Since Donald Trump came down the escalator of Trump Tower to launch his run for president, we have found ourselves asking questions we never believed we would have to ask about our leaders. The loudest of those questions concern Trump’s criminal activity. While we know that Trump was perhaps the most blatantly criminal person ever to occupy the White House, it’s quite another matter to be able to prove it beyond a reasonable doubt.
That effort has been hindered by the longstanding Department of Justice (DOJ) policy against indicting sitting presidents for crimes committed while in office. That policy did not anticipate a situation where a president’s political allies were willing to look the other way when said president essentially ran the White House and the country as a crime syndicate.
In 2019, former FBI director Robert Mueller released the results of his special counsel investigation into Russia’s attempt to hack the 2016 election for Trump. While Mueller outlined at least ten potential instances in which Trump obstructed justice, he concluded that none were egregious enough to merit a criminal referral. By the time Trump left office, the already limited window to prosecute him for these potential crimes was even narrower, given that much of the time in the five-year statute of limitations had already elapsed. The ticking clock has only added to frustrations inside and outside this country about the prospect of Trump never facing justice for his actions.
Fortunately, two of Trump’s biggest gadflies in Congress—Reps. Jerry Nadler of New York and Adam Schiff of California—realize that even if we can’t make Trump stand trial for his crimes in office, we have to prevent the possibility of another criminal president avoiding accountability. They have introduced legislation that would all but eliminate the statute of limitations for presidents who commit crimes while in office.
The DOJ’s policy against indicting sitting presidents for federal crimes has its roots in a DOJ memo issued in 1973, during the worst of Watergate. The 41-page document, penned by assistant attorney general Robert Dixon, head of the DOJ’s Office of Legal Counsel, was titled “Amenability of the President, Vice President, and other Civil Officers to Federal Criminal Prosecution while in Office.” While delving into several historical documents to weigh the pros and cons of indicting a sitting president, Dixon ultimately concluded that the president’s role was too vital for him to be indicted while in office.
Dixon argued that if a president had to face criminal charges, it would interfere with many duties “which cannot be performed by anyone else.” Dixon believed the concern was especially acute given that the president’s power had grown to a level “undreamed of in the 18th and early 19th centuries.” Dixon also claimed that if an indicted president opted to go to trial, a guilty verdict might not be seen as legitimate, given the “passions and exposure” surrounding the presidency.
For these and other reasons, Dixon argued that impeachment and removal were the only means of dealing with potentially criminal conduct by a sitting president. While he reiterated that there was no bar to criminally charging a president once he left office, he openly admitted that there was a possibility the statute of limitations could run out before then. While conceding that this potentially created a “gap in the law,” he believed indicting a sitting president carried too many unacceptable risks.
Unsurprisingly, having to endure a blatantly criminal president in recent years has led to calls for the Dixon memo to be revisited. Among the loudest voices calling for the memo to be reconsidered is J. T. Smith, who served at the DOJ alongside Dixon. Watch him make the case on MSNBC’s The Rachel Maddow Show in 2019.
One thing is unmistakable from reading Dixon’s memo. He clearly assumed that Congress would swiftly impeach and remove a president who engaged in criminal conduct. After all, impeachment and removal would make any concerns about indicting a sitting president moot. That process worked perfectly during Watergate. When the “smoking gun tape” provided irrefutable evidence that Richard Nixon was directly involved in covering up the break-in, Nixon’s support in Congress evaporated. According to Sen. Barry Goldwater, Nixon was facing impeachment by an overwhelming margin in the House—something close to unanimous support. Goldwater claimed only 15 senators were willing even to consider acquitting Nixon—not even half of the 33 votes Nixon needed to stay in office. Faced with this stark and unmistakably bipartisan math, Nixon resigned.
Nixon was pardoned by Gerald Ford soon after resigning. It turned out that Nixon had become gravely ill less than a week after leaving office. With reports that a trial could not credibly begin until early 1975, it appears that Ford was partly motivated by concerns that Nixon wouldn’t live that long—or at least that he would have been physically unable to stand trial.
Ford’s earlier claims that Nixon had suffered enough by being forced out of the White House in disgrace proved to be an albatross around his party’s neck in 1974, and his own two years later. Political fallout notwithstanding, the system worked exactly as Dixon seemed to have expected.
But to be effective, the process requires Congress to have the political will to act. During Trump’s two impeachments, even though it was beyond dispute that Trump had trampled both the Constitution and his oath to preserve, protect, and defend it, intransigent Republican opposition prevented him from facing his reckoning.
In 2019, after Trump attempted to bully Ukraine into joining a politically motivated investigation into Joe Biden, Republicans were unwilling to take off their red blinders even for a minute and uphold their oaths of office. Instead, we were served with hair-on-fire claims about how evil liberals were in cahoots with the deep state to stop Trump, as well as warnings from Trump’s evangelical supporters that impeachment amounted to an attack on their values.
Minority Leader Kevin McCarthy summed up this mentality. At the very start of his remarks opposing Trump’s first impeachment he claimed, with a straight face, that the Democrats were only impeaching Trump because they could not bring themselves to accept that he was president.
McCarthy also claimed that Democrats were trying to turn impeachment into “an exercise of raw political power.” His remarks were little more than a longer version of this tweet from then-First Daughter-in-Law Lara Trump.
If anything, the Republicans’ failure was even starker during Trump’s second impeachment. Even though it was clear that Trump had incited the deadly insurrection on Jan. 6, 2021, to steal a second term, only 10 House Republicans were willing to summon the will to impeach him. When Trump was tried in the Senate, only seven Republicans voted to convict—10 short of the necessary threshold.
