99% Invisible - 99% Invisible presents What Trump Can Teach Us About Con Law

Episode Date: September 25, 2019

Donald Trump took office 977 days ago, and it has been exhausting. Independent of where you are politically, I think we can all agree that the news cycle coming out of Washington DC has been very intense for anyone who has been paying attention at all. One of the reasons for the fervor is Trump’s role as a very norm breaking president. If you like him, that’s why you like him, if you hate him, that’s why you hate him. But my reaction to all this, was that I realized I didn’t really know what all the norms and rules are, so I wanted to create for myself a Constitutional Law class and the syllabus would be determined by Trump’s tweets. This is where my friend, neighbor and brains behind this operation, Elizabeth Joh, comes in. She is a professor at the UC  Davis school of law and she teaches Con Law. And since June of 2017, she has been kind enough to hang out with me and teach me lessons about the US Constitution, that I then record and release as the podcast What Trump Can Teach us About Con Law. We call it Trump Con Law for short. After a long hiatus, we’re back with monthly episodes, so I wanted to reintroduce it to the 99pi audience because you may not know about it and because people often comment that the nature of the calm historically grounded, educational discussion is a soothing salve amidst the chaotic and unnerving political news of the day. We’re presenting two classic episodes on Impeachment and Prosecuting a President. Subscribe to What Trump Can Teach Us About Con Law on Apple Podcasts and RadioPublic

This is 99% invisible, but I am Roman Mars. As I'm recording this, Donald Trump took office 975 days ago, and it has been exhausting. Independent of where you are politically, I think we can all agree that the new cycle coming out of Washington DC has been very intense for anyone who has been paying attention at all. One of the reasons for the fervor is Trump's role as a very norm-breaking president. If you like him, this is one of the reasons why you like him. If you hate him, this is one of the reasons why you hate him.

But my reaction to all this was that I realized I didn't really know what all the norms and rules actually were. So I wanted to create for myself a constitutional law class, and the syllabus would be determined by Trump's tweets. This is where my friend, neighbor, and the brains behind this operation Elizabeth Joe comes in. She's a professor at the UC Davis School of Law and she teaches Con Law 101. And since June of 2017, she's been kind enough to hang out with me and teach me lessons about the US Constitution that I then record and release as the podcast, what

Trump can teach us about Con Law. We call it Trump Con Law, for short. It's had what you call a sporadic release schedule, but it's crazy popular for something that I basically do as my hobby podcast to trick Elizabeth into coming over and educating me. And after a long hiatus, we're back with monthly episodes. So I wanted to reintroduce it to the 99PI audience because you may not know about it and because people often comment that the podcast's calm, historically grounded educational discussion is a soothing salve amidst the chaotic and unnerving political news of the day.

The creation of the show was very much a reaction to the Trump presidency, but it is not reactionary. I'm presenting two classic episodes of what Trump can teach us about Con Law here today, and if you're into it, I encourage you to hop over to the Trump Con Law feed and download the 30 or so other episodes, including a brand new one about obstruction of justice that we released last week. Even though we reference the news and current events and the latest Trump tweets, we tend to just use them as a jumping off point to talk about constitutional history. So the shows still work whenever you listen to them. First up, here's episode number 10 of Trump Con Law on impeachment, originally released on October 9th of 2017,

which was a time when the mother investigation was still ongoing. Check it out. When it comes to the topic of impeachment, most people know that Bill Clinton was impeached in 1998, and that Richard Nixon avoided impeachment by resigning in 1974. And you might remember from history class that Andrew Johnson was impeached, but you can't remember why, at least I can't remember why. But you've probably never heard of West Humphries, have you?

