It is perhaps too early to predict the fate of any of the 23 Democratic presidential candidates but some who were considered potential frontrunners appear to be struggling. Among them, Massachusetts Senator Elizabeth Warren, who is getting so desperate that she recently pledged – were she to become president – to have the Department of Justice’s Office of Legal Counsel (OLC) abandon its long-standing opinion that a sitting president cannot be indicted or criminally prosecuted.
This was, of course, a shamefully empty promise; a way to win over the most rabid Trump-haters among her party’s primary voters. There is little chance Warren will ever be president and even less chance that she would have the OLC opinion overturned.
The ridiculousness of Warren’s pledge is undeniable: She was clearly referring to prosecution of President Donald Trump but, if Warren became president, then Trump would no longer be president and the OLC memorandum on the matter would be irrelevant. Is Warren really going to open up herself or future Democratic presidents to the possibility of being indicted? No, of course not.
Why a Sitting President Cannot Be Indicted
Why did the OLC come to such a conclusion in the first place? Is it not true that nobody is above the law? What of the constitutionality of the rule?
In 1973, the OLC determined that a sitting president cannot be indicted or criminally charged because to do so “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” In 2000, the OLC reviewed that opinion and decided that it should still hold.
Certainly, the Constitution implies that a sitting president cannot be charged with a crime: It provides a remedy for presidential wrongdoing and that remedy is, of course, impeachment. If the Congress determines that a president has committed “Treason, Bribery, or other high Crimes and Misdemeanors,” that a president can be removed from office and subsequently face criminal action, so it is not true to say that the OLC opinion holds a president above the law.
All Equal Before the Law?
What neither Warren nor any other Democrat is willing to admit is that President Trump’s opponents want to hold him to a different standard than anybody else. Hillary Clinton very clearly obstructed justice by not turning over all her emails, yet not one Democrat suggested she should have been indicted. So, this is not really about the law; it is about using the law – bending it, even – to go after a president the Democrats despise.
On Wednesday, May 29, Nancy Pelosi (D-CA) addressed former special counsel Robert Mueller’s parting remarks on his report and the prospect of impeaching President Trump. Most notably, the Speaker said, during a televised talk, “[A]nd everybody believes – I’m talking on the Democratic side – that no-one is above the law, especially the president of the United States.”
It is that word “especially,” which Pelosi emphasized, that gave the game away. It would be completely acceptable to assert that no-one, including the president, is above the law, but that is not what Pelosi said. Her use of the word “especially” betrays the real feelings of Democrats. Forget the idea that everybody is supposed to be equal before the law; Democrats believe an entirely different standard of justice should be applied to Trump.
It is precisely that sentiment to which Warren is playing as she vows to abandon the OLC opinion. This is why Democratic efforts to investigate this president are a sham; the opposition party has absolutely no interest in applying fairness – Trump, they believe, is simply not deserving of it.
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