President shouldn’t be immune to indictment

In a nation of laws, no one should be above them. Not even the president. Especially not the president. But for the time being, he is.

That’s unacceptable. According to U.S. Justice Department doctrine, which Special Counsel Robert Mueller III was duty-bound to obey, a president cannot be indicted while in office. The pretext is that it would be too disruptive to the government to put a sitting president on trial.

But such carte blanche immunity is disruptive to something even more fundamental: our constitutional democracy.

Nowhere in the Constitution does it say a president is immune to prosecution.

Considering the facts in the light most favorable to President Trump, Mueller’s 448-page report portrays a candidate eager for a hostile government’s help in getting elected and a president who was so frantic to conceal that fact from the American people that he did as many as 10 things that could be construed as obstruction of justice.

The president’s culpability would be more pronounced had eight subordinates not willfully disregarded some of his orders.

Trump went at the cover-up harder than even Richard Nixon did after Watergate. A distinction is that Nixon knew an underlying crime — the burglary — had been committed by people close to him. But that’s not much of a difference.

Russia’s hacking of Democratic computers, a fact already well-known to the entire intelligence community, was a crime for which Mueller indicted 17 Russians. The question of whether Trump or his campaign conspired with them was made more difficult to answer by the president’s persistent efforts to call off and disparage the investigation.

And, as the Mueller report explicitly observed, there doesn’t have to be an underlying crime for criminal obstruction to occur. If the motive were merely to prevent embarrassment, or to keep investigators from learning whether there was an underlying crime, that’s enough.

Trump must have feared something when he bewailed the appointment of the special counsel as “the end of my presidency.”

Any other politician might be contemplating resignation because of the exposure of his willingness to let Russia help elect him and his indifference to the conflicts of interest created by his secret negotiations to build a hotel in Moscow. The Mueller report documented at least 140 contacts had by Trump, his family, and associates with Russian nationals and WikiLeaks.

Although Mueller cleared Trump of conspiracy in the hacking, by no means did he absolve him of conspiracy to obstruct justice.

Here’s what Mueller said about that: “If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.”

Even without the redacted portions — which the appropriate committees in Congress should persist in obtaining — the report serves as a bill of particulars for impeachment should the House of Representatives decide to do that. In effect, Mueller said so. The report’s vivid and abundant details mean the House Democratic leadership must rethink sloughing off that responsibility.

Before the report’s release — and perhaps misled by Attorney General William Barr’s disingenuous four-page summary — the Democratic leaders were apprehensive of a possible backlash from Trump’s die-hard supporters and mindful of the difficulty in cracking his border wall of enablers in the Senate. Removal would require the votes of all Democrats and 20 Republicans. It’s a much different place, not for the better, than when Barry Goldwater told Nixon to his face that it was time to go.

Impeachment is the fail-safe the Founders provided for a rogue presidency. What to do when the fail-safe fails?

The concept of a sitting president legally immune to indictment — and politically immune to impeachment — leaves only the possibility of charging him after he leaves office, as Nixon likely would have been without Gerald Ford’s pardon.

But it also leaves the statutes of limitation running to prevent prosecution that, in the case of most federal crimes, occurred more than five years before charges are filed.

There are exceptions, as for terrorism, certain financial crimes and newly discovered DNA evidence, but none that would seem to apply to obstruction of justice.

That needs to be changed, as it could be by a simple act of Congress.

As is, the statute of limitations is an incentive to a rogue president to remain in office as long as possible.

By amendment, the Constitution already provides for the vice president to act temporarily in the president’s place if he certifies that he is “unable to discharge the powers and duties of his office.” Alternatively, the vice president and a majority of the Cabinet can make that finding. The 25th Amendment also provides for the president to resume power when the “inability” no longer exists.

That’s a convenient and obvious model for a congressional declaration, or for another constitutional amendment if need be, that the president is not immune to indictment and that in the event of one, the vice president will act in his place.

That needs to be done for the future, if not for now.

One president above the law is one too many.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Sergio Bustos and Editor-in-Chief Julie Anderson.