No. Okay. In 1853, President Franklin Pierce appointed West Humphries to be a federal district court judge in Tennessee. That's a trial court judge. Humphries appointment was unsurprising. He was a successful lawyer and a state legislator in his home state. He probably would have faded into total obscurity, except for three

things. First, in 1861, Tennessee seceded from the Union, and Humphreys was a big supporter of that. Second, President Jefferson Davis nominated Humphreys to be a judge for the Confederate States of America and the Confederate Congress approved the appointment. Third and most important, Humphreys never quit his old job as a federal judge. He just took the new job and didn't quit the old one. That set him apart from the other 13 federal judges who also joined the Confederacy. For a federal judge who has lifelong tenure, firing is not an option. Impeachment was the only way to get rid of him. So it's no surprise that in 1862, the House of Representatives of the Union, of course,

issued seven articles of impeachment against Humphries. That included one charge that he helped to, quote, organize armed rebellion against the United States and levy war against them, which is undeniably true. They were our enemies. They were enemies of America. Please remember this. And while Humphreys wasn't required to show up in Washington to defend himself, Congress

was determined to find him. The Senate's sergeant arms was dispatched to Tennessee to look for him but failed. So the Senate ordered notice of Humphreys impeachment proceedings to be published in the Tennessee and Washington newspapers. The Senate ultimately convicted Humphreys on June 26, 1862, and the shortest impeachment trial in American history. It lasted just a couple of hours. Afterwards, Humphreys continued to serve as a Confederate judge.

So you might think, why in peach Humphreys, the South had seceded, and the Union had some really important things to do, like when this of a war? Part of the answer is that Humphreys' failure to quit as a federal judge was a threat to our system. How could he simultaneously serve the Union and the Confederacy, not quitting his federal judgeship meant that he could issue legal orders while being openly disloyal to the nation. Impeachment is a remedy for constitutional democracy that's built into our constitution itself,

an important legal process, even in the midst of a national crisis. Congress had to get rid of them, and this was the way to do it. And it's the possibility of impeachment, however remote, that is emerging again as a possibility for this unusual and norm breaking presidency of Donald Trump. Hey everybody, he's still here, so we're back. This is what Trump can teach us about Conlon. An ongoing series of indefinite length where we take the actions and swaddling speculations about Trump and channel that noise into learning our constitution like we never have before.

Our music is courtesy of Doom Tree Records, our professor is Elizabeth Jo and I'm your fellow student and host, Roman Mars. It's the one you've been waiting for, the big eye, impeachment. So what exactly is impeachment and how does it work? You can start with the Constitution itself. Article 1, that's the part addressed to Congress, says that the House of Representatives shall have the sole power of impeachment. It also says that the Senate shall have the sole power to try all impeachments. So what this means is that when we talk about impeachment, it's really a two-step process divided between the House and the Senate. So you can think of impeachment as the phase when

someone is charged with wrongdoing, that's up to the House. If charges are brought, and these are called articles of impeachment, then it's the Senate's job to conduct a trial of the person subjected to impeachment. In the broad sense, we tend to use the word impeachment as meaning being removed from office, but technically, as was the case with Bill Clinton and Andrew Johnson, they were impeached, they were charged with wrongdoing, but they were not convicted and they both stayed on as president. But impeachment is not just for presidents. According to Article 2, that's the part that's usually addressed to the executive branch,

the president, the vice president, and all civil officers of the United States can be removed from office by impeachment. The Constitution has a couple of other specifications too, but it's silent on a lot of details. So when it comes to the law of impeachment, when people talk about what that means, it's sort of a mix of what the Constitution says, plus some rules set forth by the House and Senate, some historical experience, and well, a bunch of unknowns. And part of the reason we don't have answers to a lot of questions about impeachment is because we haven't used impeachment all that often. The House of Representatives has only impeached,

that means charged, 19 people, ever. There have only been 16 trials by the Senate ever. And only eight people have been actually convicted by the Senate and removed from office. All of those were federal judges, including West Humphries. So how is impeachment supposed to work? Well, the House has the power to issue articles of impeachment, and that can start in a number of different ways, but at some point the House Judiciary Committee, or sometimes another House committee, will look into the possibility of impeachment. They can decide to conduct an investigation and vote on whether to the possibility of impeachment. They can decide to conduct an investigation and vote on whether to issue articles of impeachment. That leads to the full house voting on it or not.

