There seems to be some confusion about the powers that Special Counsel Bob Mueller has when it comes to the president. The truth of the matter is that Mueller cannot indict President Trump while he is president. Legally, the proper remedy for presidential misconduct is impeachment, not indictment.
Impeachment is a political matter, not a criminal one. A president, as well as any other federal official, can be impeached for “high Crimes and Misdemeanors” (Art. II, Sec. 4). These terms do not refer to a breach of criminal law but to a betrayal or misuse of political authority. They refer to a betrayal of public trust. Some of these betrayals of public trust may also involve violations of criminal law, but it is certainly possible for a federal official to be impeached for actions that, while they represent political misdeeds, do not represent criminal misdeeds.
The one Supreme Court justice who has ever been impeached, Samuel P. Chase, was impeached in 1804 for essentially what amounted to judicial activism: refusing to dismiss plainly biased jurors, improperly limiting defense witnesses, and using his position on the bench to press a political agenda rather than apply the law. Such actions are not a violation of criminal law, but without a doubt represent “high crimes” against the public trust and the duties of judicial office. (Chase was acquitted by the Senate.)
Articles of impeachment in a political trial are roughly parallel to an indictment in a criminal trial. They list the political offenses for which the president (or other “civil officers,” as the case may be) is on trial. Articles of impeachment are filed in the House, which has “the sole Power of Impeachment” (Art. I, Sec. 2).
If a simple majority of the House votes to impeach the president, the subsequent trial is conducted by the Senate which has “the sole Power to try all Impeachments” (Art. I, Sec. 3). Conviction requires a supermajority of “two-thirds of the Members present,” and the penalty if convicted is not incarceration but removal from office. In fact, that is the only penalty the Senate can impose. “Judgement…shall not extend further than to removal from office.”
However, if a president’s misdeeds are not just political in nature but criminal as well, he can be subject to prosecution for these crimes, but only after (not before) he is removed from office. “… [T]he party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.” Holding him accountable for those actions at that point would fall to the criminal justice system, not to Congress, whose job would be finished once the vote on articles of impeachment is taken.
While Mueller might well recommend that the House pursue articles of impeachment against the president, based on his investigation, he is prohibited by the Constitution from indicting or prosecuting the president until he has been removed from office.
Thus far, Bob Mueller has not identified a single statute that the president is supposed to have violated. “Collusion,” as sinister as the word sounds, is not a crime. And “obstruction of justice” would be almost impossible to prove since the actions that have triggered this charge – the firing of James Comey, for instance – are well within the president’s constitutional powers as the head of the executive branch. To impeach a president for exercising his constitutional authority is a stretch under any circumstances.
A plain reading of the Constitution would indicate that the president cannot be tried in criminal court unless he is first impeached, convicted, and removed from office. The reason for this restriction is obvious – if a president could be indicted in a regular court of law by any aggressive, headline-hungry prosecutor, the president would spend 24 hours of every day in court defending himself against frivolous charges and be unable to discharge the duties of his office.
Unless President Trump is removed from office through the impeachment process, Mueller can’t touch him. And the chances of an impeachment effort getting anywhere are slim and none. Even though the law requires that a special prosecutor can only be appointed to investigate a specific crime (or crimes), no crime that the president supposedly committed has ever been identified, nor a statute he supposedly violated. This means that there is no legal basis whatsoever for Mueller to be investigating anybody for anything at this stage. All this represents an exceedingly fragile foundation for any move against the president.
Mueller’s investigation is not the investigation of a crime, it is an investigation in search of a crime. The chances that impeachment articles could be approved by the House, with a sizeable Republican majority, are virtually nil. And with 67 votes required in the Senate to convict, and just 49 Democrats in the upper chamber, the chances of conviction are infinitesimally small.
Bottom line: if the Constitution is followed – an admittedly big “if” – President Trump has nothing to fear. There is plenty of sound and fury, of course, but in the end, it will all signify nothing.