//  1/17/19  //  In-Depth Analysis

Take Care is pleased to present a symposium on Andrew Cohen's important new book, Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law (Oxford University Press).

Andrew Coan’s thought-provoking new book – part history, part law, part contemporary politics – could scarcely be timelier.  While organized around the institution of the special prosecutor, the history and legal limits of that office, the book unmistakably asks us to think about the broader question of presidential accountability.  What should a constitutional democracy do about a President who violates the law?

Coan’s answer, I take it, leans against special prosecutors pursuing a criminal indictment.  The Constitution may or may not permit it (Coan suspects not), history has never embraced it (no sitting President has ever been indicted), and the government (at least the Executive Branch) would be crippled by it.  A special prosecutor’s report, or some other pre-indictment prosecutorial conclusion, has the virtue of focusing public thinking so that political pressure (up to and including impeachment and removal) can work as it should.  “[T]he last, best hope for the rule of law,” Coan writes, “is not judges or lawyers but democratic politics.” (130)

No one should imagine the answer to the accountability question is easy, and Coan does a great service in making apparent that it is not.  But I confess that the lessons I took from the book had the effect of pushing me to consider presidential indictment as an option more seriously than I once had.  Part of my reaction is no doubt because, for reasons well canvassed by others, I am less persuaded than Coan of the existence of a constitutional prohibition. I also have the luxury of contemplating the question in the abstract – what should happen – as opposed to what the current special prosecutor may feel practically constrained to do. (Among other things, current Justice Department regulations require special counsels to comply with existing policies of the Department, policies that include two opinions of the Office of Legal Counsel identifying constitutional obstacles to presidential indictment.)   Yet Coan’s comparative accounting of special prosecutors past brings into stark relief how very different our present circumstances are.  The difference is not only in the nature of the conduct alleged, but also in the likelihood that ordinary democratic politics in the United States are at this moment in history functional enough to respond. 

Start with the underlying conduct the current special prosecutor now appears to face. As Coan recalls, special prosecutors have previously confronted the misdeeds of Presidents Grant and Harding, who were entangled (in more and less certain ways) in tax and bribery schemes, and Presidents Nixon and Clinton, accused of obstructing justice in underlying actions involving singular instances of (criminal) burglary and (civil) harassment, respectively.  While we must wait to see what the conclusion of Robert Mueller’s investigation brings, the current president’s entanglements involve not only conduct analogous or identical to those of past presidents – but much, much more.  Even ignoring for the moment the many civil actions charging the President with various public and private acts of corruption, it is now clear at a minimum that the President conspired to violate federal campaign finance laws through payments to former romantic partners in the lead up to and for the purpose of influencing the outcome of the presidential election. The President is also credibly implicated in obstructing the investigation into his own conduct, not only for firing the Director of the FBI, but also for aiming through public statements and otherwise to influence investigation witnesses.  Above all, reports are accumulating that make it seem increasingly plausible that the President (or at the very least his campaign) conspired with the government of a hostile foreign power to secure his election to the presidency.  The volume of this President’s actually or plausibly criminal actions far exceeds anything prior prosecutors faced. The seriousness of these actions if true – measured not only in structural harms to free elections and judicial processes, but in actual and ongoing harms to U.S. national security – likewise dwarfs those faced by special prosecutors past.

Second, quite different from the conditions that prevailed in the Nixon era – when, as Coan recounts, “public norms for official conduct” were “robust,” and an accumulation of evidence and bipartisan political pressure resulted in the President’s resignation before any formal process for prosecution or removal proved necessary – multiple indicators suggest our democracy may be far less capable than it was in 1974 of addressing presidential wrongdoing through popular politics.  Today, the conditions that make the maintenance of norms possible – like a widely shared baseline of not only political but factual reality – are staggeringly weak.  This is evident not just in the well-documented existence of intense polarization in politics, but in the manifestation of that polarization across multiple facets of contemporary life – where we live, who we know, and perhaps above all, where we get our news.  Indeed, it is not only the President who has “smashed through one well-established norm after another,” (210) public officeholders of both parties (albeit to notably different degrees) have embraced the norm-pressuring tactics of “constitutional hardball” as a modus vivendi, from the filibuster of judicial nominees in the Senate to the shutdown politics we currently endure.  Ours are conditions in which it seems far less likely that a special prosecutor will be able simply to state the facts – in a report, presentment, or the like – and imagine that public consensus about their import will do the rest of the work.  

At the same time, especially in the midst of a government that is as we speak literally non-operational, the classic functional argument that an indictment would compromise the effectiveness of the Executive Branch seems, at best, ironic.  All apart from the rest of the government, the President himself, as well as his company, charity and campaign, are already engaged in innumerable different lawsuits about conduct in, around and after the campaign – even before one counts the investigation of the special prosecutor.  The President’s schedule already features work days beginning at 11am, hours of television watching and tweeting (including more than four dozen tweets about the Mueller investigation in 2018 alone), and has included time amounting to 25% of his total presidency at one of his golf courses.  It is one thing to posit that a criminal indictment might be a distraction for the ordinary presidency.  It is another thing for a court – or the American people – to pretend this presidency is anything like ordinary. 

As for Coan’s concern that indictment – more than impeachment or other effects of popular political pressure – empowers an unelected prosecutor and random grand jury of a handful Americans, it is indeed the case that prosecutors and random, ordinary citizens in our criminal justice system wield extraordinary power.   But at least those actually indicted have the opportunity to challenge the evidence against them in court, to put the prosecutor to the test of fact, to prove their case.  The subject of a prosecutorial report, like the named unindicted co-conspirator, no matter how high profile, has no such formal opportunity – and no such formal obligation.

And there perhaps is the most compelling argument of all, for as profoundly important as it would be to reinforce or restore the norm that, for example, the United States will not tolerate conspiracy with a foreign government to influence democratic elections (if it turns out such a norm was breached) – such norm reinforcement can only come if there is some common understanding that this is in fact what happened.  Outside an actual courtroom, there are no shared rules of proof.  As it stands, with public opinion on the Mueller investigation divided, it is not at all certain that acceptance of the facts he alleges is the reaction a Mueller report will produce.  And while non-prosecution does not necessitate normalization of the conduct it alleges, the outcome in which there is no official response to a Mueller report – for a gridlocked Congress and a re-elected president remain a live possibility – seems troublingly likely to increase the risk. 

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