But it's tricky for the house to know if someone is impeachable. The Constitution says that impeachment can be based on treason, bribery, or other high crimes and misdemeanors. It's that last part of the phrase, high crimes and misdemeanors that can be misleading. It sometimes seems as though impeachment means that if you broke the law, then you should be impeached, but that's not how the phrase has been understood historically. It's pretty clear that high crimes and misdemeanors

doesn't mean that a person can only be impeached for committing a crime. Remember, impeachment exists to protect our constitutional democracy. So even behavior that doesn't break the law but appears to Congress as something that's a threat to our system can count as impeachable behavior. And so if breaking the law isn't necessary, it's also true that it's not sufficient either. So just because, for example, a president breaks the law, that doesn't mean he's automatically a subject to impeachment. Ultimately, it's up to the House to decide what they think counts as a

high crime or misdemeanor, and they only need a simple majority to decide to impeach. Once the House decides to issue articles of impeachment, they inform the Senate. That's when the Senate formally tells the person that he or she's being impeached. That person can appear or not appear. It's up to them. The senate is responsible for conducting the trial. And remember the Constitution's specific about this. There are opening arguments, presentation of evidence, witnesses, closing statements. It all looks very trial-like.

The senate can then convict that person with the two-thirds vote. The Constitution's specific about this too. If the Senate convicts, the person's removed from federal office, that's it. There's no right to any appeal. But here's the funny thing about impeachment. Well, it looks like a criminal trial. It's really not a criminal trial at all in lots of ways. So think about some of the things that you associate with a criminal trial. A defendant is formally charged with a crime. So in the ordinary world, you can only be charged for breaking a law that is defined ahead of time, tells you what the prohibited behavior is.

So in the real world, you can't be tried for generally bad stuff we think you did, but we'll decide on it right before the trial. But that's really what impeachment is. There's no clearly defined crime ahead of time. It's really up to the House of Representatives to decide. And if an ordinary criminal defendant is convicted of a crime, he gets the right to appeal. impeachment has no appeal. And in fact, the courts and the Supreme Court in particular generally doesn't get involved

at all. The only real exception to this is when the president is subject to impeachment. When that happens, the chief justice of the Supreme Court presides over the Senate trial. In all other cases, the vice president presides over trial. Of course, there's the funny problem of what happens when the vice president is impeached, but we don't really have any answer to that either.

And of course, there's the effect of impeachment. That's not like a criminal trial either. The worst thing that happens to you is that you're gone from office. It's not a prison sentence. In fact, the Senate actually has to vote separately if they want to disqualify you from ever-holding office again. And they don't even have to do that if they don't want to. Take the case of LC Hastings. In 1981, a federal grand jury indicted Hastings who was a federal district court judge at the time, and charges related to bribery. He was acquitted, so he stole a federal judge.

There was some suspicion, though, that he lied about the investigation and falsified evidence. So a special committee in the judiciary concluded that Hastings had probably broken the law anyway and recommended to the House of Representatives that he should be impeached. The House obliged, Hastings was impeached, and he was convicted by the Senate in 1989. Couldn't be a federal judge anymore. But, the Senate chose not to vote to bar him from federal office. So what does he do? Four years later, Hastings was elected to the House to represent Florida, Florida's 23rd

District. And as a member of that body, representative, all see Hastings, the impeached judge, would later vote against impeaching President Bill Clinton in December of 1998. So let's turn to Trump. So we want to be clear, at this point, there's nothing to suggest that impeachment proceedings are going to begin against President Trump. And remember, Congress has never successfully impeached and removed a president. But there are so many weird, unusual, unprecedented things that have happened since Trump became

president that the idea of impeachment has been brought up a number of times. A number of times, like from day one, basically. From day one, yeah, exactly. So, at least since election day. Okay. So, we want to be clear, these are merely theoretical speculation. Twitter speculating type stuff, yeah. There are no actual secret proceedings about impeachment.

