and immunity with it — far more easily than our system allows. In Britain and Commonwealth countries like Australia and Canada, members of parliament, including the prime minister, do not have immunity from prosecution for crimes committed outside of office, and a parliamentary vote can void immunity for alleged crimes in office, too.

Particularly interesting in this regard is Israel, where the attorney general is presently preparing to indict Prime Minister Benjamin Netanyahu on corruption charges including bribery and breach of trust. Much like his counterpart here in the States, Netanyahu has responded to investigation of his behavior with vehement protest. No one else would be exposed to this "outrageous" and "unprecedented witch hunt," Bibi insists. Yet despite his objections, Netanyahu's prosecution appears likely to proceed to court, helmed by his own former Cabinet secretary.

When I say American presidents should likewise be subject to criminal prosecution, I am not coyly communicating a belief that President Trump should be prosecuted for a crime. I am saying it would be far easier for a fair observer to decide whether he should be prosecuted were prosecution now possible. (It would also be a positive step toward reining in the imperial presidency, whose current immunity has a real l'état, c'est moi vibe.)

The limiting effect of presidential immunity was a consistent feature of Mueller's testimony Wednesday. His team "at the outset determined that we — when it came to the president's culpability, we needed to go forward only after taking into account the [Department of Justice's Office of Legal Counsel (OLC)] opinion ... that a sitting president cannot be indicted," he told Rep. Jerry Nadler (D-N.Y.).

"Is it correct that if you had concluded that the president committed the crime of obstruction, you could not publicly state that in your report or here today?" Nadler later asked. "Well, I would say you could ... that you would not indict," Mueller replied, "and you would not indict because under the OLC opinion a sitting president ... cannot be indicted."

This labyrinthine language will only prolong the confusion and debate sparked by what may be the Mueller report's two most parsed sentences: "If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment."

The "applicable legal standards," as Mueller reiterated Wednesday, include the OLC prohibition on indicting a sitting president. So the special counsel's team did not announce a conclusion on whether the president committed criminal obstruction of justice significantly because it could not indict him for the crime.

That non-answer is endlessly flexible and divisive: For the president's defenders, the important takeaway will always be that there was no indictment, so to continue harping on the subject is unfair sabotage of an innocent man. (Indeed, some, like Rep. Jim Sensenbrenner [R-Ill.] at the hearing, will argue that any investigation of the president is inherently unfair because the lack of indictment is a foregone conclusion.) For Trump's foes, the obvious implication is that the only reason Mueller didn't indict the president for incontrovertible crimes is because he wasn't allowed to.

Were it possible to indict a sitting president, this question in theory could be settled. We could dispense with all these hypotheticals and double negatives. We could finally get a straight answer from Mueller in the form of a presidential indictment — or none.