It's a memo. That's all it is. It's not a law that's been passed by Congress. It wasn't put there by executive order. It isn't even a court decision. It's an internal memo within the Justice Department.
It's had an outsized effect on our politics and legal proceedings lately, and it accelerated as applied to a rogue, lawless, amoral presidency. It served as a firewall against the rule of law, the one thing that a president's supposed to respect no matter what. Instead, it was flaunted, no matter what.
To wit: the supposition that a sitting president can't be indicted for crimes or be subjected to other legal proceedings. We all have to wait until he's out of office.
Ex- ran with that one to absurd extents. "I could stand in the middle of Fifth Avenue and shoot someone and not lose voters" he famously said during his first campaign, and he did what he could to extend that very idea as far as he could. Being invulnerable politically isn't the same as invulnerable legally, but that's pretty much how he applied it. Indeed, his lawyers tried that little gambit in court--to no avail, but they had the chutzpah to try.
In any event, the impeachment trial showed the extent to which he stonewalled any reasonable effort of House Democrats to subpoena his records and staff. If elected again, you can bet that that's where he'll go, too.
Seems to me that all the Attorney General, Merrick Garland, would have to now do is tear that memo up. There: Done. Now a sitting president can be indicted and/or sued and if necessary, stand trial for crimes committed.
Why hasn't anyone brought this up, having learned what we've learned about how someone might extend the limits of ethics beyond anything previously tried? I don't get it.
To be sure, this Justice Department will operate on principle. Just yesterday, it announced that it would, indeed, defend ex-'s nasty comments to E. Jean Carroll, answering her accusations of rape, which she otherwise wants to confront him about in a libel trial, since he accused her of being a liar. Turns out those comments, however awful, fall within the scope of the president being able to defend himself and having that reflect how people view the performance of his job--wide latitude indeed, and style points irrelevant.
If it lets this slide, then future presidents have to more closely measure what they get to say if accused, especially falsely, of wrongdoing or even criminal behavior. And we have to give the benefit of the doubt to the American people--regardless of how difficult that is becoming--who might just put someone better than ex- in the White House. Except they would have to wait four years. Taking the wide view doesn't always feel good.
Which brings us back to the original point. If the Justice Department should scrap the previous memo and allow presidents to be indicted for crimes while in office, wouldn't that unnecessarily waste the public's time while the concomitant ballyhoo ensues? After all, the president can't change behavior committed before he came to office.
As in most things of that nature: Well, yes. And no. If a president is being pulled off to the side of the road and indicted endlessly--especially in today's atmosphere, political enemies would spend an incredible amount of resources finding ways to do that--the public's interests don't look best served. But then, a first-term president, especially, would normally stand for re-election, and reports of untoward behavior are certainly fair game. But that's for the First Amendment, not the Fourth, Fifth, or Sixth. It wouldn't stop us from making a note of it.
There is the grand jury process, too, in which 23 people get to vote by majority whether to proceed with criminal indictments. Unquestionably, presidents would and should be subject to that preliminary review. But getting indictments are, reportedly, pretty easy to do, since the prosecution has the process very much rigged for it: There's no cross-examination, for instance, no chance for a president to respond. It's more or less an interview process with one side handling the questions.
Maybe, just maybe, for presidents only, that process could be amended. If so, though, who should be responsible for putting that into motion--Congress (good luck there)? Or the Justice Department, which issued the original memo in the first place?
Let's not forget, too: Joe Biden was accused of sexual assault during the campaign. The accuser was discredited by several accompanying news reports, and oddly disappeared. No solid evidence emerged. What if she should show up again and want a more public and thorough airing? Should Biden stand trial for it while in office? Wouldn't that put him in the same position as ex-?
I think the memo can be dismissed and a narrow ruling made on it. To wit: Any indictment made toward sitting presidents would have to be made concerning something they did while they were presidents. But to let them simply run about without the accountability that the rest of us poor slobs have would be to crown them as untouchable and more imperial, actually, than the position already is.
Executive privilege being what it is, the president already has plenty of protection against people who, legally or otherwise, wish to diminish the effects of their work, and the last one stretched that privilege beyond its normal boundaries, which shouldn't surprise us by now. But to say that a sitting president is immure from the legal process for four whole years makes a mockery of the meaning of law. It protects them unscathed. That's unacceptable.
What we've seen from an ex-president with no ethical boundaries will be duplicated way too soon in the future. Presidents must be held accountable--maybe not exactly like the rest of us, but they must realize that their actions will not only be scrutinized thoroughly but litigated if they enter the realm of probable cause. That's a slippery slope before which self-respecting people should draw a red line.
Be well. Be careful. With some luck, I'll see you down the road.
Mister Mark
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