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Who says a sitting president can’t be indicted?

Who says a sitting president can’t be indicted?

By Martin Dyckman • Guest Columnist | No one in America should be above the law, least of all the person most responsible for enforcing it. But there he is: Donald Trump, preening and posturing and scoffing at the Constitution like some latter-day Mussolini, his conceit inflamed by the Justice Department’s policy that a sitting president can’t be indicted.

Nothing in the Constitution or any law Congress made says so. 

The policy, dating to the death throes of another criminal administration — Nixon’s — contends that the indictment of a president would in effect paralyze the government. It would “impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

So here’s a timely question to those running for Congress in the 11th District: What are you going to do about that?

It would have been pointless to ask that of Mark Meadows, who would have been a perfect courtier to Louis XIV, George III or anyone else asserting the divine right of kings. Meadows now having folded like the gerrymandered map that elected him, there’s a decent chance that we’ll finally have a representative who opposes an imperial presidency.

The Justice Department’s pretext could be undercut by providing another way for the executive branch to perform its constitutionally assigned functions. In fact, that way already exists. All that’s necessary is for the Congress to empower the Supreme Court to suspend a president who’s under indictment — or impeachment for that matter — and put the vice president in charge at least temporarily.

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It’s in the 25th Amendment. Its adoption was prompted by the assassination of John F. Kennedy, which left the vice presidency vacant when Lyndon Johnson succeeded him. Two elderly congressional leaders were next in line.

The 25th Amendment allows the president to appoint a vice president, with the consent of both houses of Congress. Nixon named Gerald Ford to replace the disgraced and resigned Spiro Agnew, and Ford chose Nelson Rockefeller after Ford succeeded the disgraced and resigned Richard Nixon.

The drafters also had in mind how Woodrow Wilson was severely disabled by a near-fatal stroke 17 months before the end of his term in 1921. Although he appeared to govern from his sick room, his wife, Edith, kept nearly everyone else away. Some said she made herself the president in fact if not in name.

Under the 25th Amendment, a president can certify to the Congress that is unable to carry out his duties and reclaim them when he declares that “no inability exists.” If he or she is unable or unwilling to declare an inability — as, say, a president in a coma would be — the necessary step can be taken by the vice president and a majority of the Cabinet.

It can also be put in motion by “such other body as Congress may by law provide.” The Supreme Court is, logically and ideally, that “other body.”

The Justice Department’s pretext, as reiterated in 2000 when President Clinton was potentially indictable, takes passing and grudging notice of the 25th Amendment, but essentially dismisses it by saying it should not be read to “withdraw a previously established immunity.”

That was sheer claptrap. There was no “previously established immunity,” except for the Justice Department’s own outrageous policy, and even if there were, a constitutional amendment could absolutely override it.

Robert Mueller, the special counsel investigating Russia’s efforts to elect Trump, was faithful to a fault to the policy. Although he identified 10 instances of obstruction of justice that would have gotten anyone else indicted, he said the policy kept him from deciding whether Trump should be. He pointedly refused, however, to say that the probe had cleared him.

Taking entirely the wrong cues from that, Trump flagrantly broke the law to withhold from Ukraine money that Congress has authorized, hoping to extort that vulnerable country’s president into helping him smear Joe Biden. And, for all his boasting about his innocence, Trump has been silencing the very witnesses and suppressing the precise documents that he claims could rebut the impeachment charges. That’s not the conduct of an innocent man. Imagine what he could do to the evidence if a criminal indictment were pending.

It’s asking too much of human nature and political reality to expect a president to suspend himself in such a situation, or for his vice president to take action instead. 

That’s why the duty should be established and given to the one institution Americans trust most, the Supreme Court. By so doing, Congress would effectively erase the Justice Department’s version of “the king can do no wrong.” As the 11th District candidates come in search of money and support, I’ll be asking them about this.  I hope that everyone will.  

(Martin Dyckman is a retired journalist who now calls Western North Carolina home. This email address is being protected from spambots. You need JavaScript enabled to view it. )

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