According to a dim-witted policy of the Justice Depart, the President of the United States cannot be indicted for criminal behavior while in office. This policy was first stated in 1973.The policy would put a sitting president above the law that applies to all other Americans, and that's a travesty in a democracy that says all citizens are equal under the law.
It's also a silly policy on its face. Let me give you an example. Suppose the president went into a fit of rage and murdered an aide or visitor in front of multiple witnesses. Are we to believe that president could not be arrested and charged?
Where do we draw the line on what crimes could be indicted and what could not? It makes no sense to draw that line anywhere. No one, including the president should be above the law in our constitutional democracy.
Senator Elizabeth Warren understands that, even if the Republican Attorney General does not. And she has a plan to fix it. Here, in her own words, is that plan:
Congress should make it clear that the President can be held accountable for violating the law, just like everyone else. Here’s my plan:
- Pass a law clarifying Congress’s intent that the Department of Justice can indict the President of the United States.
Congress should make it clear that it wants the President to be held accountable for violating the law, just like everyone else.
"); text-decoration: none;" target="_blank" href="https://www.law.cornell.edu/uscode/text/18" rel="nofollow noopener" class="markup--anchor markup--blockquote-anchor" data-href="https://www.law.cornell.edu/uscode/text/18">Title 18 of the United States Code, which contains most provisions of federal criminal law, applies to “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission[.]” Congress should clarify that it intends for this provision to apply to all persons — including the President of the United States.
If Congress does so, one of the strongest arguments against indictment disappears: that the Constitution gives Congress the sole authority to decide when to interfere with the President’s duties, and that a criminal indictment would forcibly take that power away from Congress. It’ll also remove any statutory ambiguity that remains.
- Amend obstruction of justice statutes to explicitly allow for indictment when the President abuses the powers of the office.
We must also clarify that the President can, in fact, commit the crime of obstruction when he abuses his constitutional authority and be charged for it. That’s what Donald Trump did when he fired Jim Comey and forced out Jeff Sessions to obstruct the Russia investigation. It’s what he did when he dangled pardons to his friends and former staffers to try to get them to lie for him.
Most people agree that these laws apply to the President, but some partisan extremists, like Attorney General Bill Barr, "); text-decoration: none;" target="_blank" href="https://www.cnn.com/2019/03/24/politics/barr-memo-mueller/index.html" rel="nofollow noopener" class="markup--anchor markup--blockquote-anchor" data-href="https://www.cnn.com/2019/03/24/politics/barr-memo-mueller/index.html">have argued that they don’t. We should amend "); text-decoration: none;" target="_blank" href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73" rel="nofollow noopener" class="markup--anchor markup--blockquote-anchor" data-href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73">these laws, codified in 18 U.S.C. §§ 1501–1521, to make it crystal clear that the President of the United States can be guilty of obstruction of justice.We need an Attorney General who does not believe the President is above the law. Attorney General Bill Barr has disgraced himself by acting like Trump’s personal defense attorney. He wrote a four-page “summary” to "); text-decoration: none;" target="_blank" href="https://www.npr.org/2019/04/30/718883130/mueller-complained-that-barr-summary-of-trump-russia-probe-lacked-context" rel="nofollow noopener" class="markup--anchor markup--p-anchor" data-href="https://www.npr.org/2019/04/30/718883130/mueller-complained-that-barr-summary-of-trump-russia-probe-lacked-context">mislead the public about the Mueller report. He gave a press conference to "); text-decoration: none;" target="_blank" href="https://www.vox.com/2019/4/18/18484708/william-barr-conference-mueller-report-trump-spin" rel="nofollow noopener" class="markup--anchor markup--p-anchor" data-href="https://www.vox.com/2019/4/18/18484708/william-barr-conference-mueller-report-trump-spin">repeat White House talking points about the Russia investigation. And he has repeatedly "); text-decoration: none;" target="_blank" href="https://www.vox.com/policy-and-politics/2019/4/18/18412111/house-democrats-subpoena-unredacted-mueller-report" rel="nofollow noopener" class="markup--anchor markup--p-anchor" data-href="https://www.vox.com/policy-and-politics/2019/4/18/18412111/house-democrats-subpoena-unredacted-mueller-report">refused to comply with congressional requests to release the unredacted Mueller report or appear before the House to defend deceiving the American people. That should come as no surprise to us. Bill Barr was hand-picked by Donald Trump to be his Attorney General after campaigning for the position. How did he get the job? By sending an unsolicited memo "); text-decoration: none;" target="_blank" href="https://www.lawfareblog.com/bill-barrs-very-strange-memo-obstruction-justice" rel="nofollow noopener" class="markup--anchor markup--p-anchor" data-href="https://www.lawfareblog.com/bill-barrs-very-strange-memo-obstruction-justice">arguing that the President of the United States could not obstruct justice. That’s the same false argument he repeated in his four-page letter in an attempt to spin Donald Trump’s criminal behavior. It’s ridiculous. The Attorney General must represent the people, not the President. So here’s what I’ll do to make sure this doesn’t happen again:
- Appoint an Attorney General who will protect the rule of law.
I believe that safeguarding the rule of law upholding our Constitution are foundational responsibilities for any President. That’s why when I’m elected, I will exercise my constitutional authority to appoint an Attorney General who shares my strong conviction that no one — not even a President — is above the law.
- Appoint an Assistant Attorney General in charge of the Office of Legal Counsel (OLC) who will reverse the OLC opinion arguing that the President cannot be indicted.
The Department of Justice’s Office of Legal Counsel is in charge of writing opinions that govern the conduct of the executive branch, including opinions about the Constitution. But Donald Trump has used the OLC as a "); text-decoration: none;" target="_blank" href="https://www.lawfareblog.com/travel-ban-family-separations-malevolence-incompetence-carelessness" rel="nofollow noopener" class="markup--anchor markup--blockquote-anchor" data-href="https://www.lawfareblog.com/travel-ban-family-separations-malevolence-incompetence-carelessness">rubber stampfor whatever he wants to do. I’ll put an end to that by appointing a head of the OLC who knows their job is to objectively advise the executive branch on what it can and cannot do under the Constitution. I pledge to nominate an OLC head who will reverse the Watergate-era rule that a President cannot be indicted for criminal behavior.No matter what he may think, Donald Trump is not a King. No President is. And our democracy only works if everyone can be held accountable. These changes will make sure that’s the case for generations to come.
