Take away the president's immunity

The Department of Justice has the discretion to reconsider the OLC opinions; it has done so once before, and it should do so again. But more can be done, especially in view of the fact that a future president seeking to reclaim immunity might simply direct the Justice Department to reverse course and restore the original grant of legal protection.

A more comprehensive, decisive reform would be to remove the department from the executive branch and make it an independent agency. This was proposed by Senate Watergate Committee Chair Sam Ervin, who called for the DOJ to be an “independent establishment of the United States” headed by an attorney general confirmed for a six-year term.

The plan met with strong opposition from a bipartisan roster of seasoned and respected lawyers, including Attorney General Griffin Bell, who served under President Jimmy Carter—who himself had originally favored the idea. A proposal like Ervin’s presents complicated issues and would require close examination. But objections that seemed sound in the late 1970s have less force, and bear reappraisal, amid the conditions of American politics half a century later. The costs of dismissing this major reform out of hand are too high.

The final piece of this reform program would be to overhaul the broken impeachment process. The OLC opinions on immunity rested heavily on assumptions about the effectiveness of impeachment as the answer to a president willing to abuse his immunity from prosecution: Congress could remove a rogue president from office, and then prosecutions, if merited, could proceed. I also once thought so, and wrote that the president “can fire prosecutors one after the other until he arrives at a pliant replacement … It is also highly probable that, whatever its view of the core offense under investigation, Congress would intervene via the impeachment process to restore the ‘rule of law.’” In light of our polarized politics and recent experience with the impeachment process, this statement does not hold up well.