So, there are a lot of questions and possibilities. So one possibility starts with special counsel Robert Mueller. Remember that Mueller has been charged with investigating if there were any connections between the Trump campaign and Russian interference in the 2016 election. Mueller himself was appointed by Deputy Attorney General Rodstein, and not by Attorney General Sessions. That's because Sessions recused himself from the investigation. That, in turn, reportedly infuriated President Trump

and led him to call Sessions beleaguered in a tweet. And Trump has already lashed out at Mueller, tweeting in June that the investigation was, quote, the single greatest witch hunt in American political history. So, Mueller, the single greatest witch hunt in American political history. So, Mueller, let's say, might find evidence of some very serious wrongdoing on the part of President Trump.

Again, we don't know, but let's entertain that thought. This could be turned over to the House just as independent counsel Kenneth Star did in his investigation of Bill Clinton. Now, the House would have to decide whether any information they had would be enough to merit at least one article that's a charge of impeachment. And even if they did that and that's a pretty big if, there's also the matter of a Senate trial. Would two-thirds of the Senate, that's the necessary number needed, vote to convict Trump,

at this point it's really hard to imagine. Another thing, keep in mind that Trump can't pardon his way out of this. Even with the theoretical but super crazy idea of presidential self-parton, go download episode number three for more information on that one. While the president's pardon power is really broad,

the Constitution is actually specific in saying that the president's ability to pardon exists except in cases of impeachment. So that's not going to work. If the Senate acquitted Trump, he remains an office, just like Bill Clinton did. If the Senate convicted Trump, he'd be removed from office. In theory, of course, this presumes that Trump would go along with all of this, that he'd presume the legitimacy of the institutions and the process itself. At this point, I'm not even sure that that's a given. And if the Senate convicted Trump, and he were removed from office, and Trump indeed left

the White House, would the Senate separately vote to bar him from any future office? And if they didn't, could Trump come back as Senator or representative Trump? Again, I don't know if it's realistic, but it's theoretically possible. So to sum it up, impeachment is a check on the presidency, but there are a lot of hurdles to the process, which explains why we haven't done it very often. I can ask you a question then,

but here's the big hypothetical. If he was convicted and removed from office and not barred from future office, could he actually become the president again? Oh, that's a good question. That's a head scratcher. I mean, presumably he could. That is definitely at least some possibility

because it is removal from that particular office. So yeah, the Senate presumably would have to ensure by saying you are barred from all future federal offices if they wanted to be specific about that. So remember West Humphreys is removed as a federal judge. Because he took a job as a Confederate judge. He is barred from holding federal office in the future. He still faced criminal conspiracy charges for obvious reasons he did oppose the union. So in 1865 Humphreys asked for a pardon.

In his pardon request, Humphreys made some unusual arguments, including one that he'd said, well, he wasn't a disunionist per se, but he appealed for a chance to live and die in my native state. President Andrew Johnson pardoned Humphreys in 1865, and as a result, the federal court dismissed the criminal charges against him. President Johnson himself would be impeached and acquitted a few years later in 1868. ["President Johnson's The normal run of the mill way of getting rid of elected politicians is to vote them out

of office, but impeachment is supposed to be like a crisis mode. This is the safety valve, this is breaking the glass saying, we've got to get rid of this person. But it is so difficult, and that's why hardly ever happens. And the only time we've ever successfully removed people are cases of federal judges. So yeah, we don't really have any experience with this, you know, hardly in the nation's history.

