How Joe Biden can prevent another farce like the Senate’s Trump impeachment ‘trial’

By Tom Coleman
Special to The Kansas City Star

During the past four years, as President Donald Trump has demolished multiple guardrails of our democracy, many Americans felt confident that his wrongdoing — often believed to be criminal — would not go unpunished. We held out hope in special counsel Robert Mueller’s investigation. Alas, after his report was issued, it became obvious our confidence was misplaced.

In fact, the fate of Mueller’s investigation had been sealed long before he was appointed. The beneficiary of this miscarriage of justice, of course, was Trump. His get-out-of-jail-free card was issued not because of any constitutional provision, statute, promulgated rule or court decision, but rather due to an internal Department of Justice memo originally written almost a half-century ago. The department’s Office of Legal Counsel memorandum, written in 1973 and confirmed in 2000, prohibits a sitting president from being criminally charged.

President-elect Joe Biden’s Justice Department should make it a top priority to withdraw this memo, because presidents should be held accountable for their actions — especially while occupying the nation’s most powerful office. It would also send a message that in the Biden presidency, no one is above the law.

While Mueller was roundly criticized for his failure to bring charges against Trump for obstruction of justice and his acceptance of Russian government interference in the 2016 election, Mueller had no choice because he was bound by DOJ policy based on its memo.

Mueller’s final report hints that but for that opinion, there was sufficient evidence to bring criminal charges against the president. At the time, more than 1,000 former U.S. attorneys expressed their opinion in a letter stating they also believed there was sufficient evidence to charge and convict Trump for obstruction of justice if he were not president.

The limitations placed on Mueller’s investigation by the Department of Justice were insurmountable.

After listing and reviewing arguments for and against allowing a sitting president to be criminally charged while in office, the amended October 2000 version of the memorandum that is currently operational sums up its guidance clearly:

“A sitting president is immune from indictment as well as from further criminal process. Where the president is concerned, only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment.”

The traditional avenue of removing a president through impeachment — at least for now — is not a viable option. The Republican-controlled Senate confirmed this earlier this year when it made a mockery of its constitutional oversight powers by failing to call even a single witness to testify at its so-called impeachment trial of Trump. Our politics is so polarized that the Senate, once considered the world’s greatest deliberative body, opted instead for a sham proceeding.

This leaves the only current remedy available to rein in a president’s criminal behavior to be for the Justice Department to treat the president as no different from any other American. Adopting this policy would assure our democracy is built on the rule of law and not of individual men and women.

Some have wrongly concluded that special counsel Mueller “punted” on the subject of criminal obstruction. That is not the case. A more accurate football analogy would be that Mueller was forced to throw a lateral pass to Congress — a coequal branch of government — hoping lawmakers would catch the ball and run with it. The Senate, unfortunately, fumbled the ball.

In the future, if the memo is withdrawn, an independent Department of Justice or a designated special counsel would not be forced to give up possession of the football, but instead would be allowed to carry it into the end zone, alone. And under the Constitution, Congress could still call its Hail Mary impeachment play.

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Tom Coleman is a former Republican U.S. representative from Missouri. He has served as an adjunct professor at New York University’s Robert F. Wagner Graduate School of Public Service and at American University. He is an adviser to Protect Democracy.

12.06.20
OPINION: How Joe Biden can prevent another farce like the Senate’s Trump impeachment ‘trial’, The Kansas City Star

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