In an interview with NPR, Sen. Kamala D. Harris (D-Calif.) opined that if the facts warrant it, President Trump should be indicted for crimes outlined in Robert S. Mueller III’s report:

"There has to be accountability," Harris added. "I mean look, people might, you know, question why I became a prosecutor. Well, I'll tell you one of the reasons — I believe there should be accountability. Everyone should be held accountable, and the president is not above the law."
The former San Francisco district attorney and California attorney general said she wasn't dissuaded by the prospect of a former American president facing trial and a potential prison sentence. "The facts and the evidence will take the process where it leads," she said.
“I do believe that we should believe Bob Mueller when he tells us essentially that the only reason an indictment was not returned is because of a memo in the Department of Justice that suggests you cannot indict a sitting president. But I’ve seen prosecution of cases on much less evidence.”

On one hand, Harris is right: If we won’t impeach or indict a president in office, the only real reaffirmation of the primacy of the rule of law would come in a criminal trial after he leaves office. And yet, the same considerations that motivated President Gerald Ford to pardon Richard M. Nixon should give us pause. Do we open ourselves to rounds of tit-for-tat prosecution of political enemies? Do we create even more polarization and political ill will, perhaps crippling the next president? And then there are the practical considerations, such as finding an impartial jury.

There are two responses, neither of which is satisfactory.

First, Trump could, in the event he is defeated in 2020, leave before the next president is sworn in, allowing Vice President Pence to assume the presidency and pardon him. That would be a catastrophe for Pence, but the country got past the Nixon pardon (although the GOP paid a price in the 1974 and 1976 elections). The problem here is that it would most certainly smack of a quid pro quo, opening up Pence to charges of bribery (“I’ll leave office if you pardon me”) if he acceded to Trump’s game plan.

Second, we simply leave prosecution to the discretion of the next attorney general as to what if any charges are brought (only clear, unequivocal instances of obstruction should be considered), what sentence should be handed out and what plea deal might be arranged. We trust juries to do their job. And we recognize that obtaining a conviction does not necessarily mean actual jail time for Trump. (Moreover, there are other off-ramps that might open up depending on the findings of the Southern District of New York prosecutors. If, for example, he committed tax or other financial crimes before he was president, we should have no qualms about proceeding with these cases.)

The better solution to the issue of criminal accountability is to revoke the Office of Legal Counsel memo that opines a president cannot be indicted in office. The OLC arguments have continued to be a matter of strong debate among constitutional scholars as to whether impeachment can be the only way to address a sitting president’s crimes. Impeachment, of course, is not intended as punishment but rather as a defense of our constitutional order. Moreover, the notion that the president would be paralyzed by criminal proceedings has been undercut to a large degree with the Paula Jones ruling that a president can be sued while in office.

Most important, a key reason for the “don’t indict even if you don’t try the president in office” argument is that such action would cast a cloud over the president. But isn’t the reverse the case — a president credibly accused of criminal conduct should have the chance to clear his name and get on with his presidency? Trying a president — which requires proof beyond a reasonable doubt — allows either exoneration or conviction without putting a new president in the position of prosecuting his predecessor.

Professor Jed Shugerman recommends, among other reforms, that we “strengthen the special counsel through a statute, not just a DOJ regulation, and fixing the flaws in the old independent counsel statute.” He also advises:

The OLC should revise the memo to say that a president can be indicted, recognizing that there is no precedent for courts equitably tolling the statutes of limitations for crimes (no precedent for general “fairness” arguments for stopping the clock on criminal statutes of limitations). But the memo should acknowledge legitimate constitutional and practical problems with putting a sitting president on trial.

What I’d like to hear Harris and other candidates propose is a plan for avoiding such messes in the future. First, we need executive orders and/or legislation barring the White House staff from weighing in on specific prosecutorial decisions. Even in the case of the president, the contact(s) with regard to those decisions should be documented and subject to congressional review. The temptation to obstruct investigations should be curtailed. Second, the OLC memo should be withdrawn and a new analysis undertaken that accounts for recent experience, including the Paula Jones litigation and the Mueller report. A thoughtful process should be set up to provide for indictment in cases of criminal conduct (as opposed to conduct that might be impeachable but not illegal). Third, the Justice Department should set exacting requirements for prosecution of former presidents in cases in which trial is not undertaken before the president leaves office.

Constitutional scholar Laurence Tribe agrees that another look at the OLC memo is needed. “The 2000 OLC memo, which basically echoed the 1973 OLC memo and its reasoning, should certainly be revisited by whatever presidential administration succeeds the one now in power. To begin with, the OLC memo was analytically flawed from the start and rested on a theory fundamentally incompatible with the core constitutional premise that nobody, and certainly no president, is above the law.” He continues:

My own view is that, when a sitting president is found to have engaged in what appear to be serious crimes that would lead to any other citizen’s indictment and prosecution — as over 1,000 former federal prosecutors said the Mueller report showed to be the case with respect to Trump — including when those crimes are ones that an ordinary citizen couldn’t commit (like dangling presidential pardons in front of potential witnesses against him) because they relate to the president’s conduct of office and might be impeachable offenses as well as statutory criminal violations — that president should be subject not only to indictment under seal but to a publicly visible indictment and to a public prosecution, preferably by a court-appointed special prosecutor with substantial independence from the executive branch.

If nothing else, “criminally inclined presidents like the one now in office would necessarily think twice before doing what any halfway decent lawyer would advise them constitute federal felonies that could lead either to their prosecution and imprisonment.”

The real solution, of course, is to avoid these quagmires in the first place: Pick presidents wisely and to insist the House and Senate do their constitutional duty. We would not be in this position if the Senate could be expected to fairly render a verdict on impeachment/removal. That Senate Majority Leader Mitch McConnell (R-Ky.) has already predetermined the outcome — declaring case closed — has landed us in a legal, political and ethical quagmire. We need to rid the political system of intellectually and ethically corrupted Republicans, enforcing the lesson that the public expects lawmakers to put country and Constitution above partisanship.

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