It’s interesting that the first 2020 Democratic presidential candidate to flatly call for impeachment of President Trump is now calling for policy changes that might make impeachment less necessary in the future. The Washington Post has the story:
Sen. Elizabeth Warren said Friday that she would seek to reverse a long-standing Department of Justice policy that prevents the indictment of a sitting president and push Congress to amend the law to make it clear that presidents can be charged with crimes.
The first proposed action would directly undercut the Executive branch policy that kept Robert Mueller — in his own eyes, at least — from even thinking about recommending criminal charges against Donald Trump for the obstruction of justice he clearly saw in the evidence his investigation gathered:
Warren (D-Mass.) pledged that if elected president, she would appoint Justice officials who would reverse the department’s policy, which was formulated in two opinions during the administrations of Richard M. Nixon and Bill Clinton, when both were facing crises.
The opinions, which have not been tested in the courts, concluded that initiating criminal proceedings against a sitting president would interfere with the unique constitutional responsibilities of the nation’s chief executive.
“No matter what he may think, Donald Trump is not a King,” Warren said. “No President is. And our democracy only works if everyone can be held accountable.”
Beyond that, Warren called two changes in federal law to clarify the exposure of the president to criminal law:
One, she said, would make clear that it’s the intent of Congress that the Justice Department can indict the president. Warren said she would also like to see obstruction of justice statutes amended to make it explicit that the president can be indicted on a charge of abusing the powers of the office.
As the New York Times reported, Warren did tout her proposals as a way to provide alternatives to impeachment in cases of serious presidential misconduct:
“[I]mpeachment isn’t supposed to be the only way that a President can be held accountable for committing a crime,” she said. “Congress should make it clear that Presidents can be indicted for criminal activity, including obstruction of justice. And when I’m President, I’ll appoint Justice Department officials who will reverse flawed policies so no President is shielded from criminal accountability.”
Whether or not Warren gets a chance to pursue these initiatives as president, her proposals are a reminder that the Department of Justice policies that hamstrung Mueller didn’t come down from Mount Sinai on stone tablets. Yes, they are rooted in interpretations of the constitutional separation of powers and the president’s explicit and implicit responsibilities, but no court has ever tested these interpretations. It will be interesting to see if those who deplore impeachment as an extreme remedy in Trump’s case are willing to look at alternatives like Warren’s — or whether they indeed think winning 270 electoral votes places a politician quite literally above the law.