Merrick Garland is right to resist calls to indict Trump

The next problem is the awkwardness, and possible folly, of applying broadly written statutes in a way that implicates separation-of-powers concerns that were remote from anyone’s contemplation when they were adopted by the framers of the Constitution. This could also be the basis for a legal challenge to a prosecution. The Supreme Court has ruled that the Administrative Procedures Act does not apply to the president even though it includes no explicit exemption for any member of the executive branch.

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The statutes that would be used against Trump include no exemption for members of Congress, either. It’s not hard to picture the tables being turned. What if, next year, Republicans control Congress and use its committees to launch investigations of the Biden administration? What if Democrats decide these are political stunts and do what they can to slow down the Republicans? Would they then be impeding or obstructing an official proceeding?

If Trump gets indicted under the theory now being advanced, the odds that Republicans would say so approach 100%. Each party is already too eager to criminalize the other’s politics.

The third drawback to indicting Trump: It would be more dangerously divisive even than McQuade, to her credit, concedes.

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