Our Founding Fathers could not anticipate the evolution of presidential power. And it’s not uncommon for a president to be driven by a lust for power and influence. The Constitution does not spell out every possible circumstance, so it may be necessary to add clarity.
We all anticipate that the President is not above the law. But the Justice Department is allowed to make interpretations of the law based on the special circumstances surrounding the leader of the executive branch of government. But the good intentions designed for one set of circumstances may not be appropriate for all presidents.
There’s nothing in the Constitution that states that a sitting President cannot be indicted. On its face the rule appears to protect the President from lawsuits that could detract from his duties to protect and defend the Constitution. But that ruling has two flaws. If a president is investigated and not indicted, it gives the false impression that the president is not guilty regardless of the conclusions stated as a result of the investigation. Secondly, the President may break the law as many times as he or she sees fit and avoids prosecution during the presidential term(s). The President is effectively a king (during his or her term of office) subject only to impeachment and removal. Impeachment and removal has recently become so political that Senate members of the same party rarely ever vote to remove. Only crimes that are horrendous result in any negative consequences for a president during the term of office.
Alternatively, if a president can be indicted, the risk of political witch hunts is high. But that risk may be more manageable than the alternative of a lawless president. Although the head of the Justice Department is independent, he or she serves at the pleasure of the President. That substantially reduces the chances of a purely political indictment.
Discretion, on the part of the Justice Department can be influenced by historical precedents. Indiscretions on the part of the President are measured by the term ‘high crimes and misdemeanors’. The Justice Department may ask; could the alleged indiscretion be considered impeachable offense? They may also ask; if we prosecute the President for this minor offense, will this black mark on the President be too damaging to the country. Or is it best that the charge be delayed till after the presidential term or written off as a political ploy. Discretion may certainly delay prosecution of alleged crimes committed prior to the President’s candidacy or term of office. The President is not above the law but may receive a limited and defined degree of discretion.
Sentencing, subsequent to conviction, is not addressed in the Constitution. Disruption of presidential duties because of the conviction may not be in the interest of the country. A conviction of the President is not directly related to removal from office. Although sentencing may be delayed until after the presidential term expires, it may be appropriate that this black mark be placed on the record. Political power and influence is likely to be negatively influenced by a conviction. Certainly, a president with a conviction during the first term of presidency would be less likely to be reelected.
Presidential pardon power is absolute. It gives the President the power to right a perceived wrong. But it also gives the President the power to give a get-out-of-jail-free card to lawbreaking friends and relatives. That abuse of power usually has political consequences for the President and or his political party. But a major exception occurs during the lame-duck part of the presidential term. There are little or no political consequences for pardons issued during this time frame. And that allows an additional abuse of power. The President may assure a potential criminal, committing crimes for the benefit of the President, that a pardon is coming. The lame-duck pardon skirts the law and political consequences.
We may consider restricting the Presidents pardon power. Eliminating all lame-duck pardon power would still leave the President with 95% of the pardon power time frame. Our Founders did not intend that pardons would be issued for personal friends, close relatives, and business associates. Pardon power may be eliminated from a well-defined list of those close to the President without opposing the intentions of our Founders.