The Ability To Indict A President Should (And Does) Exist [Opinion]

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As more evidence makes its way into the public sphere that presents a tale of President Donald Trump’s possible involvement in a scheme to coordinate with the Russian government during his campaign — or showcases the seedy affairs he tried to hide by not reporting them in FEC filings, or potentially demonstrates the actions of obstructing justice he committed after becoming president — discussion from observers and pundits has veered at times toward wondering aloud whether anything can be done to remove him from office.

Two options exist to do so under the Constitution, according to reporting from Reuters: impeachment, which requires the House of Representatives to vote to affirm, and two-thirds of the Senate to vote to indict; and the 25th Amendment, which requires the vice president — and most of the cabinet — to agree the president is unable to fulfill their duties. Neither option seems likely to happen, as the Senate is currently controlled by members of Trump’s own party, and his White House staff seem pretty keen on keeping him there, for the time being.

While the Russia investigation headed by special counsel Robert Mueller could discover unlawful actions warranting removal, neither Mueller nor anyone else from the Department of Justice can indict the president — at least, that’s what we’re led to believe. That idea is based upon a DOJ memo that was written in 2000, per reporting from the Daily Beast.

That memo basically stated that a sitting president should not be indicted by the DOJ, because doing so could hamper the work of the executive branch. But former Attorney General Eric Holder disagrees with the memo’s intent, and wrote on Twitter this past week that a sitting president absolutely can be indicted by law enforcement.

“Executive branch paralysis during the criminal process is not a compelling argument,” Holder wrote on Twitter on Monday. “[C]onsider 25th Amendment.”

What does Holder mean? Essentially, because that Amendment has a means for dealing with a president who is incapacitated, for whatever reason, the idea that the Department of Justice can’t act in a certain way that would render the president incapable of leading is moot, according to a blog post from Law & Crime that aimed to explain the former attorney general’s reasoning. The Constitution addresses that concern, and allows government to continue to function even if the president were embattled in fighting an indictment.

The idea that a president cannot be indicted was a concept that has always perplexed me. If the president committed a known crime, why shouldn’t the Justice Department act on it? To use an extreme example — one that Trump used himself on the campaign trail in 2016 — if a president shot a person on a crowded street, where plenty of witnesses and smartphone cameras filmed him doing so, why couldn’t the FBI arrest them for doing so?

The DOJ memo is just that — a memo. It’s an agency guideline that deserves to be amended, to reflect the fact that there are circumstances (like the extreme example above) that warrant the arrest of the president. If those extremes exist, then certainly less extreme circumstances — such as trying to influence the outcome of an election in an improper or illegal way — should also be considered conditions for indictment.