Former Watergate Counsel Argues Trump Can Be Indicted

The principal argument in favor of presidential immunity is that the president, as chief executive, is the officer ultimately responsible to “take care that the laws be faithfully executed.” Therefore, for the government to pursue a criminal indictment of the president would be like the president prosecuting himself.

The argument is misguided. In England, it used to be said that “the king can do no wrong.” Indeed, when the Colonies declared independence, English prosecutions were in the name of the king — Rex v. Smith, for example. But the Founders rejected the tradition of royal supremacy. In writing the Constitution, they created a limited immunity for members of Congress protecting them against — but only against — prosecution for “speeches or debates” during congressional proceedings. By contrast, the Constitution is silent on any comparable immunity for the president.

In fact, in the Nixon tapes case, the Supreme Court rejected essentially the same point that Trump supporters are making. There Nixon argued that, as chief executive overseeing enforcement of the federal laws, he was not subject to demands by the special prosecutor that the president produce evidence sought by the prosecutor. The court unanimously upheld the fundamental constitutional principle that no person is above the law, and even the president is subject to the ordinary obligations and prohibitions of federal law applicable to everyone else. The caption of the case says it all: United States v. Richard M. Nixon, President of the United States.



https://www.washingtonpost.com/opinions/yes-a-president-can-be-indicted-the-nixon-tapes-case-proves-it/2017/12/07/26339e32-db4d-11e7-a841-2066faf731ef_story.html?utm_term=.e9a527e59fed