That leaves the possibility of criminal charges against the president being filed by the Manhattan prosecutors who kept the children of America safe from the likes of such hardened criminals as Dinesh D’Souza and Martha Stewart. They’re demanding a “substantial” prison term for Cohen that may come out to nearly four years. The contrast with Flynn, the supposed Russian colluder at the heart of the Mueller investigation, is telling.
What happens if a U.S. attorney in Manhattan decides to charge the president of the United States with a crime like Cohen’s? Either nothing at all or a constitutional crisis. Federal prosecutors, after all, are not an executive branch unto themselves—they answer to the president, who has the power to command them and fire them as he sees fit. No one in the executive branch can pull rank on the man that the Constitution established as the head of the executive. If a prosecutor were to try to do so anyway, the case would quickly find its way to the Supreme Court. Liberals no doubt will cry foul, but partisanship aside, it’s hard to see how the judicial philosophy of the Republican majority on the Supreme Court today would lend itself to anything but an affirmation of the unitary executive. The president cannot be prosecuted by his own subordinates. This, after all, is one reason why impeachment exists in the first place. If the president is guilty of a major offense—“high crimes and misdemeanors”—it’s up to Congress to do something about it. Or else the voters at the next election.