Robert S. Mueller III is right. A special prosecutor does not have the authority to indict a sitting president.
The Constitution specifies that the punishment for impeachment “shall not extend further than” removal from office and disqualification from further service. It goes on to say that a president convicted of impeachment “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” The text does not authorize an indictment before Congress removes a president from the White House.
That approach is common sense. Defending against an indictment would be a time-consuming business, diverting attention away from the countless matters pressing on a president’s attention. It is tempting, given President Trump’s erratic behavior, to ignore the text’s express limitation and push for legal action against him. But the Constitution is designed for the long haul, and should not be bent out of shape by the pressures of the moment. If Trump were indicted, the action would serve as a precedent for decades to come.
So, if indictment is premature, what should be the next step?
In the wake of Mueller’s statement, calls for impeachment are certain to increase. But it’s crucial to recognize that is not the only option. The House could also introduce a motion to censure the president for his abuses of power.
In the wake of Mueller’s statement, calls for impeachment are certain to increase. But it’s crucial to recognize that is not the only option.
Such formal condemnations by a single chamber of Congress have a long history, going back to the earliest years of the republic. The most compelling precedent was established in 1834 when the Senate censured President Andrew Jackson for actions remarkably similar to those we have witnessed recently.
Like Trump, Jackson was determined to undo the legislative legacy of his predecessors. In Jackson’s view, the policies pursued by the Second Bank of the United States favored the rich and were destroying the hopes of farmers and workers for success in a free-market economy.
When Jackson entered the White House in 1829, he immediately set out to kill the “monster bank.” But he confronted a big legal problem: The bank’s charter guaranteed it policymaking independence until 1837. If he followed the law, Jackson would never have a chance to rein in the bank, even if he won reelection for a second term. The obvious answer was to convince Congress to abolish it immediately.
But like Trump, Jackson resolved his dilemma by defying the law. He ordered William Duane, his secretary of the Treasury, to cripple the Second Bank of the United States by withdrawing all the government’s deposits. When Duane refused, Jackson fired him and appointed Roger Taney, who followed his boss’ command and was rewarded by being named chief justice of the U.S. Supreme Court.
The Senate responded to Taney’s assault on the bank by endorsing a motion of censure: “Resolved, [t]hat the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.”
Precisely the same words fit Trump’s recent decisions to fund a border wall and enforce his immigration policies with money explicitly appropriated by Congress for other purposes. The public record contains many other examples of lawless action — from Trump’s early exclusions of migrants from “Muslim majority” nations to his ongoing support of the Saudi war against Yemen without gaining approval from Congress, as required by the War Powers Resolution.
There is no reason to delay. The president’s contempt for Congress and the courts is demonstrated by his own words and deeds. They merit immediate censure by the House.
In contrast, impeachment would be a long, drawn-out affair with a highly uncertain outcome. It would take months for committee members to consider all the evidence, assuming that the Justice Department hands over the crucial documents. The House should press on with its investigations, of course, since it is always possible that the committee will uncover such compelling evidence that two-thirds of the Senate would agree that the president must go. Stranger things have happened.
In the meantime, however, the House debate on a censure motion would dramatize the high stakes raised by Trump’s unilateral power grabs. The culminating vote on a resolution would serve as a moment of truth, especially for genuine constitutional conservatives who have proudly committed themselves to the principles of limited government throughout their careers. Are they really prepared to say that Trump’s behavior is acceptable?
My crystal ball is no better than yours. But if a censure were to pass with significant bipartisan support, it would give hope to the many millions of Americans who have not yet given up on our system of checks and balances — and would help make its defense a central issue of the coming presidential campaign.
Censure or no, Trump is likely to be a formidable candidate in 2020. Andrew Jackson once again provides a sobering precedent. Despite the censure of his conduct, he won reelection in 1832, and even managed to convince the Senate to expunge its earlier motion from the record. Let’s hope the historical parallels stop with a censure.
Bruce Ackerman is a professor of law at Yale University and an author, most recently of “Revolutionary Constitutions.”