“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

—The Constitution, Article 1, Section 3

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If you’re like me, you probably don’t really know why it is that, effectively, nothing can be done to Tr-mp, in terms of trying him in court, for committing any type of federal crime like obstructing justice, should the Special Counsel point in that direction some sweet day. Well, we’re in luck. Bob Bauer, courtesy of the Lawfare blog, has come to help dissipate our ignorance and offer us the faintest bit of hope that something can be done. I warn you, though, it is a very faint hope and this is not a short exercise.

But before I get to Bauer’s post, allow me to quote something, something that perhaps we’ve all grown too comfortable with, that should absolutely stun us. The quote is from an article by Jonathan Rauch (“Impeaching Tr-mp is a Heavy Lift“), a senior fellow at the Brookings Institution, who argues that so long as Tr-mp remains popular among Republicans, there isn’t much hope of an impeachment:

Might some decisive event—Tr-mp’s own version of the smoking-gun tape—kick the Republican props out from under Tr-mp? Maybe. But Tr-mp’s strategy is antithetical to Nixon’s. Nixon maintained a façade of probity and normalcy. Trump doesn’t bother. He has publicly asked the Russians to tamper with U.S. elections, publicly helped cover for their having done so, and then publicly acknowledged firing the FBI director for investigating the matter. His weaponization of flagrance, as I have argued elsewhere, draws his supporters into complicity. Given that his Republican approval has stayed in the eighties, the GOP base appears to have priced in, so to speak, his deviant and erratic behavior.

We all need to take time to let that sink in. Especially what Rauch said about Tr-mp not bothering to maintain even a facade of honesty or normalcy:

He has publicly asked the Russians to tamper with U.S. elections, publicly helped cover for their having done so, and then publicly acknowledged firing the FBI director for investigating the matter.

That triad of wrongdoing in and of itself ought to be enough to rid us of Tr-mp. But politics makes that almost impossible, so long as Democrats a) don’t have a majority in the House (necessary for initiating an impeachment proceeding) and b) don’t control two-thirds of the Senate (necessary for a conviction). So, with impeachment a distant possibility at this point in time, we turn back to the law and to Bob Bauer’s post on Lawfare.

Bauer, who was the White House Counsel when we had a real president named Obama, titled his piece, “A Disabled Executive: The Special Counsel Investigation and Presidential Immunities.” He discussed the famous United States v. Nixon, the case from 1974 in which the Supreme Court, in an 8-0 shellacking, told Nixon to fork over his secretly recorded tapes and other material. That decision effectively put some serious restrictions on any president’s power to claim “executive privilege” and withhold subpoenaed evidence relevant to a judicial proceeding. In other words, the Court found that the president can’t hide behind a claim of privilege to shield himself or others from their accountability to the law. This is the idea, we all have heard, that “the president is not above the law.”

Well, he is. Sort of. But Bob Bauer has a fix in mind.

Bauer sets the contemporary scene regarding the Special Counsel’s investigation and its obvious negative effects on the current Executive Branch, and asks a couple of questions that demand answers:

The investigation is beginning to consume the Trump Administration. Most notably, the president seems to have little capacity for managing these pressures. As suggested by his inability to stay off Twitter, he is evidently not one to “compartmentalize” sufficiently to push the inquiry to one side while carrying on regular business. Special Counsel Robert Mueller is barely into his task and so one might ask: what happens when the investigation begins to accelerate and, worse, if indictment becomes a possibility?

It is at this point that the long-standing constitutional question, so far unaddressed by any court, is again raised: do the strains on a presidency under investigation require the conclusion that the president cannot be indicted while in office?

It’s important to emphasize the fact Bauer pointed out: the idea that POTUS cannot be indicted while he’s still in office has never been tested in the courts. Never. In the Nixon case, the Watergate grand jury, while indicting other White House officials for their part in the burglary that began it all, did not indict Nixon himself. He was, famously, labeled an “unindicted co-conspirator,” so as to avoid that “long-standing constitutional question” Bauer referenced. And, as we all know, Nixon boot-scooted out of the White House soon after the Supreme Court took his executive privilege away. So, the can-POTUS-be-indicted question is still open.

