Why Donald Trump Should Not Be Indicted While in Office

According to open source reporting and social media, at this very moment, Russia is in the midst of a massive military buildup on their border with Ukraine.

Hundreds of tanks, likely thousands of troops, and God only knows what kind of firepower are massing. And they’re being given a pretext thanks to Russia’s now-familiar preliminary bombardment of fake news, allegations, and disinfo.

Will Vladimir Putin invade the former Soviet republic that he’s long wanted to bring back into the fold? Maybe, given their past aggression in the Crimea.

And maybe not, given that it would be an act of war against a nation that has performed military exercises with NATO, and would likely fall under its umbrella of protection.

But if the balloon does go up and Putin plunges Europe into war, it will likely come at a time when Ukraine’s potential allies are at their weakest and most chaotic.

France? Roiled by riots and the possible collapse of the Macron government. The UK? Failing miserably to finesse the details of Brexit, and trying desperately to prevent Theresa May’s government from collapsing. And the US? Well, have you seen who the president is?

But if there would be one perfect moment for Putin’s tanks to jump off their starting lines, it would be the moment that a roiling constitutional question is answered in the affirmative and Donald Trump is indicted for the campaign finance violations that former lawyer Michael Cohen copped to last week.

There are dozens and dozens of pieces that have been written in the past few years arguing over whether the president can or can’t be charged with a crime while in office.

Some say yes, nobody is above the law. Some say no, the president has total immunity and that the remedy for a lawless POTUS is impeachment. Some say we have no idea, and won’t until someone tries it.

But none of these very well-written and heavily researched pieces seems interested in asking whether or not it’s a good idea.

And I, a humble writer who is not an expert on constitutional law or political history, say it is not a good idea. In fact, it could be the biggest mistake this country ever makes.

Not because he’s innocent, or because of 2020, or anything like that.

It’s because he’s the National Command Authority, and if Putin invaded Ukraine – or Kim Jong Un invaded South Korea, or India invaded Pakistan, or god forbid the world stood on the verge of a nuclear exchange – only Donald Trump could make the final decision on what the US does in response.

The National Command Authority is also the only person in the United States with the authority to order a nuclear release. The vice president can’t, nor can the Secretary of Defense, Chair of the Joint Chiefs, or any general or admiral. Only Trump.

Should Trump be indicted, taken into custody, and become unavailable for a certain amount of time, and a military crisis break out (or the need to use nuclear weapons arise) how does this work? Does a president under indictment continue to carry the mantle of command? Who decides whether he does or doesn’t? A judge? The Supreme Court? The vice president?

The constitution doesn’t say they do, nor does any known US law or executive order. Maybe there’s a Presidential Emergency Action Declaration somewhere that gives us guidance on what happens if a president is missing, but is there one for where we think Kim might have popped off an ICBM at Guam and Trump can’t be reached by the Joint Chiefs because he’s on a prison bus?

Or what if a judge orders the president to jail before his preliminary hearing due to being a flight risk?  Does his military aide sit in the cell with him, holding on to the nuclear football? How does a president run a military intervention in a courtroom? In prison? Can they? Are his orders legal? Does the military have an obligation to carry them out?

Even taking nukes out of it, what happens if the president is indicted and is out on bail? Is he allowed to leave the country? Donald Trump is a wealthy man with properties everywhere, who could easily simply leave the country and not come back.

Putting aside that unlikely possibility, the indictment of the president would hobble the executive branch, certainly in theory, and maybe in practice.

During the run-up to President Nixon’s (uncompleted) impeachment, one of the legal memos drafted in support of the office being above indictment laid out that “the President is the only officer whose temporary disability while in office [would] incapacitate an entire branch of government.”

That memo also makes it clear that

“A necessity to defend a criminal trial and to attend court in connection with it, however, would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.

During the past century the duties of the Presidency […] have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution.

This might constitute an incapacitation so that under the provision of the Twenty-Fifth Amendment, Sections 3 or 4, the Vice President becomes Acting President.

However, under our constitutional plan as outlined in Article 1, sec. 3, only the Congress by the formal process of impeachment, and not a court by any process should be accorded the power to interrupt the Presidency or oust an incumbent.”

Essentially, the president has duties that only the president can carry out, and while under indictment, they don’t have the ability or authority to carry them out.

And furthermore, there’s no legal way to take those duties away from them. The vice president can’t simply “step in” and become National Command Authority. To do so would be a coup, and could be prosecuted as such.

And while the 25th Amendment could be invoked by Mike Pence and the Trump cabinet to temporarily remove the president, Pence could also declare he believes the indictment to be illegitimate and refuse to invoke it. Or Trump’s cabinet, cronies one and all, could refuse to go along with it.

Even if they do, Trump could easily take the matter to court and say that he’s actually not incapacitated mentally or physically – and he’d have a decent case to make, at least for the times he’s not in prison.

And what about if he is? What if he’s found guilty? The moment a successor takes office, he’s hauled off to jail?

The only real remedy for an indicted president to be removed as National Command Authority is to impeach and remove them from office, immediately.

But what if Republicans in the Senate don’t go along with that sensible idea? How does a president under indictment AND impeachment even have one second of their day to be president?

There is no possible way that the process of an indictment can co-exist with the president’s role as National Command Authority, and as commander-in-chief of the military. It can with impeachment, as happened to Bill Clinton.

But not indictment. That’s not a moment of weakness we should be revealing to the world – not a world where Vladimir Putin stands ready to pounce, and a president under indictment might not have the ability or authority to respond.

Donald Trump is almost certainly guilty as all hell. And he belongs in prison if he is.

Just not while he’s president.

One thought on “Why Donald Trump Should Not Be Indicted While in Office

  1. There is also the possibility of passing the role to Pence temporarily via an EO (iirc), Presidents usually do this prior to having surgery under general anaesthesia, and other occasions when they know they will uncontactable. I wouldn’t expect the orange narcissist to go there however. The 25th or impeachment routes don’t look good either with the current stance of the GOP. Looks like the US has quite the constitutional crisis on the cards.

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