Whatever else the president may have done over the years to attract the attention of law enforcement (and there’s a lot), we know this – he obstructed justice by attempting to subvert an FBI investigation. We can say that with confidence because he did in public, on Twitter, in a series of clumsy admissions. A prosecutor is actively building that case, along with perhaps others. The president’s goofy lawyers, in recognition of the apparent inevitability of an indictment, have already abandoned a hopeless defense on the facts. Instead, they’ve begun to attack the legitimacy of the law itself, a warning of the dangerous terrain ahead.
Lots of things may happen over the coming months, but one thing seems increasingly likely. For the first time in our history a president will face criminal prosecution. We are a nation of laws, but there is no settled law governing the process about to unfold.
Two legal ambiguities are likely to make a prosecution of our chief executive very dangerous. Does the Constitution permit a prosecution of a sitting president? If so, by what means can he be served or arrested?
The first question has been persuasively resolved in a brief by law professor Ronald Rotunda in 1998, though it has never been litigated. Rotunda’s position is consistent with reasoning that was taking shape in the legal community during the Watergate standoff. The Constitution contains specific, explicit, though limited immunities from prosecution for members of Congress. These measures were presumably put in place to protect the legislative branch from harassment by the Executive. No such protections for the president were included in the Constitution.
Rotunda wrote an op-ed this year explaining some potential limits on Mueller’s prosecutorial authority. Those limits are technical and political. A court might uphold those limits, but they probably wouldn’t. And it would a terrible mistake for Mueller to simply assume that such limits applied without testing them in litigation. These limits are highly unlikely to deter a prosecutor from obtaining an indictment. Federal courts would almost certainly allow a criminal prosecution of the president to proceed.
That brings us to the second, much thornier question. How do you arrest the president?
In a conventional prosecution, an indictment would be served through one of two methods, an arrest or the issuance of a summons to appear in court on a set date. White collar defendants are sometimes allowed to surrender themselves for arrest and booking through a process negotiated between US Attorneys and the defendant’s counsel. Cooperation of any kind seems unlikely in this case, so attempting a negotiated surrender makes little sense.
Arrest is a pretty dramatic move. Given the legal ambiguities and political sensitivities, it seems more likely that Mueller would seek to notify the president of an indictment via a summons, rather than arrest. But how would that summons be served on a recalcitrant president, determined to delegitimize the entire process?
A summons may be served by a federal marshal, but can also be served by anyone authorized to serve notice in federal civil cases. What happens when a federal marshal shows up at the White House or Trump Tower to serve an indictment on the president and the president refuses to admit them? Does the Secret Service let them in? If he engages in a move as simple as locking the door of a room he’s in, does someone break it down? If so, who has that authority?
Under ordinary, daily operations, the president and his staff informs the Secret Service who should be granted access to the president. However, at a formal, legal level, agents do not answer to the president. The Secret Service operates under rules laid out in federal statutes.
It is a crime for anyone to obstruct a federal officer in the commission of his duties. In principle, this applies to a Secret Service agent as much as to anyone else. Theoretically, a Secret Service agent should be expected to allow a federal marshal access to serve a summons on the president. But would they?
Picture this scenario. An indictment of the president is publicly issued. The White House is notified that marshals are coming to deliver a summons to the president. The president insists that the indictment is illegal, claiming immunity. He refuses to submit to service of a summons and instructs his Secret Service security detail to bar the marshals from the White House or Trump Tower (or whatever golf course he’s wasting time on). What happens next?
The Director of the Secret Service takes orders from the Secretary of Homeland Security. If the Secretary of Homeland Security decided to comply with the law then this first obstacle would be relatively manageable. She would issue orders for the Secret Service to let the summons be served on the president. She might even work with the prosecutor to have the Secret Service serve the summons themselves (an authority they possess).
Who heads Homeland Security? When John Kelly left Homeland Security his position was filled by an interim Secretary, Elaine Duke. Unlike many other senior officials in this administration, Duke is an ordinary, sane, career civil servant. Trump has nominated Kirstjen Nielsen as Kelly’s formal replacement, pending Senate approval. Nielsen is also serious figure, with a reputation for organization, rigor and discipline. Nielson previously held a position in the Trump White House, but her service there seems more a function of her long relationship with Kelly than of an attachment to Trump. Neither of these women seem likely to obstruct federal agents to protect Donald Trump.
If the Secretary of Homeland Security cooperates, then service of a summons should proceed smoothly. If she cites some bullshit legal objection and refuses to cooperate, then we’ll have an ugly Constitutional crisis on our hands.
Even if the Department of Homeland Security follows the law, one more potential complication lurks. At different times the president has relied on private security for himself and his family, even after assuming office. It is unclear what role these figures continue to play. If the president used them to block access by the Secret Service or marshals, it is unclear how that standoff might be resolved.
Of course, all of this could be avoided if Congress would conduct a serious investigation and move toward impeachment. If they haven’t done that already, they aren’t going to do it, even after an indictment. Republicans will normalize anything their cult leader does. They are a bigger problem that Trump himself. Congress will continue to fail to serve its Constitutional role in this mess.
One angle in this case might spare us from an open-ended political and military crisis. Trump may have some political levers to obstruct his own prosecution, but his daughter and son-in-law don’t. Like perjury and conspiracy, obstruction of justice is only as serious as the justice which was obstructed. An investigation into Trump’s effort to halt the FBI investigation will have to dig into the subject matter of that original investigation. The family has a long history of shady deals with Russian underworld figures. Those criminal financial dealings are where the collusion with Russian intelligence probably originated.
There’s a good chance that indictments start with close family members on grounds far-seedier and more damning than election meddling. These indictments would likely be issued before Mueller unveils the obstruction charges against Trump. Even with his pardon power, Trump likely couldn’t protect those close to him from the consequences of their crimes.
In other words, there’s a chance that the family might just abscond before we’re forced to solve the logistical and Constitutional puzzles around arresting the president. If they flee to safety overseas we might be spared a crisis that could erupt into a war. If they don’t leave, and Trump continues to deny the legitimacy of the legal process, then his indictment and prosecution will resolve nothing. Someone in a powerful position will, at some point, have to take decisive action to remove him from power. What that looks like is anyone’s guess, but the Constitution and our laws offer no guidance.
There is no settled, legal route to a resolution of the crisis Trump and his idiot voters have foisted on our republic. If Mueller doesn’t blink and Trump doesn’t flee, we will likely be forced to resolve this power struggle not in law, but in the realm of politics and military force. It’s a scenario that hasn’t played out on our soil since the Civil War; one with no predictable outcome.