Robert Mueller should charge Trump with committing the one crime only a president can commit

The number of times Trump has used Twitter to corruptly influence the administration of justice is so large, it’s hardly even worth recounting this week’s Trump tweet storm. It seems that every time his little fingers fly across the keys of his iPhone, he commits another felony. This week, it was obstruction of justice and witness tampering when Trump simultaneously tweeted out an attack on his former personal attorney, Michael Cohen, and praised his former campaign adviser, Roger Stone for saying that he would “never testify against Trump.” Trump’s tweets may have crossed a legal line, according to many legal commentators, including Norman Eisen, a senior fellow at the Brookings Institution who was quoted in the Washington Post.

This article first appeared in Salon.

“It comes very close to the statutory definition of witness tampering,” Eisen told the Post. “It’s a mirror image of the first tweet, only he’s praising a witness for not cooperating with the implication of reward. We’re so used to President Trump transgressing norms in his public declarations, but he may have crossed the legal line.”

The commentariat has been obsessed for the last two days with whether or not Trump broke the law with his tweets on Monday. Op-Ed pages and cable news desks have echoed Trump’s comments on whether Mohammad bin Salman ordered the assassination of Jamal Kashoggi: Maybe he did, and maybe he didn’t!

Obstruction of justice, it turns out, is difficult to prove. Is one tweet enough? Two? Six? See what I mean? Put so much as a single toe into that rabbit hole, and you’re quickly sucked in. What about repeatedly calling the investigation by Special Counsel Robert Mueller a “witch hunt?” Did it count when Trump called for the end of the Russia investigation? How about the way Trump treated Sessions, criticizing him again and again for recusing himself, then firing him? Was it obstruction when Trump asked Comey to go easy on Michael Flynn? Remember when he asked Comey for “loyalty” over steaks one night in the White House? Just the two of them sitting there in a little private dining room in the West Wing . . . Comey demurred, and Trump fired in a few days later.

Former prosecutors and Justice Department officials like former acting solicitor general Neal Katyal pointed to Trump’s tweets as part of “a pattern by Trump to interfere with law enforcement to serve his personal end,” according to the Post. And there’s the problem. The “pattern” has been going on for almost two years now. The question is, when is enough enough?

For Republicans in congress, the answer is never. It’s been one outrage after another, and they’ve sat up there on Capitol Hill twiddling and diddling the whole time. Now that Democrats will take over the House of Representatives in January, and the votes are assumed to be there to impeach Trump, the question has shifted to the Senate, where he would be tried.

So far, no one has suggested that Republicans in the Senate have the political will or inclination to find Trump guilty, even if they are faced with the mountain of evidence that has piled up around the White House. Trump’s popularity in the Republican party remains somewhere north of 90 percent. The twiddling and diddling on Capitol Hill, it seems, will go on.

With Special Counsel Mueller, the question has become, what will happen to any report he puts out after he’s finished indicting people in Trump’s orbit? Will acting attorney general Matthew Whitaker, or William Barr, or whoever he decides to nominate move to quash it? If Mueller manages to get his report to Capitol Hill, it will face the same fate all of the evidence of Trump’s misdeeds have faced so far: even if the House impeaches Trump, Senate Republicans will never have the guts to find him guilty.

But Mueller has another option. He can bring an indictment against Trump.

I know, I know. There are two opinions by the Office of Legal Counsel in the Department of Justice that a president cannot be indicted, and it’s said that Robert Muller has always been one to “follow the rules.” But that’s just it. The “rule” against indicting a sitting president is a rule, not a law. If Mueller were to bring an indictment against Trump, it would certainly be tested in the courts by Trump’s lawyers. Opinions are mixed about what would happen if and when the case reached the Supreme Court.

I think the case would depend on what crime Mueller seeks an indictment for. There is plenty of evidence that Trump has obstructed justice. And more evidence recently emerged that the Trump campaign conspired with Russians in the manipulation of Democratic Party emails to win the election of 2016.

Emails released last week suggested that Trump campaign adviser Roger Stone and conspiracy theorist Jerome Corsi were involved as cut-outs between Julian Assange and WikiLeaks in the release of Democratic National Committee and John Podesta emails in the final days of the election campaign of 2016. But so far, no evidence has been found that Trump himself was involved in conspiring with Russians to steal the election. Not even the infamous meeting with Russians in Trump Tower has been tied irrevocably to Trump.

Two sentencing memos released Friday evening tied Trump to even more crimes.  The sentencing memo on Paul Manafort asserts that he lied repeatedly when he told prosecutors that he had not been in contact with senior officials of the Trump administration. Prosecutors cited texts, electronic documents and testimony of a Manafort colleague and other intercepts proving that Manafort had contacts with the Trump administration.

The only possible reason for such contacts would have been to coordinate their stories about what happened during the Trump campaign, which would amount to obstruction of justice. In the case of former Trump attorney Michael Cohen, the sentencing memo stated that “Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.”

“Individual-1 is of course Donald J. Trump, and the payments in question were made by Cohen to keep Trump’s affairs with two women secret. In effect, the Cohen sentencing memo is calling Trump a felon, in that he conspired with his lawyer to break the campaign financing laws to which Cohen plead guilty.

But I don’t think Mueller should bother with these crimes he committed in conspiracies with others. Rather, he should indict Trump for committing a crime only Trump, as President of the United States, can commit. He should indict Trump for violating the “Faithful Execution Clause” of the United States Constitution, which states in Article II, Section Three, that “he shall take Care that the Laws be faithfully executed.”

Printz v. United States, decided in 1997 in a challenge to the Brady Handgun Violence Protection Act, left little doubt as to who has the authority and responsibility to execute the laws of the United States: “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed," Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who with other presidential appointees), Art. II, §2.”

In Humphrey’s Executor v. United States, the Supreme Court went all the way back to Marbury v. Madison in finding that the “Take Care Clause” requires that the president obey the law. In that case, the court found that President Franklin D. Roosevelt could not arbitrarily remove a member of the Federal Trade Commission without the consent of congress and for purely political reasons.

Suffice to say, there is ample law to back up the notion that the Constitution requires the president to not only “execute” the laws, but to follow them as well. In taking numerous acts to break the law, whether by tampering with witnesses, or overtly obstructing justice, or conspiring with a foreign power to steal the election of 2016, Trump has demonstrably not “taken care that the laws be faithfully executed.”

It’s a crime only Trump, as president of the United States, can commit, because it involves a legal requirement on the president set forth not in U.S. Codes, but in the Constitution itself.

If Mueller were to indict Trump for violating this clause of the Constitution, he would not only be forcing the issue of whether a president is above the law as written for everyone else in the U.S. Code, but whether the president is subject to the law of the land as set forth in the Constitution itself. It would be an indictment for violating a law specifically written to apply to the president and no one else.

Such an indictment by Mueller would be throwing the entire matter into the lap of the Supreme Court without delay. It would be an unavoidable constitutional question, because it is a uniquely constitutional crime. It forces the issue of whether or not the laws apply to the president by making the law in question the constitution itself.

Some have said that the Founders always knew that this country would one day face the threat of a demagogue set on subverting the country by subverting its democracy. Well, they provided not one, but two ways of dealing with the situation. Not only can such a demagogue be impeached, he can be prosecuted for failing to “faithfully execute” the laws.

It’s almost as if the founders had in mind an out of control lying authoritarian monster like Donald Trump himself, isn’t it?