And Bauer helpfully points us to two crucially influential opinions on the matter issued by the Justice Department’s Office of Legal Counsel (OLC). The first opinion, issued in 1973, took the position that a sitting president cannot be indicted. And the other, issued in 2000, affirmed that original OLC conclusion. It is important to keep in mind that these opinions, as influential as they are, were written by Justice Department lawyers, not judges in a court case. Bauer summarized the reasoning supporting the OLC conclusion:

OLC has taken the position that while the Constitution does not explicitly provide for immunity from indictment or prosecution, and the record on the Founders’ views of the question is inconclusive, the constitutional role of the president requires that he or she be afforded temporary immunity. Indictment and prosecution would have a “dramatically destabilizing effect” on the president’s capacity to discharge his or her duties. The executive’s energies would be diverted into the “substantial preparation” needed for his legal defense. The mere stigma and opprobrium of indictment, and possibly conviction, would result in “undermining the president’s leadership and efficacy both home and abroad.”

The 2000 opinion landed hard on conclusion that “given the potentially momentous political consequences for the Nation at stake, there is a fundamental, structural incompatibility between the ordinary application of the criminal process and the Office of the President.” Of course, delay in either indictment or trial until a term ended would be costly to the administration of justice: but “while significant, [they] are not controlling. In the case of clear and serious criminal wrongdoing, Congress can act to impeach, and this outcome is more consistent with democratic values than “shifting an awesome power to unelected persons lacking an explicit constitutional role vis-à-vis the President.”

Bauer attacks the “weakness” of this position by pointing out how little difference, in terms of disruption, there is—in Tr-mp’s case—between what may be the late stages of the process and the current investigatory stage:

From the beginning it was unclear how the OLC’s reasoning distinguished between indictments and prosecutions, on the one hand, and investigations, on the other. The institution of a serious investigation into presidential wrongdoing has been sufficient to lead to” mass hysteria” in the West Wing. It has clearly and heavily burdened the president—one need only read his tweets—and disrupted normal business and the recruitment of personnel for key positions. So, while few doubt that the president is subject to investigation, it is hard to see how these disruptions can be easily distinguished from those associated with indictment. The difference is one of degree, not of kind, and as the Nixon experience established, those differences are indeed fine.

The “distractions will worsen,” Bauer says, as the “current investigation continues.” There will be interviews, document requests, lawyers upon lawyers hired by witnesses, and inevitable “leaks.” Bauer argues:

The more serious and far-reaching the investigation becomes, the greater will be disruption. By the time of his resignation, President Nixon had not been indicted, but his capacity for governance had been all but extinguished.

Here Bauer, for the sake of argument, entertains a dubious idea related to the claim that there is a meaningful distinction, in terms of disruption in the Executive Branch, between indictments and investigations:

It is possible, of course, to believe that for just these reasons OLC did not go far enough, and that it should have clearly extended temporary immunity to the investigative stage.

Now, think about that. The OLC could have extended “temporary immunity” to a president that covered an investigation of wrongdoing. Merely investigating whether a crime was committed would then have to wait until POTUS was out of office. And the logic of the OLC reasoning, as Bauer points out, leads in that direction. Fortunately, the authors of those two OLC opinions were not imprisoned by their own logic:

The drafters in 1973 and 2000 declined to take this next step. Doubtless they were constrained by a powerful democratic norm, reflected in the Supreme Court’s pointed rejection in United States v. Nixon of any suggestion that the president, as the head of a unitary executive branch, is somehow “above the law.”

That “democratic norm,” that POTUS is, like the rest of us, subject to the law, has “only gained force” since the 1973 OLC opinion and that famous and suddenly relevant 1974 Court decision, Bauer says. Even though there is still a judicially unanswered constitutional question lingering around about whether a sitting president can be indicted, tried, and possibly convicted, we still have in force the minimalist norm that a president can at least be investigated. But Bauer is not content to leave it there. He still has serious problems with the OLC logic that indictments and trials and prosecutions—but not investigations—would have a “’dramatically destabilizing effect’ on the president’s capacity to discharge his or her duties.” Bauer focused on that 2000 OLC opinion:

It tried gamely, but more or less in passing, to show that investigations can be managed without undue disruption. In a footnote, it noted that a grand jury could still “collect” and “preserve” evidence, available for use once the president has left office. The picture it presented is that of the grand jury working quietly in the background. More realistic is what we had in the Nixon era and may be seeing develop today: a full-fledged investigation from within the executive branch, by special counsel dedicated to this purpose. It is not a question of a grand jury collecting and preserving but of the Special Counsel investigating. The process is active, not passive….

