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Yes, Trump can be indicted while in office, but…

Earl Ofari Hutchinson

It’s said so often that it’s become almost a political urban legend that Trump could shoot someone in broad daylight with gobs of witnesses in the middle of New York’s Fifth Avenue and get away with it. During sparring in a New York court over Trump’s tax returns, his attorneys seemingly made that political fiction official. They brazenly said that he was immune from prosecution while in office.

But long before Trump’s attorneys ever uttered this silliness, Trump made the ‘no prosecution’ claim credible, not by words, but by his actions. His litany of dirty and patently illegal payments, use of the White House to make tons of dubious for-profit business deals, multiple instances of obstructing justice cited by Special Counsel Robert Mueller, and his attempt to bribe foreign leaders to discredit Joe Biden are by now well known. Toss in Trump’s possible tax evasion and that would be enough to put Joe Citizen in jail for decades.

There’s absolutely nothing in the Constitution, as has been repeatedly noted, that bars a criminal prosecution of a sitting president. The political absurdity that Trump can’t be indicted rests solely on an opinion rendered by the Justice Department’s Office of Legal Counsel at the height of the furor over the Watergate break-in and then-President Richard Nixon’s reign of lawbreaking in 1973. The Office said simply that indicting a sitting president “would undermine his capacity to function.”

The issue came up again during the dustup over what could be done about then-President Clinton’s possible lawbreaking in the Lewinsky affair in 2000. Again, the office said no dice, a sitting president can’t be charged.

The one slight chink in the ‘no indictment’ line came, not surprisingly, from avowed Clinton antagonist Independent Counsel Kenneth Starr. He prepared a memo that Clinton could be indicted on issues involving the Lewinsky scandal. Starr’s motive was politically crass and clearly designed to open a legal way to take down Clinton. It didn’t fly and was quickly shelved. However, it did prove that anyone in authority can offer an opinion on the yea or nay of prosecuting a president, and without any clear Constitutional precept to govern what can be done prosecution-wise to a sitting president, the issue remains a giant question mark.

In truth, the greatest shield Trump has beyond the constitutional quibble over indictment is precedent. No sitting president has ever been indicted, simply because it would cause monumental political and legal havoc and paralyze the chief executive, and by extension the government. The only recourse then is impeachment. On that, the Constitution is clear. However, that presents almost the same colossal problem that trying to indict a president brings. It’s top-heavy with political infighting, pushback, stonewalling and ultimately inaction. This is why impeachment of a president has only been tried twice in the nation’s history — Clinton and Andrew Johnson. Neither was convicted in the Senate.

There’s absolutely no possibility that even if the House impeaches Trump, things would be different. Senate Majority Leader Mitch McConnell has virtually bragged that he’s a one-man firewall in the Senate who would never permit things to go that far, namely conviction and removal, if Trump was impeached. The possible political gain to Trump of a prolonged impeachment battle is the reason that House Speaker Nancy Pelosi, year after year, beat back calls and efforts by a pack of Democrats to nail Trump with impeachment. Pelosi did not want to have Trump tweeting all over the place screaming he’s a martyr on the political cross of Democrats. Or, worse still, screaming that he is facing a howling lynch mob in the Democrats.

What better way to rev up his screeching base and imperil some swing district Democratic representatives than a Democrat-driven impeachment fight? Even Trump’s blatant lawbreaking with his Ukraine and probably China extortion over Biden hasn’t been enough to move Pelosi to get moving with the impeachment inquiry promised.

So, there is no constitutional reason why Trump can’t be indicted on any of several take-your-pick-of violations. The reason he won’t be, to be clear, is not the law or the Constitution, and certainly not his attorney’s boast about Trump being able to bump off people and skip away scot-free. It’s simply politics and all the turmoil that brings with it, nothing more.

Earl Ofari Hutchinson is an author and political analyst.

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