This is good politics for her but bad policy, and likely to be deemed unconstitutional by a conservative Supreme Court.
Here’s my plan:
* Pass a law clarifying Congress’s intent that the Department of Justice can indict the President of the United States.
Congress should make it clear that it wants the President to be held accountable for violating the law, just like everyone else.
Title 18 of the United States Code, which contains most provisions of federal criminal law, applies to “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission[.]” Congress should clarify that it intends for this provision to apply to all persons — including the President of the United States.
If Congress does so, one of the strongest arguments against indictment disappears: that the Constitution gives Congress the sole authority to decide when to interfere with the President’s duties, and that a criminal indictment would forcibly take that power away from Congress. It’ll also remove any statutory ambiguity that remains.
Would Congress’s belief that the executive can/should be prosecutable by his own subordinates influence the judiciary’s thinking on whether that’s constitutional under Article II? The rationale behind the DOJ’s current policy, that the president can’t be indicted, isn’t so much that Congress alone can “interfere” with the president but that the Constitution grants the prosecution power to him and no one else. He can delegate it to his deputies at the Justice Department but he has final say on who’s charged and who isn’t. If that’s so, that constitutionally the president can’t be prosecuted unless he himself agrees to it, then Warren’s proposal to have Congress say otherwise is a nonstarter. To uphold her new law, SCOTUS would essentially have to declare that the Justice Department — or at least the special counsel — is a de facto unaccountable fourth branch of government, exactly the problem Scalia warned about in his famous opinion in Morrison v. Olson.
Right, Scalia’s opinion was a dissent, not a majority opinion. But his view has become so orthodox among righties over the last few decades that I’d guess the Roberts Court would adopt it as their own if forced to rule on Warren’s plan.
Also, does Warren mean to imply that because Congress has the power to “interfere with the President’s duties” via impeachment it’s entitled to share some of that power with the Justice Department by making the president indictable? One doesn’t follow logically from the other. The fact that the legislature is empowered to strip the president of his office doesn’t mean it’s entitled to empower other agencies to strip him of his liberty while he holds that office.
If Congress wants the DOJ to indict the president, it doesn’t need to pass any new statutes. Just impeach and remove him and then prosecutors can deal with him like any other citizen. Doing it Warren’s way, with a sitting president trying to govern the country under the shadow of a criminal proceeding, would produce some of the absurdity described in this post last night. In theory, he might be indicted but *not* impeached, raising the prospect of the chief executive being put on trial and convicted of a felony while still in office. What would Warren have the government do in that scenario? Before Trump it would have been easy to say “Surely the president would resign in disgrace if convicted” or “Surely even a Congress controlled by his own party would remove him after a conviction,” but ehhhhhhhhh. No one thinks either of those things are true anymore. In which case, what would happen? Bill Barr sends U.S. Marshals to the Oval Office to apprehend him?
Warren’s offering a pat solution here to a deep political problem. Impeachment is difficult in any age, but in an age when partisanship resembles religion, it’s impossible. You’ll never get enough buy-in from the president’s party to reach 67 votes in the Senate, no matter the crime or the evidence to support it. It’d be high-order apostasy, punishable by banishment from the faith. Her answer to that democratic dilemma is to dispense with it by dumping the decision on whether to remove the president on an agency that’s unaccountable to voters, the Justice Department. It reminds me a bit of the long drift in warmaking authority from Congress to the president: That’s another case where members of Congress are faced with an unusually difficult high-stakes decision with enormous political downside if they choose incorrectly. Their solution: Don’t decide. Punt it to the executive branch. Let them worry about it.
Still, I think this proposal serves her ends in the primary. Warren has become chief advocate in the Democratic field for impeaching Trump and it’s paying off. A new YouGov poll finds that she’s now second, behind only Joe Biden, when Dem voters are asked whom they’re considering voting for. Among self-described liberals she’s in first place, six points ahead of Bernie Sanders and the only candidate in the race north of 50 percent. The left wants to see Trump brought down and Warren knows just what to say to them. Today’s plan can only help her.