A Proposed Constitutional Amendment

President Trump’s attorneys have argued that the president, while in office, is not only immune to indictment, but also is immune even to investigation for crimes, including, incredibly, shooting someone on Fifth Avenue. (His attorneys actually have argued this in court!) Moreover, the Trump legal team has asserted that this immunity extends even to the president’s commercial enterprises.  To any rational and intelligent person, these arguments are, to put it in technical terms, totally bonkers. Apparently, however, we must wait until the courts officially declare these assertions of immunity invalid before, for example, Mr. Trump’s tax returns can be turned over to authorities investigating possible misdeeds by him.

Before now, one would not have assumed that the president is, for all practical purposes, completely above the law. The courts may make this clear, but it is perhaps time for the matter to be resolved once and for all by constitutional amendment.

In order to clarify that the United States of America has a president and not a king, I propose the following as the 28th amendment to the Constitution:

Universal Administration of Justice

Neither the President, nor the Vice President, nor any other person subject to the jurisdiction of the United States is immune to Investigation, Indictment, or Arrest for just cause except as provided in Article I, Section 6.

Article I, Section 6, Clause 1 says, in part:

[Senators and Representatives] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

One may quibble about my title, capitalization, and whether the president and vice president deserve any immunity at all. My wording is not cast in stone; I’m sure it can be improved by constitutional scholars.

Passing such an amendment to the Constitution should be straightforward, but, in the present environment, passage may be opposed aggressively by Republicans. Amending the Constitution to assure uniform administration of justice may have to await the reform or destruction of the Republican Party. Let us not forget the matter once that occurs.

Let’s Add a Different Presidential Primary Debate to the Schedule

When two additional Democratic presidential candidates who were not invited to the September debate qualified for the October event, I had hoped that the debate would be conducted on two nights, with six candidates participating in each debate. Clearly, having 10 candidates was too many, and the 12 crowded onto the stage last night were many too many. As usual, the top candidates got most of the air time. As is becoming common, no one scored big, and no one committed fatal mistakes.

We know that Biden, Sanders, and Warren are the current leaders of the pack, but it is also true that there is significant talent in the pool consisting of the nine other Democrats who sparred last night. Each of those other candidates, however, had limited time to talk.

The reality is that early Democratic front-runners for their party’s nomination often do not become the party’s standard-bearer. Think Carter, Clinton, or Obama. (Even Trump himself was an early long-shot.) Unless the seeming also-rans have significant opportunities to be seen in action by the public, the choice of candidates in 2020 will be drawn from among contenders who are too old, too depleted, and too radical.

Of course, as long as less popular candidates can accumulate funds from their most ardent fans, they can continue to toil on the campaign trail in hopes of sparking interest among the rest of the electorate. But continuing to sponsor debates that favor the already popular candidates makes it hard for anyone in the rest of the pack to gain traction.

So, here is my idea to level the presidential-primary playing field a bit. Let’s sponsor a debate—it can even use the standard format, even though that could be greatly improved (see “A Different Kind of Presidential Candidate Debate”)—that includes all the major candidates except the top three. In the current instance, that would leave 9 participants, a group that would not include Sanders, Biden, or Warren.

My second-tier debate would allow participants more time to speak and to make their case to the public for their candidacy. Of course, the debaters could simply take the opportunity to trash the front-runners, but I think that either would not happen or would not dominate the conversation. The debate would help Democrats decide which candidates are promising, perhaps surprisingly so, and which should go back to whatever they had been doing. It might even help to winnow the field faster.

What do we have to lose? What about it, DNC?

Further Thoughts on Impeachment

I have already written two posts concerning the possible impeachment of President Donald Trump (see “Don’t Impeach Trump” and “Slow Order for the Impeachment Train”). Here, I want to comment on the Trump administration’s reaction to the official beginning of an impeachment inquiry and to add to what I have already said about a possible impeachment.

The Trump Attack on Impeachment

Most readers no doubt recognize that President Trump’s attack on the impeachment inquiry by the House of Representatives recently announced by Speaker Nancy Pelosi is diversionary and without merit. As a help to anyone who might have to argue the validity of what the House is undertaking with a member of the Trump cult, I will set forth the case for what is taking place.

Mr. Trump has argued that the pursuit of articles of impeachment by House Democrats is merely an attempt to nullify the 2016 election. On the contrary, his disparagement of the House action and his categorical refusal to allow co-operation with the inquiry by the executive branch is an attempt to nullify the Constitution itself.