One of the 10 House Republicans who voted for impeachment, Rep. Adam Kinzinger of Illinois, later recalled that he believed as many as 25 Republicans would vote to impeach—only to be surprised when just nine of his colleagues joined him. According to Democratic Rep. Jason Crow of Colorado, one of the managers during Trump’s first impeachment, several more would have done so, but feared for their lives. Then-Senate Majority Leader Mitch McConnell refused to call the Senate back into session in order to ensure the trial would begin before the end of Trump’s term. That made his ultimate decision to acquit Trump because he was no longer in office—a sentiment shared by no fewer than seven other senators (Rob Portman, John Thune, Shelley Moore Capito, John Cornyn, Mike Rounds, Steve Daines, and Jerry Moran)—sound disingenuous, to put it mildly.
The current DOJ policy against indicting a sitting president is grounded on the idea that such an indictment would do too much damage to the country. According to the man who authored that policy, the only way to solve that problem is to render that president a private citizen by impeaching him and removing him from office in short order. But if Congress isn’t willing to hold up its end of the bargain, then you have at least the appearance of, in Nixon’s words, a “gap in the law.”
Such a situation is untenable in any society that purports to be based on the rule of law. It also risks irreparable damage to America’s reputation abroad; more than a few of my acquaintances outside this country have wondered why Trump hasn’t been arrested.
I have been of the mind for some time that the sheer egregiousness of Trump’s alleged misdeeds in office was such that there was at least one federal criminal investigation well underway, in addition to the state-level investigations being led by New York Attorney General Letitia James and Fulton County, Georgia District Attorney Fani Willis. Any doubt I had of this was put to rest in February by former federal prosecutor Glenn Kirschner. On his podcast, Justice Matters, Kirschner opined that he believed we would see indictments of Trump and much of his inner circle because “there are too many dedicated people at the Department of Justice not to ...” Earlier, he’d cautioned that the DOJ’s inclination to conduct “long exhaustive proactive investigations with no deadlines” is a big reason we haven’t seen the indictments roll out yet.
Kirschner spent his entire 24-year career as an assistant U. S. Attorney for the District of Columbia, the second-most prestigious U. S. Attorney’s Office in the country, behind the Southern District of New York. He knows what it takes to conduct “long exhaustive proactive investigations” of which he spoke. And when the target of that investigation is a former president with a very cult-like following, it’s even more important to make sure that case is ironclad.
We got a reminder of just how ponderous this process is later in February when CNN revealed that the House Select Committee investigating the Jan. 6 insurrection was being snarled by Trump’s pesky habit of using other people’s phones. According to multiple sources in the Trump White House, Trump was so paranoid about people listening in on his calls that he frequently confiscated the cell phones of aides and Secret Service agents.
These accounts appear to have been corroborated by Trump’s third White House press secretary, Stephanie Grisham. In an interview with CNN’s New Day, Grisham revealed that Trump was known to commandeer the phones of anyone who happened to be in the same room.
This makes reconstructing the events of that horrible day even more difficult. If Trump was using other people’s phones, anyone investigating the events leading up to the pro-Trump hordes swarming into the Capitol would have to wade through the phone records of innocent third parties and try to separate legitimate calls from not-so-legitimate calls. If the House investigators were stymied by this, the odds are pretty good that federal prosecutors are as well.
The need to wade through this evidence would make building a solid case against Trump difficult, even without the compressed time frame to bring an indictment before the statute of limitations runs out. Nadler, the chairman of the House Judiciary Committee and the de facto second-in-command during Trump’s first impeachment, had this in mind when he wrote the No President is Above the Law Act of 2020. This bill would “toll,” or pause, the statute of limitations for any federal crimes committed by a sitting president before or during his time in office. The Democrats on the House Judiciary Committee had a simple rationale for this bill: to prevent a president from using his office “to avoid legal consequences.”
The Republicans on the Judiciary Committee, led by Rep. Jim Jordan of Ohio, scoffed that this bill was a solution in search of a problem. However, they claimed that its premise was undermined by Mueller’s report, since any claims that Trump colluded with Russia were “disproven” by Mueller. They ignore that Mueller explicitly stated that his report did not exonerate Trump. Moreover, are the House Republicans okay with creating even the appearance that you can be above the law just by virtue of being president?
Much of Nadler’s bill was folded into the Protecting Our Democracy Act, authored by Schiff, the chairman of the House Intelligence Committee and the lead manager during Trump’s first impeachment. In an interview with NPR’s Mary Louise Kelly, Schiff heralded the bill as an effort to codify “what had been, we thought, inviolate norms of behavior in office.” However, Schiff’s act sets up new guardrails, including the effective pause of the statute of limitations for sitting presidents as proposed by Nadler.
The Protecting Our Democracy Act passed the House in December, with Kinzinger being the only Republican to support it. The Senate has yet to take up the bill as of this writing, which, to put it mildly, is unfortunate. The Republicans had a chance to make up for their failure to uphold their oaths of office during Trump’s two impeachments. So far, they’re squandering it.
This cannot stand.
Even if the clock runs out on any effort to make Trump answer for his misdeeds in federal court, Nadler and Schiff have crafted what is arguably the best mechanism to prevent another president from following his example. Call your senators and tell them to support the Protect Our Democracy Act. We cannot allow even the appearance of a president being above the law.