Robert F. Jakubowicz: Allow Supreme Court to decide if Trump is truly above the law

PITTSFIELD — Did the drafters of the Constitution actually create a presidential office with virtual dictatorial powers for a president to avoid being investigated and prosecuted for federal crimes? Can President Donald Trump make himself immune from being investigated and prosecuted for federal crimes by a self-pardon and obstructing or firing the investigators and prosecutors?

There is no explicit answer in the text of the Constitution. There are no prior Supreme Court cases on point as precedents. And there is no comparable history of an investigation of a president as the one involving Trump. Clearly the resolution of these constitutional questions remain to be answered by the Court.

But Trump's legal team, now led by Rudy Giuliani, wants the public to believe that they have the answers. They claim Trump can immunize himself from ever being charged for obstruction of justice for carrying out his presidential duties to pardon himself, or stop the investigation as the executive in charge of the Department of Justice. This campaign by Giuliani is nothing more than a biased legal argument to defend the president in the media rather than in a court. The arguments are more political than legal.

Can one forgive oneself?

Because the Constitution does not textually answer these questions, constitutional law experts disagree among themselves about what the answers are and they speculate how these questions would be resolved by the Supreme Court if this matter gets that far. Jonathan Turley, a law professor at George Washington University, thinks that the simple text in Article II of the Constitution that the president "shall have Power to grant Pardons," means he can pardon himself. Richard Painter, a law professor at the University of Minnesota and President George W. Bush's White House ethics lawyer, disagrees. Painter points out that the definition of the word "pardon" is forgiveness, which means to forgive someone other than yourself.

He was also appalled at Giuliani's reported comment that Trump could have shot James Comey, the former head of the FBI, and not be indicted for it. Such a consequence, according to Painter, is totally inconsistent with what this country stands for.

Alan Dershowitz, a Harvard Law School professor, believes that a president cannot be charged with the crime of obstructing justice for firing Comey, or if he took control of the Justice Department to order it to stop the investigation because this is within his authority under the general statement in Article II that the "executive power" is vested in the president. Harvard Law School Professor Laurence Tribe counters Dershowitz's speculation as being a "strange idea" that nothing a president does as the head of the executive branch of government can be part of a criminal or impeachable obstruction of justice.

There is also a memorandum from the Office of legal Counsel in the Justice Department that a sitting president cannot be indicted. But there is no constitutional text to support this. It is based on the speculation of the lawyer who wrote it that such a happening would undermine the capacity of a president to perform his duties. From the reports by journalists who follow Trump, he appears to spend more time on golf courses, at Mar-A-Lago, and tweeting than at the White House performing his duties.

Meanwhile, Special Counsel Robert Mueller, except for public disclosures in court filings for indictments and pleas, continues his investigation into criminal activity in last year's presidential race without any public statements, as a competent investigator should. He awaits its conclusion to try his case or cases, if any, in court, not in the public.

Founders drafted blueprint

Like Giuliani, I, too, offer my opinion about a constitutional answer to these questions.

The drafters of the Constitution did not write that document with the precision and detail that lawyers today prepare documents. Their main intent was to unite the former colonies under a government that effectively would do this rather than the unworkable Articles of Confederation. As a result there are many parts of the Constitution that they wrote as a blueprint for future Americans to build this country on.

One such part which is in the news today is charging and trying a sitting president with a crime. Their focus on this office was a presidential term other than for life as in a monarchy. One main concern was on having to endure a long term with a bad president. They compromised on a four-year term. but inserted an impeachment procedure to remove one earlier if it became necessary. And they added a provision that the impeachment conviction of a president would not prevent "the indictment trial, judgment and punishment" of that person according to law.

And this brings me to my legal educated guess that the drafters assumed that a sitting president like any other person is subject to criminal prosecution so it was unnecessary to write this into the Constitution. But they wanted to make it clear that a conviction of impeachment would not prevent such a prosecution of an ex-president.

Guiliani said "If Mueller tries to subpoena us, we're going to court." Bring it on Rudy, so the Supreme Court can resolve your threat one way or the other.

Robert "Frank" Jakubowicz is a retired lawyer and a regular Eagle contributor.


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