Article I, Section 2, Clause 5 of the Constitution reads

The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.¹

Reasons for impeachment are set forth in Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Not only members of the House but, judging by recent polls, a majority of voters believe that there is a reasonable case to be made that President Trump is guilty of infractions of the sort listed in Article II.

If the president is impeached by the House of Representatives, the Senate is empowered to conduct a trial of the president according to Article I, Section 3, Clause 6:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds [sic] of the Members present.

Article III, Section 2, Clause 3 further clarifies the special status of an impeachment trial:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Mr. Trump has referred to the action of the House as a “coup,” by which, presumably, he means a coup d'état, which dictionary.com defines as

a sudden and decisive action in politics, especially one resulting in a change of government illegally or by force.

What is happening in the House is, of course, not illegal, not being effected by force, and is certainly neither sudden nor decisive. (Only the Senate has the power to make impeachment decisive.)

Counsel for the president has called the House action “unconstitutional,” but, as illustrated above, this is not the case.

Mr. Trump has also asserted that no impeachment investigation can go forward without a vote to do so by the entire House. The Constitution is silent on such a reputed requirement and no House rule demands it.

Impeachment Consequences

Article I, Section 3, Clause 7, enumerates the consequences of impeachment and conviction:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This provision makes clear that, if a president is convicted by the Senate, acting on a bill of impeachment passed by the House of Representatives, he or she is to be removed from office and may be subject to prosecution for any crimes committed in office. Because the Senate trial need not involve actual statutory crimes, a cashiered president may or may not face legal jeopardy for actions taken while in office.

In the current circumstances, it appears that President Trump will, at a minimum, be charged with soliciting something of value for his re-election campaign from a foreign party, which is an actual crime. If convicted by the Senate, Mr. Trump could be therefore be prosecuted after leaving office for it, for misrepresenting payment to Ms. Stormy Daniels, and for other offenses.

The removal of the president from office would, of course, elevate Vice President Mike Pence to the presidency. As noted in my earlier essays, this raises the question of whether President Pence would immediately pardon the ex-president for past and future crimes, as President Gerald Ford did for Mr. Richard Nixon after he resigned from office in the face of certain impeachment and conviction.

As it happens, President Pence would not find himself in quite the same position as Mr. Ford. This is by virtue of Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment [emphasis added]. 

Mr. Ford could pardon Mr. Nixon because his predecessor resigned. Had the Senate convicted President Nixon and removed him from office, he could have been indicted and tried for obstruction of justice, etc. I see two lessons to be learned here.

First, President Trump can maintain his ability to be pardoned by a President Pence by resigning before he can be impeached and convicted. This is the Nixon strategy. As I noted previously, however, he can only be pardoned for offenses against the United States and could still be prosecuted for violating state (e.g., New York) laws. Trump’s self-importance makes resignation unlikely unless the march to conviction in the Senate seems inevitable.

Perhaps more significantly, the nature of the articles of impeachment drawn up by the House and the handling of those articles by the Senate make a difference. If the president is charged and convicted of only one offense, he could be prosecuted for that offense after leaving office, but he could be pardoned for all other crimes he may have committed. Even if the House impeaches the president for many offenses, the Senate could remove him from office by voting to endorse only one. This could allow Mr. Pence to offer his former boss at least a partial get-out-of-jail-free card.

If Trump leaves office before the end of his term, I hope that he can be indicted, convicted, and imprisoned. In reality, he is most likely to serve jail time by being beaten in the November 2020 election and prosecuted under a Democratic president. In normal times, this would seem the actions of a banana republic, but Mr. Trump’s outrageous behavior might convince citizens that he is simply receiving his just rewards.

Can Trump leave office early and not be pardoned by Mr. Pence? Probably not. Although Mr. Pence’s pardon power is somewhat limited, Trump’s pardonable offenses are legion. Congress could pass a bill—one unlikely to become law—to the effect that a president cannot pardon a convicted or resigned president. The Supreme Could would likely find such a law unconstitutional. Alternatively, though equally unlikely, Congress could make it clear that it would consider President Pence’s pardoning Trump an impeachable offense. This would be kosher, but, removing Pence from office would install Pelosi, a Democrat, so that circumstance seems very farfetched indeed.

I continue to think that investigating Trump, even impeaching him without conviction is the best plan. Democrats in the house can build a strong case against the president. Senate Democrats are numerous enough to keep Trump from being convicted and therefore subject to later prosecution.


NOTE: All references to impeachment in the United States Constitution are discussed in the above essay.

_________
¹The constitutional quotations are from the National Archives.