No get-out-of-jail card

By Jules Witcover

Special Counsel Robert Mueller, in his handoff to Congress to pursue impeachment of Donald Trump, cited a Justice Department edict: No sitting president can be indicted or criminally prosecuted, on grounds that doing so would unduly hamper the executive branch in the immense task of running the government,

The ruling by the Office of Legal Counsel has gone largely unchallenged in recent years. In 1997 though, the Supreme Court ruled Bill Clinton could be sued in a sex scandal, and year later he was impeached by the House but acquitted by the then Democratic-controlled Senate.

Since then, there has been continued controversy within legal circles over the edict. On its face, it would seem to clash with the popular concept that no man or woman is “above the law.” Or as the street axiom might put it, any public figure ought to be able to “walk and chew gum at the same time,” that is, do more than one thing simultaneously.

Mueller’s resort to the no-indictment escape hatch has enabled him to maintain his reputation for coloring within the lines of strict legalism. He thus has let himself off the hook of rendering a judgment on Trump’s guilt or innocence of obstruction of justice in the Special Counsel’s Office investigation into Russian interference in the 2016 election.

Conveniently, the now-retired special counsel has fulfilled his legal obligations as well as those of his conscience by handing the political hot potato to Congress, to whom the Constitution has assigned the role of judge and jury on presidential impeachment.

The notion that the indictment of a sitting president on allegations of criminal behavior should be off the table because it might impose an impossible hardship on the executive branch would be laughable if the stakes for responsible leadership were not so high.

There’s quite a difference between Richard Nixon, who escaped impeachment for covering up a robbery by resigning, and Clinton, who got caught and was impeached for using the Oval Office as a sexual playpen, and now Trump in his continuing despicable behavior.

The president’s evident bad conduct has included serial lying, erratic political judgment and attacks on the very pillars of democratic governance. All of it has made Trump demonstrably ill-suited for conducting the domestic and foreign business of a responsible presidency. The notion that a criminal indictment for obstructing justice would make matters much worse in this administration nation defies imagination.

Many Americans in the current situation look to the Supreme Court to rule eventually on whether the Trump presidency can wrest Congress’s power of the purse from it — the constitutional right of the legislative branch alone to raise the money for all federal activities.

This right is at the core of the separation of powers among the executive, legislative and judicial branches. Equally critical should be what the Supreme Court has to say about the chief executive having immunity from indictment in the event that he or she is found to have committed criminal acts.

The notion that his or her official duties are so great and numerous that the executive branch might crumble under the strain seems the stuff of cheap political novel. If a president is not made of firmer stuff than that, he or she should not be in the presidency in the first place.

Clinton demonstrated after his impeachment and acquittal that he could still strongly finish his second term in the Oval Office.

After the current, even more noxious administration is over, the highest court would do well to address directly this free pass given by the Office of Legal Counsel to presidents accused of malfeasance in office.

Donald Trump holds that legalistic get-out-of-jail-free card until Congress under its impeachment mandate rules otherwise, by imposing threatened subpoenas and inquiries by some or all of the six committees poised to look further into his conduct.

House Speaker Nancy Pelosi’s strategy of seeking more evidence of Trump’s multiple abuses of his presidential power before initiating impeachment is both prudent and fair. Congress should now get on with it with no further delay.

Jules Witcover’s latest book is “The American Vice Presidency: From Irrelevance to Power,” published by Smithsonian Books. You can respond to this column at

By Patricia Older

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