Trump’s lawyers are moving the goalposts on presidential accountability

Let’s begin with three basic assertions about presidential accountability. First — as my colleague Charlie Cooke outlined yesterday — the constitutional mechanism for presidential accountability isn’t indictment but impeachment. Second, the Department of Justice has long held that the “indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” And third, the standard for impeachment is far more permissive than the standard for criminal prosecution.

Take these three legal realities together, and it’s abundantly clear that the president isn’t “above the law,” even under the broadest possible interpretations of presidential power. Impeachment is a process defined by constitutional law, and there is nothing that President Trump — or any other president — can do to escape the judgment of Congress.

Yet the public debate is now dominated by two questions that aren’t all that relevant to the actual, constitutional system of presidential accountability: Can a president pardon himself? And did the president obstruct justice? The reason these questions are a distraction is that the president can’t pardon himself out of impeachment — and impeachment isn’t confined to situations where the president violates criminal law. But each day these very questions are furiously argued from coast to coast. Lost in the argument is the broader analysis of presidential fitness and the public trust, the analysis that the Founders intended as the essence of presidential accountability.