The president and the law

As I taught separation of powers in my constitutional law class this semester, I realized how much several distinct issues have been conflated in the discussions concerning President Donald Trump. Can a president engage in the crime of obstruction of justice? Can a sitting president be indicted? What is the standard for impeachment? Is there reason to believe that Trump has committed impeachable offenses? Each question requires separate analysis; for some there is a clear answer, for others the law is uncertain.

Can a president engage in obstruction of justice? Trump's private lawyer, John Dowd, has said the president "cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case." This is reminiscent of Richard Nixon's statement in an interview with David Frost in 1977 (three years after Nixon resigned from the presidency): "Well, when the president does it, that means that it is not illegal." This is just plain wrong. Imagine that a president bribed a witness to keep the person from testifying or encouraged witnesses to commit perjury or intentionally destroyed evidence related to a pending criminal prosecution. All of these are acts of obstruction of justice and the president no authority to violate criminal statutes. Nixon's statement would mean that literally the president could get away with murder or violating any other criminal statute and that simply cannot be right.

Can a sitting president be indicted? This is a much harder question and one which never has been resolved. In March 1974, the Watergate grand jury named Richard Nixon an unindicted co-conspirator for his role in the Watergate cover-up because it did not know whether it could indict a sitting president.

Some believe that the only remedy against a president is impeachment and removal from office. The concern is that a criminal prosecution obviously would greatly disrupt the functioning of the presidency and raises the specter of a sitting president facing imprisonment.

Yet, I am among those who believe that the president, like anyone else in society, can be criminally indicted and prosecuted. One of the most basic aspects of the rule of law is that no one, not even the president, is above the law. Relying solely on impeachment means that even serious criminal wrong-doing can go unchecked if Congress for political reasons chooses to ignore it. Also, there is a crucial difference between the sanctions of the criminal law and removal from office. All others in the federal government, such as federal judges and executive officers, who break the law face both the possibility of criminal punishment and removal from office. This should be no different for the president.

What is the constitutional standard for impeachment? Article II, Section 4, of the Constitution provides for impeachment for "Treason, Bribery, or other high Crimes and Misdemeanors." There is no definitive answer to what constitutes a "high crime or misdemeanor." There is no Supreme Court case addressing it. Having researched this extensively, I would say that the Constitution provides for impeachment if there is a serious abuse of power. A criminal violation could be a basis for finding a "high crime or misdemeanor," but it is not required.

There have been three serious efforts to impeach a president. Andrew Johnson was the first president to be impeached. He was impeached in 1867 for firing Secretary of War Edwin Stanton in violation of the Tenure in Office Act. After the end of the Civil War, Congress became increasingly frustrated with Johnson, a Southerner from Tennessee, presiding over Reconstruction.

Congress adopted the Tenure in Office Act of 1867 to keep Johnson from firing Lincoln's cabinet. The act declared that such a firing would be deemed a "high misdemeanor." The Supreme Court subsequently indicated that the Tenure in Office Act likely violated separation of powers. Nonetheless, the House impeached and Johnson avoided removal by just one vote in the Senate.

The second serious attempt to impeach a president occurred in 1974 and was directed against Richard Nixon. The House Judiciary Committee voted three articles of impeachment. One was for obstruction of justice in connection with the Watergate cover-up; one was for using government agencies, such as the FBI and the IRS, for political advantages; and the final article was for failing to comply with subpoenas. Before the matter could be considered by the entire House, Nixon resigned. Some of the articles of impeachment were for criminal acts; some were for abuses of power that were not crimes.

President Bill Clinton was impeached by the House of Representatives in 1998, but the Senate did not convict him. Clinton lied under oath during a deposition when he said: "I have never had sexual relations with Monica Lewinsky. I've never had an affair with her." The House of Representatives, voting almost entirely on party lines, impeached Clinton for perjury before a grand jury and for impeding the administration of justice. The Senate convicted on neither count and Clinton finished his term in office.

Perhaps most of all, these incidents show that there is no legal definition of what constitutes a high crime or misdemeanor, and the answer in Congress always is likely to be political. The Johnson and the Clinton impeachments were highly partisan. These precedents, along with what is known about the phrase, "high crimes and misdemeanors," support the view that it is about a serious abuse of power while in office. A criminal act is sufficient to meet this standard, but it is not necessary.

Is there a basis for investigating President Donald Trump for "high crimes and misdemeanors"? I assume that Robert Mueller is investigating whether Donald Trump engaged in obstruction of justice, such as in helping to craft the false statement by his son, Donald Trump Jr., and attempting to thwart the investigation into the Russian efforts to interfere with the 2016 presidential election. At this stage, we need to wait to see the results of Mueller's investigation, assuming he does not get fired.

But it also must be remembered that Trump is violating the Constitution literally every day in receiving benefits in violation of the "emoluments" clauses. Article I, Section 9 of the Constitution prohibits any person holding a position of trust in the federal government from receiving any present or emolument from a foreign state. The Constitution broadly prohibits receiving any benefit from a foreign government. Yet, Trump constantly is receiving economic benefits from foreign countries, including through hotels owned in his name.

For example, China granted the president valuable trademarks after denying them to him for years. Within days after receiving these, Trump reversed course on a key issue affecting China, shifting from entertaining a pro-Taiwan policy to supporting a "one China" policy.

Article II, Section 1 of the Constitution says that while in office, the president shall receive compensation for serving, but shall not receive "any other emolument from the United States." This provision was meant to keep a president from using his position to receive other benefits from the federal government. Yet, Trump is constantly doing just that, as buildings he owns are renting space to the federal government and he is personally profiting.

Such serious constitutional violations can be deemed "high crimes and misdemeanors." Whether politically it is desirable to pursue impeachment now is a very different question from the legal one.

None of these questions is going away and some are likely to become even more salient as the Mueller investigation continues. It is incumbent on law professors and lawyers to provide clear analysis and keeping distinct questions separate is crucial.