You think it's only successful with federal judges because people don't care. Because there's no big opposition, political opposition on the other side, probably. Yeah, I think that's right. I mean, I think it's less in the public's eye when there's a federal judge who gets in trouble. And in the case of Alcy Hastings,

it's not even that much of a black mark. You get to represent the people in just in a different capacity if Senate isn't careful about it. That was episode 10 of Trump Con Law about impeachment originally released on October 9th, 2017. Another episode of Trump Con Law about the complications of criminally prosecuting a president after

this. In now episode 14 of Trump Con Law called prosecuting a president originally released on December 14, 2017. You might have heard this story before. On August 2nd, 1804, a New York arrest warrant was issued for a man who'd fired a fatal shot in a duel in Weehawken, New Jersey. Now murder was a crime in every state, and dueling was also prohibited in most of them. The accused man fled south from New York to St. Simon's Island, that's an island off the Georgia coast.

A few weeks later, a grand jury dropped the murder charge. Instead, the charge was less serious. It was sending a challenge to a duel. In late October of that same year, a grand jury in Bergen County, New Jersey issued an indictment for murder in the same incident. Although those charges were later dismissed, because the victim had died in New York and not in New Jersey. There were hundreds of men who participated in duels in the early days of the Republic, but this one duel stands out. The victim was Alexander Hamilton, the first secretary of the Treasury, and one of the authors

of the Federalist Papers. And the accused, that was Aaron Burr, Hamilton's longtime political rival and vice president of the United States. Burr never did stand trial in New York. And in fact, the very next year in 1805, vice president Burr would preside over the impeachment trial of Supreme Court Justice Samuel Chase in the Senate. Justice Chase would eventually be acquitted

and returned to the Supreme Court until his death in 1811. Burr only found himself in temporary legal peril. But another vice president, Spiro Agnew, had it much worse, even though he didn't murder someone. Richard Nixon's vice president first became famous for the phrases he used to attack critics and the media He called them the Nattering-Naybabs of Negativism and the hopeless hysterical hypokondriacs of history. He really liked alliteration and cash Brahms it turns out

allegedly in 1973 Agnew became implicated in a bribery scandal from the time he'd been governor of Maryland. In 1973, of course, President Nixon was facing his own legal troubles with Watergate. Ultimately, Agnew pleaded no contest to criminal charges for failing to record on his tax returns cash contributions he'd received. That's basically tax evasion. Agnew received three years' probation and no jail time, but make no mistake. It was a criminal conviction.

On October 10, 1973, when he appeared in federal court, Agnew had his letter of resignation from the vice presidency delivered to Secretary of State Henry Kissinger. Now both of these vice presidents faced criminal charges during their time in office. Neither was able to escape criminal prosecution just because of their positions in the executive branch. Right now you might be asking yourself, that's fine for vice presidents, but what about the president?

Can a president face criminal charges well in office? And if not, why not? Why does any of this matter? Because president Trump, less than a year in office, may be implicated in criminal wrongdoing that has already ensnared his former campaign manager, a former campaign aide, a former foreign policy advisor, and most recently his former national security advisor. Does the Constitution allow the prosecution of a president? Let's carefully consider another constitutional conundrum that this current crazy year has conferred upon the constituency.

I could totally be vice-president. This is what Trump can teach us about Con Law, an ongoing series of indefinite length where we take the tweets and hopes and dreams and nightmares swirling around the 40th President of the United States and channel that maelum into learning our Constitution like we never have before. Our music is from Doomtree Records. Our professor is Elizabeth Jo and I'm your fellow student and host Roman Mars. First, let's distinguish a criminal prosecution from impeachment. The Constitution specifies how certain federal officials, including the president and vice president, can be impeached or removed from office.

