“If Trump Shoots Someone on 5th Ave., Does He Have Immunity? His Lawyer Says Yes.” (NYT, 10/23/19) The lawyer was asserting that a sitting president cannot be investigated for any criminal actions because he cannot be indicted. No one asked the obvious follow-up: “Could he shoot his political opponent?”
Talk about incentive. Killing opponents could improve the chances of re-election and, therefore, continued immunity. With victory comes not just immunity — the winner can proceed to appoint sympathetic judges and apply the full faith and credit of the country to ensuring re-election. Not everyone can offer bribes paid for by other people’s taxes, but since that’s a crime, the president again gets a pass. Immunotherapy.
I have to back up here. An attorney representing the president of the United States seriously proposed that a president could shoot somebody — no reason needed — and not be prosecuted. I know many people with whom I disagree on politics, but I don’t know anyone who would truly think this is right.
But does a president really just get a pass? As Robert Mueller repeatedly suggested, just because a president can’t be indicted does not mean he (or, someday, she) shouldn’t be impeached. And here we are.
Swapping impeachment for indictment, however, may not end the question of criminal immunity. Obstruction of Congress is a crime. The current president is refusing to cooperate with Congress, and ordering everyone in the executive branch to refuse as well. Traditionally, the courts mediate such things. If the courts accept this idea of criminal immunity, will they apply it to the crime of obstruction of Congress?
There is a beautiful — and terrible — symmetry in this immunity proposition. A president could only be criminally charged with obstruction if he doesn’t do it well enough. If he successfully obstructs investigations, including impeachment investigations, he gets to remain in office and, therefore, continue to enjoy immunity.
By successful obstruction, I mean successfully blocking investigators from having access to witnesses, documents, and materials needed to prove guilt. The current president is already asserting authority to order everyone in the executive branch to defy the House of Representatives. He is intimidating and vilifying witnesses even as they testify. The executive branch includes the state, treasury, interior, and justice departments, as well as the military, intelligence, and federal law enforcement agencies. Aside from the imbalance of real power (the House has a sergeant at arms, not an army), if any president were guilty of something, these agencies would most likely hold the evidence. Block access to the proof, hide the guilt.
There are all sorts of things dividing us now. We each look at our own screens. But it is time to notice that the “deep state” the president is dismantling is the state itself. Go ahead and dismiss me as the liberal I am. I don’t matter at all.
Just take a moment to really think about what makes us a nation. I think the United States is, above all, shared ideals. I have thought those included equality under the law. Which should also mean that no one is above the law. I have also understood that laws are only made legitimate by our consent, our permission.
The separation of powers, the Bill of Rights, voting, written laws, and so on are only ways to have and keep self-government. They help ensure government that we control instead of government that controls us. The so-called “unitary executive” diminishes our ability to exert control over our own fates.
So, setting aside who’s good or bad, who you like or not, if you believe America is great, what are the things that make it great? If you could remake our government from scratch, what would you want?
I would hope to create a government that would help us share our strengths while interfering as little as possible with each other. And my ideal government would get its authority from the mutual agreement of the people being governed. I am not seeing a place in my ideal government for a leader with authority to murder at will and without consequence.
David Gilbert Keith lives in Deerfield.