A major inquiry at full boil is most often an indication of the seriousness of the potential charges, and yet it is here—where the public interest in a presidency accountable to law is keenest—that the OLC’s concern with disruption is most obviously triggered. By a strange twist of constitutional logic, the president under investigation for the most serious wrongdoing would then have the most compelling claim to immunity.

Bauer then criticizes the OLC for not seriously engaging “the question of how temporary immunity from indictment or prosecution can be reconciled with the due administration of justice.” He writes:

For example, it included the president’s exposure to the stigma of a criminal charge among the “dramatically destabilizing effects” of an indictment. Of course, unresolved questions of criminal misconduct also cast shadows on a presidency, as the Nixon saga showed. The opinion did not explain how the president’s credibility is enhanced by charges left hanging and defended only by a claim of immunity. It might be just as persuasively argued that the president who engages with the criminal justice process does more honor to the office and invites closer consideration of the merits of his self-defense. “I did no wrong, and here is why” has a more presidential ring and better serves the rule of law than “You can’t get me.”

We can all see, by his behavior, that Tr-mp isn’t interested in any high-minded notion like “honor to the office.” And we can all imagine, at some future time, him shamelessly utilizing the “You can’t get me” defense. Tr-mp isn’t concerned with anything fundamentally essential to a stable democracy like the concept of “the due administration of justice.” But Bauer is. He criticized the OLC opinion for falling back,

on a comforting image of a grand jury operating silently and (somehow) mostly out of sight and out of the way.

But that is not how it goes with high-profile, high-stakes investigations. We have them or we don’t: there is no quiet, non-disruptive version. And if we have them, accepting the disruptions they entail, then it is difficult to argue that they cannot be brought to one possible conclusion, if justified by the evidence: indictment. If a president can be investigated, then, it seems, a president can be indicted; if not in the second case, then not in either case, because it cannot be said that the government in the throes of a major investigation is measurably or reliably safer from severe “disruption” and massive loss of presidential credibility. The better, more internally consistent view in line with democratic “rule of law” norms is that the president is subject to investigation and, if the evidence supports it, indictment.

Bauer discusses the truth that “the president could use his executive authority to thwart an investigation,” through dismissing successive prosecutors until he finds an individual with Marco Rubio’s or Ted Cruz’s compromised blood running through his or her veins. But Bauer has faith, too much in my opinion, that in such a case “Congress would intervene via the impeachment process to restoring the ‘rule of law.'” He says, with way too much confidence given what we have seen from Paul Ryan and other Republican leaders:

It is in constitutional theory only that a president may order an end to an investigation directed against him. In practice, he will fail.

I have a feeling we will find out if Bauer is right. In the mean time, Bauer offers us a novel solution (at least it was to me) to the problem of what to do, should his theory prevail some day that there is no difference, in terms of disruption, between indictments and investigations:

If a president is not, then, immune from investigation or indictment, the “dramatically destabilizing effects” on government may be addressed in one of three ways. The president could resign. Congress could move to impeachment. Also available  is the 25^th Amendment, which permits a president to temporarily vacate the office while fighting the indictment and standing trial—perhaps, in the thick of an investigation, while fending off indictment.

The 2000 opinion was equivocal in its treatment of the 25^th Amendment, particularly as an answer to the possible incarceration of a president following conviction. But it also conceded that “the amendment’s terms ‘unable’ and ‘inability’ were not . . . narrowly defined, apparently out of a recognition that situations of inability might take various forms not neatly falling into categories of physical or mental illness.”

I find that a rather stunning argument. The president should be subject to investigation, indictment, and possible prosecution, and if the process proves so disruptive that he can’t adequately perform his duties, there is a 25th Amendment remedy. Bauer’s conclusion:

In a case where, as of now, neither impeachment nor resignation is probable, the 25^thAmendment supplies more of an answer than OLC would credit to the problem of an incapacitated presidency. It is also more convincing than temporary immunity from indictment or prosecution that is grounded in dubious reasoning about the implications of the “constitutional structure” and that, if taken to its logical conclusion, would also insulate a president from investigation into serious criminal wrongdoing.

In other words, as it stands right now, using only the reasoning of Justice Department lawyers from long ago, Tr-mp is essentially beyond the reach of the law and we have little hope of a House impeachment and little hope of a Senate conviction. And the truth is, although Bauer’s idea is solid and soundly reasoned, we also have little hope that anyone who matters will pay the slightest bit of attention to it.