The House of Representatives decides whether to issue articles of impeachment. These are formal accusations. If it thinks that the person has committed treason, bribery, or other high crimes and misdemeanors, once that happens the Senate presides over the trial of the person being impeached. Now all this sounds like a criminal prosecution, but it really isn't. Impeachment is different because of the outcome of a Senate conviction. The person is removed from office. That's it. No other consequences. Now an actual criminal prosecution, of course, carries with it a lot of possible, very serious

consequences. Prison, fines, probation, things like that. No one argues about whether the Constitution itself considers the president's subject to impeachment is right there in black and white. Article 2 of the Constitution specifically names the President as one of those people who can be subjected to impeachment, conviction, and removal. We've never seen the whole process happen before, but President Andrew Johnson and Bill Clinton came pretty close, both were impeached by the House and tried by the Senate. Nixon, of course, resigned in 1974 after the House Judiciary Committee approved three articles of impeachment, but before the House as a whole voted on them. Now, what about the criminal prosecution of a president?

While a vice president can clearly be prosecuted, and in fact, they have been, it's not quite clear that the president himself could be. Now if you look at the text of the Constitution itself, there's nothing there that says a president is immune from criminal prosecution. The closest thing that exists in the Constitution's text is actually about impeachment. In Article 3, Section 3, it says that the person removed by impeachment shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. So what most people think this means is that a person who's been impeached can also be

prosecuted separately. But it doesn't answer the specific question of whether a sitting president, you know, someone who's still in office, can be criminally prosecuted, whether impeached or not. The Supreme Court has never decided a case that resolves this question. What we do have instead are legal memos written during both the Clinton and Nixon presidencies that give us some opinions on the subject. They're not binding in a way that a Supreme Court case would be, but because they were

written to provide official guidance, they're still pretty useful. In 1998, independent counsel Kenneth Star asked Ronald Rotunda, a well-known conservative law professor and an expert on constitutional law, to write a memo on whether a sitting president, this was Clinton, of course, could be prosecuted. Rotunda responded with a 56-page legal memo.

Its basic point was, yes, yes, a sitting president can be prosecuted. Rotunda thought that the president could delay imprisonment, but not the prosecution itself. But there's an important qualifier to Rotunda's memo. He said he was analyzing President Clinton's very specific situation. Keep in mind, Clinton was ultimately impeached for obstruction of justice and perjury relating to the Apologone's case. This was a case that had nothing to do with the presidency itself. Rotunda was saying, yep, Clinton can be criminally prosecuted for those things, too. In fact, Rotunda made it clear and said,

I express no opinion as to whether the federal government could indict a president for allegations that involve his official duties as president. And then there's Nixon, who ultimately resigned because of the Watergate scandal. This of course involved the president trying to cover up the scandal. In 1973, the Office of Legal Counsel in the Justice Department prepared a legal memo that concluded that a president was immune from criminal prosecution while in office. I can see why Nixon wanted that opinion out there. In March of 1974, a grand jury handed down indictments, these are formal charges, against

seven White House sages regarding Watergate. Now President Nixon was named as an unindicted code conspirator. That term refers to a person who's alleged in an indictment to have engaged in a conspiracy. That's an agreement to do something illegal. But that person's not personally charged in the indictment. Special Watergate prosecutor Leon Joworski advised the jury that in his view, a president

could not be prosecuted in these circumstances. In another memo dated August 9, 1974, the same day that Nixon resigned, Jaworski received a memo from his staff answering the question of whether Nixon could now be prosecuted. The memo began with the premise that there was clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice. So the memo points to reasons why Nixon should not be prosecuted, including a determination that it might just be good for everyone to move on rather than to aggravate political divisions.

