Most of the discussion around impeachment and the Mueller investigation has involved either the electoral implications or the simple possibility that an openly criminal and compromised president might continue to in office after surviving trial in the Senate for purely partisan reasons.
But until recently, less thought has been given to consequences of a president who must remain in office in order to maintain his personal freedom. It’s a situation we more commonly associate with foreign dictators, where the interest of justice must be balanced against the need to gently nudge them out of power when their ever incentive is to maintain the protection of their own office. Now we have to deal with the possibility of a similar situation in the United States.
The multiple investigations into Trump wrongdoing have raised the likely possibility that regardless of what happens as a result of the Mueller inquiry into Russian collusion, the president will face myriad legal consequences arising from other inquiries into financial crimes, campaign finance fraud, obstruction of justice and other felonies under the auspices of other law enforcement bodies–including and especially the Southern District of New York.
Combined with the famous Justice Department memo outlining the a standing policy that it will not indict a sitting president, and the result is an intolerable situation expressed most recently by legal analyst Elie Mystal: the president may need to win re-election just to keep himself out of jail.
This is clearly unsustainable for a host of reasons. First, it means the president is functionally above the law as long as they remain president–a fundamentally unAmerican principle. Second, it creates the most perverse incentives for the president to commit as many crimes as necessary to hold office since no consequences will befall him as long as he holds power. It’s almost a guarantee of dictatorship, coup or similar disaster. Third, it discourages the peaceful transfer of power: the specatacle of a sitting president who lost re-election or came to the end of his term waiting down the final hours of his office only to to be placed into handcuffs afterwards is comically absurd and would tear apart a divided nation.
If the president committed crimes worthy of indictment, the president should face the consequences for those crimes whether they remain in elected office or not. If there is no political will to impeach, the Vice President should assume the duties of the office so long as the president–who can presumably secure bail–remains on trial.
Certainly, the prospect of a sitting president making bail and continuing to serve in office while on trial would be extraordinary and problematic in its own way. That’s part of why a political party that refuses to impeach a criminal president is so dangerous. But it’s better than the alternative, which cannot help but lead to the destruction of our democracy.
Sitting presidents must be indictable while in office, and there’s no time like for the present for the Justice Department to change its current misguided policy. Hoping that this situation will resolve itself cleanly and never arise again is not a responsible choice.