This week, across the country, students are walking into law schools ready to begin their study of the law. It’s a sight I always cherished as a law professor, getting excited to explain the virtues of our American system. I’d often begin with this line from a Supreme Court opinion: “It is the proud boast of our democracy that we have ‘a government of laws and not of men.'” The line is from Justice Antonin Scalia, and it always brought a knot in my throat. It’s why I’ve always described myself as an American exceptionalist.
Yet this year I wondered whether I’d have the conviction to begin the same way. I was worried about a Supreme Court that on a 5-4 vote upheld President Trump’s “travel” ban, despite all the things Trump had said to show it was truly about targeting Islam. (Disclosure: I argued the case.) I was worried about a House of Representatives that took no meaningful notice of Russian operations in the 2016 election (and, even worse, a House committee that interfered with the investigation). I was worried about a president who doled out pardons to the likes of Joe Arpaio and Dinesh D’Souza, convicts of bad faith whose pardons served no purpose except to please the base. And I was worried about a social media ecosystem, driven by bots and extremists, that threatened the discourse that our Founders prized.
But this week was, at the very least, a reprieve. In two courtrooms, one in New York and the other in Virginia, our system began to right itself. In one, the president’s former campaign chairman, Paul Manafort, was found guilty of several felonies. In the other, the president’s former lawyer, Michael Cohen, pleaded guilty to several felonies and admitted that the illegal campaign contributions he made (effectively hush money to Stormy Daniels) were done under Donald Trump’s direction.
Neither development can be easily put into a box. For all of Trump’s attacks on the office of special counsel Robert Mueller, it was 12 jurors in a box, not uninformed bluster or 20 million bots who decide the course of events in America. And for Cohen, the plea and accompanying legal documents marked the first time since Richard Nixon that a president of the United States was essentially named an unindicted co-conspirator. This is the American system of checks and balances hard at work – taking the meticulous efforts of prosecutors and testing them in the crucible of the criminal justice system. And as a result, the American people now know some of what Cohen and Manafort knew.
But the rule of law is about more than simple transparency; it demands justice, too. We have sworn, solemn statements that show the president almost certainly committed at least one felony. Trump’s lawyers are quick to claim that a sitting president cannot be indicted. That view doesn’t seem to have convinced even his own legal team, as they keep saying they don’t want the president to testify before Mueller because of a “perjury trap.” If there is no such thing as perjury for a sitting president, the claim’s a bit weird. Likely, Trump’s lawyers know the “no indictment” claim isn’t nearly as ironclad as they make it out to be. That’s why they resort to claptrap like “Presidents cannot by definition obstruct Justice.” Absurd. The Declaration of Independence itself accused King George III of having “obstructed the Administration of Justice.” The Trump view would elevate the presidency above the 1776 British king and immunize Trump from one of the offenses that caused the American Revolution in the first place. Trump can’t cite actual law or history to support him, with the exception of Nixon’s widely mocked utterance that “when the president does it, that means that it is not illegal.”
There’s another reason transparency isn’t sufficient. The view that a sitting president can’t be indicted presupposes that he must go through the impeachment process first. That sequence makes sense if Congress is launching an investigation and bringing the crucial facts to light. But it makes absolutely no sense in a world in which members of Congress have behaved like ostriches and refused to see what is in front of their eyes. Without a real impeachment investigation, the “can’t indict a sitting president” view amounts to nothing more than an end run around the rule of law. It vests a president, due to party politics, with the full powers of Article II of our Constitution – from Supreme Court nominations to waging war – even though there are credible grounds to believe he has committed a felony.
Sure, our Founders prized general executive control over prosecution functions. But they valued accountability to the rule of law far above anything else. Our Founders would have detested a system that gave a president the ability to stay in the job by pleasing (or offering favors to) members of Congress, and they would have detested a system that let Congress shut down an investigation into presidential wrongdoing. A president can’t simply shoot someone on Fifth Avenue, as Trump joked during the campaign, and then convince or induce his friends in Congress to protect him from all investigation, legislative and criminal. The essence of the rule of law is transparency and accountability.
This duty to protect the rule of law transcends party, and it transcends the loyalties that government officials owe to their superiors. I am a proud believer in government service, but if individuals at the White House counsel’s office are asked, for example, to help facilitate pardons to individuals with knowledge about the investigations (or to help pardon the president himself), they are betraying their oath to the Constitution. They must refuse. Such actions are inconsistent with the accountability and transparency our Founders triumphed. The same goes for members of Congress who interfere with the investigation of the president or who refuse – on partisan or self-interested political grounds – to entertain impeachment if the facts warrant it.
– Katyal is the former acting solicitor general of the United States and presently serves as a partner at Hogan Lovells and the Saunders professor of national security law at Georgetown University.