But the so-called Jaworski Memoes also raised some reasons to favor prosecuting Nixon. That included the principle of equal justice under law, which requires that every person, no matter what his past position or office, answer to the criminal justice system for his past offenses. In the case of Nixon, of course, it was all moot because President Ford pardoned him on September 8th, 1974. Ford claimed that the tranquility of the nation could be irreproably lost by the prospects of bringing to trial a former president of the United States. Now, if there's any answer to the question of prosecuting a sitting president, it's not

going to come from the literal words of the Constitution. But one accepted form of constitutional interpretation is to infer a constitutional idea from the structure of the Constitution. In other words, we read that Constitution as a whole and think about how the parts work together. In a 2000 memo, the Justice Department's Office of Legal Counsel stated that neither the text nor the history of the Constitution ultimately provided guidance in determining whether

a president is amenable to indictment or criminal prosecution while in office. But if a president could be prosecuted while still in the White House, that might violate the Constitution by preventing the president from doing his job. It's that kind of reasoning that has led the Supreme Court to rule that a president can't be sued in a civil lawsuit for the official acts he takes as president. And it's also led the Supreme Court to decide that a sitting president can be a defendant in a lawsuit for things that have nothing to do with the presidency.

The Supreme Court made that decision in the 1997 case of Clinton versus Jones. And of course, it was the aftermath of that case that ultimately led to President Clinton's impeachment. So let's get to Trump. Special counsel Bob Mueller has been investigating any possible links between the Russian government and the Trump campaign, an investigation that on May 18, Trump tweeted as the single greatest witch hunt of a politician in American history. On December 1, Trump's national security advisor pleaded guilty to lying to the FBI

about conversations he'd had with Russian ambassador, Sergey Kislyak, last December. That plea, which was to a relatively minor offense, has been understood to mean that Flynn has now flipped. In other words, he's cooperating with special counsel Mueller in exchange for avoiding more serious charges. His plea agreement requires his full cooperation. As of today, Trump's former campaign chairman, two campaign aides, and now his former national security advisor, have now all been charged with felonies. So there's at least two possible problems for Trump. First, the statement of facts underlying Flynn's plea agreement said that a, quote,

very senior member of the presidential transition team directed Flynn to contact the Russian government. The statement also says that a, quote, senior official of the presidential transition team spoke to Flynn about what to say to the Russian ambassador. We don't know who these people are, but we do know this. Flynn was Trump's national security advisor. If he's receiving a deal to avoid greater or criminal responsibility, then it's because he has information on other people who are at least as important as or who were more important than he was

in the White House. That's not a very large group of people. It might implicate President Trump. Second problem. The day after Flynn entered his guilty plea, Trump tweeted, I had to fire General Flynn because he lied to the Vice President and to the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition

were lawful. There was nothing to hide, exclamation point. Now that's pretty interesting. Remember that President Trump originally justified forcing Flynn out of his position because Flynn had lied device President Mike Pence about his conversations with the Russian ambassador. Flynn formally resigned on February 13th.

The next day, Valentine's Day, Trump met with then FBI director James Comey. According to Comey, Trump said, I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go. Call me, said he made no promises to Trump. Call me would later publicly testify to all of this in June before the Senate Intelligence Committee.

And on May 9th, Trump fired Call me. If Trump knew, as his December tweet suggests, that Flynn had broken the law by lying to the FBI, and that's certainly a crime, when he asked Komi to lay off a Flynn, could that constitute the crime of obstructing or impeding the investigation of a crime? In other words, did Trump fire Komi for permissible reasons or impermissible ones? Now, if we were talking about an ordinary person, someone who with corrupt intent tries to impede or obstruct an investigation, well, that person

is likely going to be guilty of the federal crime of obstruction of justice. But Trump is not an ordinary person to say the least, but what's relevant here is that he's the president of the United States. Just a few days after Trump posted that tweet about why he fired Flynn, it seems pretty clear that people in the White House knew that it did not look good. So on December 4th, the president's lawyer, John Dowd, offered another defense. It's not that Trump personally didn't obstruct justice. It's that no president can obstruct justice under the Constitution. Okay, so let's think about this for a minute. Maybe doubtment that

it's not obstruction for the president to do things he's already allowed to do, like fire the FBI director or say, hey, dropped his case because we have other priorities. But a more extreme version of this defense sounds a bit like the president can do no wrong, and that seems pretty incompatible with the democracy that no one, not the courts and not Congress, can hold a president accountable, that a president is above the law.

