During the televised testimony of Special Counsel Robert S. Mueller on July 24, the public was repeatedly treated to that enduring American creed: that “no one is above the law.” With this timely reminder for the day: “not even the president of the United States.” But there was also a refrain that I kept hearing that said, “A sitting president cannot be indicted.”
Is it, indeed, “No one is above the law”? Or, is it, perhaps, “No one except the president”? If it is the latter, how is our system different from George Orwell’s satirical description of totalitarian regimes? For in his “Animal Farm,” the mighty Pig says, “All animals are equal, but some animals are more equal than others.”
The answer provided in the Mueller Report, then by Mr. Mueller in person, was that presidential immunity is mandated by the Justice Department’s Office of Legal Counsel. Once installed, a president is immune to criminal prosecution no matter how odious the offense. Remove him first by impeachment, if you want, then, you can go after him in a court of law.
The president is indeed above the law, heretical as that may sound. The OLC rule about the immunity of a “sitting president” is repeatedly mentioned in Volume II, identified as an “opinion” as if it were a court ruling. But one looks in vain for any constitutional exegesis explaining where the OLC might have gotten that idea, for it must have some basis in the Constitution. And it did.
After describing how a president can be impeached, tried and convicted, the Constitution reads: “But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law”(I, 3), which suggests that until convicted and removed by Congress the party is in effect out of the reach of the law’s wrath. In this way, a president is above the law and is shielded from it. Indeed, one might rephrase the old adage by saying, “No law is above the Constitution.”
The framers evidently felt that the nation’s commander in chief cannot afford to be mired in legal contests, civil or criminal, some politically motivated, no doubt, intent on doing him or her harm. But was it wise to shield him against these challenges thus, as if he were above the law? Wouldn’t that, in effect, make him a “sovereign” inside a sovereign nation?
Once, in fact, the sovereignty claim was made in broad daylight by a humbled and bitter former president, Richard M. Nixon, which was shortly after he had been forced out of office under the threat of impeachment. He should’ve checked his Political Science 101 notes before showing up for that televised interview with David Frost.
The only sovereign this writer knows is “We the people,” with which the preamble to the U.S. Constitution begins. Ronald Reagan once called that majestic phrase the “three most beautiful words in the English language.” I couldn’t say, but there it is!
Wisely or not, the framers did grant that blanket immunity to the commander in chief, though carefully reassuring the reader, in another sentence, that it’ll all be withdrawn once the president leaves office. This is why, so the Mueller Report explained, the special counsel and his team studiously avoided passing judgment in the “obstruction of justice” phase of their report, even while collecting and presenting evidence to prove it. All this so as not to “potentially preempt constitutional processes for addressing presidential misconduct.” Translation: “We don’t do impeachments.”
Is Donald Trump above the law? I’m afraid he is, distressing as that might sound to some readers. And we’re stuck with this reality, at least for now. But then, I’m not sure if presidential immunity is such a bad thing; it just has the wrong smell about it. Indeed, we may never know the full scope of this subject of presidential misconduct until this impeachment thing has played out. “The price of liberty,” indeed, “is eternal vigilance.”
Kang is a professor of political science emeritus at Hartwick College.