Cut To The Bigger Picture

An intriguing suggestion:

Obstruction of justice, it turns out, is difficult to prove. Is one tweet enough? Two? Six? See what I mean? Put so much as a single toe into that rabbit hole, and you’re quickly sucked in.

...But Mueller has another option. He can bring an indictment against Trump.

I know, I know. There are two opinions by the Office of Legal Counsel in the Department of Justice that a president cannot be indicted, and it’s said that Robert Muller has always been one to “follow the rules.” But that’s just it. The “rule” against indicting a sitting president is a rule, not a law. If Mueller were to bring an indictment against Trump, it would certainly be tested in the courts by Trump’s lawyers. Opinions are mixed about what would happen if and when the case reached the Supreme Court.

I think the case would depend on what crime Mueller seeks an indictment for. There is plenty of evidence that Trump has obstructed justice. And more evidence recently emerged that the Trump campaign conspired with Russians in the manipulation of Democratic Party emails to win the election of 2016.

...But I don’t think Mueller should bother with these crimes he committed in conspiracies with others. Rather, he should indict Trump for committing a crime only Trump, as President of the United States, can commit. He should indict Trump for violating the “Faithful Execution Clause” of the United States Constitution, which states in Article II, Section Three, that “he shall take Care that the Laws be faithfully executed.”

Printz v. United States, decided in 1997 in a challenge to the Brady Handgun Violence Protection Act, left little doubt as to who has the authority and responsibility to execute the laws of the United States: “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed," Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who with other presidential appointees), Art. II, §2.”

...Suffice to say, there is ample law to back up the notion that the Constitution requires the president to not only “execute” the laws, but to follow them as well. In taking numerous acts to break the law, whether by tampering with witnesses, or overtly obstructing justice, or conspiring with a foreign power to steal the election of 2016, Trump has demonstrably not “taken care that the laws be faithfully executed.”

It’s a crime only Trump, as president of the United States, can commit, because it involves a legal requirement on the president set forth not in U.S. Codes, but in the Constitution itself.

If Mueller were to indict Trump for violating this clause of the Constitution, he would not only be forcing the issue of whether a president is above the law as written for everyone else in the U.S. Code, but whether the president is subject to the law of the land as set forth in the Constitution itself. It would be an indictment for violating a law specifically written to apply to the president and no one else.

Such an indictment by Mueller would be throwing the entire matter into the lap of the Supreme Court without delay. It would be an unavoidable constitutional question, because it is a uniquely constitutional crime. It forces the issue of whether or not the laws apply to the president by making the law in question the constitution itself.

Some have said that the Founders always knew that this country would one day face the threat of a demagogue set on subverting the country by subverting its democracy. Well, they provided not one, but two ways of dealing with the situation. Not only can such a demagogue be impeached, he can be prosecuted for failing to “faithfully execute” the laws.

It’s almost as if the founders had in mind an out of control lying authoritarian monster like Donald Trump himself, isn’t it?