https://www.nytimes.com/2017/12/04/opinion/trump-impeach-constitution.html?emc=edit_th_20171205&nl=todaysheadlines&nlid=59914923
Don’t Prosecute Trump. Impeach Him. By John Yoo and Saikrishna Prakash
Dec. 4, 2017
A wayward tweet on Saturday has set off renewed accusations that President Trump obstructed justice by impeding the investigation into Russian meddling in the 2016 elections.
The known facts are too weak to support any federal prosecution, not to mention one as momentous as indicting a sitting president. But even if Mr. Trump did illegally conspire to improve relations with Russia, his critics are pursuing their quarry down the wrong path. Impeachment — not criminal prosecution — is the tool for a corrupt sitting president.
The tweet in question contained a seemingly explosive claim that sent critics of Mr. Trump into a frenzy: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!” If the president knew that Mr. Flynn had lied to Mike Pence and to the F.B.I. about his conversations with the Russian ambassador, then the president had knowingly obstructed justice when he asked the F.B.I. director James Comey on Feb. 14 to let “Flynn go” because he was a “good guy.” According to the president’s critics, Mr. Trump then escalated his obstruction by firing Mr. Comey because of the Russia inquiry.
No responsible federal prosecutor would dream of stepping into a trial court with such a weak case. This is a tweet, hardly an admission of guilt. And on Sunday, Mr. Trump’s personal attorney, John Dowd, made the case even weaker when he said that he had ghost-written the tweet.
Mr. Trump’s comments to Mr. Comey (if true — the only source for them is a memo by Mr. Comey) do not qualify as corruption, a threat or coercion as required by federal obstruction law. A mother might make the same plea for her son, or a priest for a parishioner. Asking for leniency does not constitute obstruction, regardless of whether the crime being investigated is a violation of the Logan Act, which forbids private individuals from negotiating with foreign governments, or the False Statements Act. Mr. Trump most likely fired Mr. Comey not to thwart the investigation — Mr. Trump could have just ordered it ended, which he still has not done — but because Mr. Comey refused to affirm publicly that the president was not a target.
But even if the facts rose to the level of obstruction, most legal scholars agree that prosecutors cannot bring charges against a sitting president. The Constitution imposes on the president the duty to “take care that the laws be faithfully executed,” which vests the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” Ever since the framing, presidents have enjoyed the right to drop prosecutions as a waste of resources. Indeed, this is the very theory that President Barack Obama raised when he unilaterally reduced the enforcement of the immigration laws under the Dreamers and Deferred Action for Parents of Americans programs.
Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing “a good job,” the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.
Unfortunately, the drama over the Flynn plea and White House tweeting continues to draw time and resources away from the Constitution’s one true answer for presidential corruption: impeachment and removal from office.
If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for “high crimes and misdemeanors.” Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, he said, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
The House and Senate can make their own judgments — political as well as legal — about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too — a result Mr. Trump would welcome.
Congress should not wait on a special counsel to perform its most fundamental constitutional duty of investigating and, if necessary, removing a corrupt president.
