The Trump Presidency has raised many fascinating questions. One, of course, is "How in the actual fuck did this happen?" Another is, "Hey, weren't the Republicans supposed to be the national-defense law-and-order guys?" But let's leave those aside for the moment.
Where, exactly, Special Counsel Mueller is headed with all this raises an interesting constitutional issue. It's widely assumed that the outcome will be a raft of indictments of Trump associates and family members, but that Trump himself is immune from prosecution while he's actually sitting. Thus, the worst-case outcome for him personally will be a report to Congress recommending impeachment, which his treasonous human sockpuppets in the House will ignore. (Note that he can, of course, be prosecuted once he leaves office. Whether he can dodge this bullet through a preemptive self-pardon is a topic for another post.) But that said, it's clear that the fundamental premise is wrong--there is no basis for believing that a sitting President can't be indicted.
First, there's nothing in the Constitution that says he can't. It's simply not there. It just provides a mechanism for removing him from office through impeachment. That's it. It may be objected that the notion is so inherently ludicrous that the Framers didn't think it need be addressed. Not so. They did specifically address the immunity of members of Congress, though--Art I. Sec. 6 provides them with protection from civil arrest, then a common means of enforcing debts, but specifically excludes from that immunity any criminal liability. For that reason it can fairly be inferred that the Framers had no intention of making any elected official--including the President-- immune from criminal proceedings while in office.
This conclusion is buttressed by the history of the Vice Presidency in the criminal courts. Twice, sitting Veeps have been indicted. In 1804, then Vice President Aaron Burr was charged with murder in New York and New Jersey for blowing a hole in Alexander Hamilton. Many of the Framers were still alive when it happened; Burr himself was Thomas Jefferson's second-in-command. So you would think that if the Framers had intended that the Vice President enjoy criminal immunity while in office, someone would have said something. Especially Burr, of course--but instead he fled the jurisdiction. Similarly, in 1973, Spiro T. Agnew was charged with multiple corruption offenses while still serving as Richard Nixon's Vice President. Again, no one raised vice-presidential immunity.
But wait, that's the Vice President. Not the President.
Right. Well, the Constitution draws no distinction between the two of them; in fact, it specifically says the qualifications of the former are to be no different than those of the latter, such as they are. Remember that the Framers intended that the VP job go not to the President's running mate, but his rival--that is, whoever got the second highest number of electoral votes. But because there's no basis in the text of the Constitution for presidential immunity, we have to turn to the ultimate justification--practicality. And that really doesn't hold water either.
Proponents of immunity argue that the job of President is so super-special and demanding that its holder--alone among the three-hundred-million-plus citizens of this country--should be immune from criminal liability while in office. That makes no sense on many levels, and leads to absurd results. (It must of course be noted that the Supreme Court, in Flowers v. Clinton, held not only did the President have no civil immunity while in office, he wasn't even entitled to a stay of discovery proceedings.) Let's go back to the example of Aaron Burr. What if Thomas Jefferson dropped dead--of natural causes--right after Alexander Hamilton? What would have happened to the murder charges? Dismissed? What if New York had indicted Trump for fraud in the Trump U case while he was running and he got elected anyway? Dismissed? Stayed? Or what if the President committed a crime before election and the statute of limitations expired during his term? Out of luck, Ms. US Attorney?
But that really doesn't address the heart of the practicality argument, which essentially is that you can't have the chief executive of the world's only superpower distracted by a criminal case while in office. Yet in the past thirty years we've subjected two sitting presidents to the yearlong agonies of actual and near-impeachment, and Reagan's second term was dominated by Iran-Contra. The Republic did remarkably better during those three protracted public floggings than it is now.
Yet even the practicality argument, tenuous as it is, misses the point. If there's enough evidence against a president to warrant an indictment, the remedy is not a made-up constitutional privilege. It's removal from office. But he need not resign or be impeached. If it's clear that the case will prevent him from exercising his duties, he can invoke the 25th Amendment to have the Vice President step in during his absence, to resume office if he's acquitted. If he refuses to do so, of course, then Congress would have no alternative but to act.
There's nothing in the Constitution or common sense that prohibits a presidential indictment. Let's see what Bob Mueller thinks.