JUST DO IT!
The Founders Would Agree: Trump Can Be Indicted
You bet they would, and the reason has to do with the changes that have been made to the Senate since the 1787 Constitutional Convention.
There’s absolutely nothing in the U.S. Constitution that even suggests a sitting president cannot be indicted. In fact, if the Founding Fathers were able to see how today’s Constitution has been amended since they first drafted it, I have little doubt they would support indicting Donald Trump over trying to impeach him.
As I wrote recently, the only obstacle to Robert Mueller indicting Trump before he’s impeached is the Department of Justice’s internal policy, not law, which was based on two memos drafted by DOJ lawyers in 1973 and 2000.
Even those memos acknowledge there’s no prohibition in the Constitution to indict a sitting president. Rather their argument comes down to one primary point: Indicting a president would “hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.”
As I noted in my earlier article, however, that assertion overlooks the reality that the impeachment process itself is a tremendous distraction and effort for a president. Yet despite that, in 1998, while Bill Clinton was subject to impeachment and a trial that took five weeks (compared to Paul Manafort’s recent trial that was only three weeks), the United States government functioned just fine. Clinton did plenty of other things during those five weeks, like delivering a State of the Union Address and ordering an air strike on Saddam Hussein’s chemical and biological facilities after he announced Iraq would no longer cooperate with inspectors.
But now I want to make a new, potentially even more compelling argument why indicting Trump is the right thing to do today: Our Founding Fathers would support it and likely even demand it. That’s because the Constitution has been amended since it was drafted in one very fundamental way that has significantly altered the impeachment scheme they had designed.
The Constitution has always provided that the House shall impeach the president (or any other federal officer) and then the Senate shall act as a jury. If two-thirds of the senators agree the president is guilty of the charges, he would be removed from office. Pretty simple.
Except, however, one game-changing development has happened since that procedure was passed by the Founders.
The original Constitution did not contemplate that the Senate would be elected by the people. Rather, Article I, Section 3 of the Constitution as drafted called for each senator to be elected by the state legislatures.
Why? It’s the same reason the Framers wanted each senator to have six-year terms, as opposed to the two-year terms they have in the House, namely so they would “be freed from pressures of public opinion.” As James Madison explained, one of the primary reasons for the Senate’s structure was to “protect the people against the transient impressions into which they themselves might be led."
The Senate was expressly designed to be a counterbalance to the House, which would be more beholden to political concerns of the day, with Madison noting: "If it [the Senate] not be a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it." In fact, they chose to have senators not be elected by voters in order to provide them “independence from short-term political pressures.” This was one of “the few non-controversial decisions reached by the [Constitutional] Convention.”
Thus, it’s undisputed that the Framers envisioned the Senate would act as a jury focused on right and wrong, not on partisan election concerns. But that all changed when the 17th Amendment was enacted in 1913, which called for the direct election of senators as we have today. This amendment was championed by the progressive movement of the day and, to be clear, it is something I fully support.
However, as a practical matter, this amendment fundamentally changed the Framer’s carefully devised scheme for the trial of a president. No longer was the Senate composed of people who could be independent from the pressures of public opinion. Rather, this jury was now composed of people who were highly concerned with not being primaried or losing a general election. And in our time, they are obsessively concerned with those matters. This couldn’t be more opposed to what the Framers intended.
And we can see the real word impact with the trials of the two presidents who have been impeached, one before the 17th Amendment and one after: Andrew Johnson in 1868 and Bill Clinton in 1998. In Johnson’s case, after the House had voted in favor of 11 articles of impeachment, a two-month trial in the Senate was held beginning in March 1868.
The trial was the spectacle of the day with 1,000 people allowed to attend each session and the media covering every development. After the trial, the vote of the 54 senators was 35 guilty to 19 to acquit—just one short of the two thirds needed to remove Johnson.
But what was noteworthy was that the vote was not along party lines despite the intense media coverage and public attention. Of the 54 Senators, 42 were Republicans, meaning they could have easily reached the two-thirds needed to remove Democrat Johnson if they had voted along party lines. But seven Republicans—or one-sixth of the total—defied their party leadership and voted to acquit.
Flash forward to Clinton’s trial in 1998 after the direct election of the Senate became the rule. What happened? Every single senator on both sides of the aisle voted along party lines except for one: GOP Senator Susan Collins, who voted not guilty on both counts facing Clinton.
It’s clear that in the case of the impeachment, the Founders wanted a Senate to act as a jury that was focused on the evidentiary truth, not partisan politics. But the 17th Amendment changed that.
Consequently, the best way to follow the Framers’ intent is to first indict Trump and allow the charges to be heard in the independent judiciary. If Trump is convicted of crimes, then impeachment can take place swiftly. But waiting for a GOP-controlled Congress to do the right thing is not only laughable, it undermines what the Framers had envisioned as a check on a corrupt and criminal president.