It's that kind of thinking that led to Charles I losing his head in 1649. And keep in mind that both Clinton and Nixon had obstruction of justice charges levied against them by the House in impeachment proceedings, or at least the beginnings of impeachment proceedings. And on the other hand, the criminal prosecution of the President, while in office, would be a destabilizing event for the country. The 1973 memo from the Office of Legal Counsel suggested that it might be possible to bring charges against a president, but it offered this note of caution. Given the realities of modern politics and mass media and the delicacy of the political

relationships which surround the presidency, both foreign and domestic. There would be a Russian roulette aspect to the course of inditing the president, but postponing trial, hoping in the meantime that the power to govern could survive. So does the Constitution allow the prosecution of a sitting president for things he has done as president of the United States. The answer is we just don't know for sure. And it's yet another norm breaking question we've had to address in this year of President Trump.

So since the vice president is essentially a president and waiting, is it possible that the fact that two vice presidents have been criminally indicted could be seen as some kind of precedent that could apply to the position of president as well. I think that's hard in part because of the one of the constitution specifically says about the president himself in a way that doesn't refer to the vice president. It says that all of the executive powers shall be vested in in a president. It doesn't give the vice president that same power. The president is also the commander-in-chief, for example. He shall take care to faithfully execute the laws. None of these responsibilities are given explicitly to the vice president. So there's a pretty strong argument in the Constitution. There is something unique and special about that job, which on the one hand makes the presidency incredibly important for a lot of good and positive things.

But when it comes to wrongdoing of this sort, it raises serious questions of, could it paralyze the country if a president engaged in a crime and we decided that the president had to be prosecuted for it? Is there something to the argument that the criminal prosecution of the president would be so disruptive to make it just a terrible idea, even if it meant that justice isn't being applied equally to every person in the country? If you think about how bad an impeachment process is for the country in terms of riveting our attention to it and nothing else, in some ways a criminal prosecution would be worse because there it's a much more severe potential punishment. And some ways, a criminal prosecution would be worse because it's a much

more severe potential punishment. And I think, you know, on balance, it's not just that it would be bad for the country. I mean, you could even think of it in terms of being a criminal defendant. Imagine being a criminal defendant and being the president of the United States. There really is no possibility of having a fair trial. Have you, potential jurors ever heard of the president of the United States? Can you imagine finding a juror who'd say, well jurors ever heard of the President of the United States? Can you imagine finding a juror who'd say, well, I know nothing of this alleged wrongdoing. That would be impossible.

And that's a central tenet of the criminal justice system that we'd want to have a fair and impartial jury. It's really hard to think of a scenario where we'd have such a fair trial being accorded to the President. Like, if we're going to place bets, I just don't think this is gonna happen. I mean, I think it's far less likely than impeachment, which itself is pretty unlikely. But it raises the question in part because we're, you know, think about the president's lawyers argument that the president cannot obstruct justice because he is the chief executive official

of the United States. That's a remarkable argument. And even if we just debate it in the press, it's worth thinking about. I mean, do we want a president who believes that? That's the question. No. That's an easy debate for me.

That's the easy debate for me. Prosecuting a president was originally released on December 14, 2017. This show is produced by Elizabeth Jo, Chris Baroube, and me Roman Mars, and by his online at trumpconlaw.com. All the music in trumpcon law is provided by DoomTree Records, the Midwest hip-hop collective. The theme song and outro music that I'm talking over right now is by the band Shredders. Featuring Laserbeak, POS, Paper Tiger and Sims. They have a new album out right now. This is me in the present day of 2019, telling you there's a new album out right now.

It is excellent. It's called Great Hits. Get on it, people. It is so good. You can find out all about DoomTree Records. Get merch and learn about current tours at DoomTree.net. We are a proud member of Radio Topia from PRX, supported by listeners, just like you. A brand new 99PI episode will be out next week. Talk to you then.

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