The guilty plea of Donald J. Trump’s former attorney, Michael Cohen, presents a significant opportunity to obtain a constitutional clarification.
Although legal scholars disagree about whether a president may, while in office, be indicted for criminal offense, and the Department of Justice regulations discourage such forays, events this week present ideal circumstances to challenge the policy and craft an exception capable of passing constitutional muster.
Cohen’s plea includes his statement under oath that under the direction of the person elected president, he directly took action (covering up the payment of hush money) to influence the outcome of the presidential election.
The campaign finance laws exist to protect the integrity of the election process.
Based on Cohen’s plea, President Trump was willing to conduct his campaign so as to corrupt that process.
That violation impugns the integrity of the office, and will forever taint the legitimacy of the Trump presidency.
If an office-holder is elected to an office by criminal means which undermine the electoral process, there is a direct and important connection (often called a “nexus”) between the crime and the outcome of the election to the office to which the theoretical “no indictment” limitation may apply.
In such cases, especially in the context of a spineless Congress unwilling to risk, by impeachment, the wrath of the vindictive president, an exception allowing the contemporaneous indictment of the sitting president should follow.
Expect the indicted president to test the constitutionally of such an indictment all the way to the Supreme Court.
Since the Supreme Court is likely to consider the issue, Congress has compelling cause not to proceed on Trump’s judicial nominations, Brett Kavanaugh foremost among them.
Submitted by E-Mail