In the New York Times, Saikrishna Prakash and John Yoo: Don’t Prosecute Trump. Impeach Him.
As to prosecution, they argue:
The Constitution imposes on the president the duty to “take care that the laws be faithfully executed,” which vests the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” Ever since the framing, presidents have enjoyed the right to drop prosecutions as a waste of resources. Indeed, this is the very theory that President Barack Obama raised when he unilaterally reduced the enforcement of the immigration laws under the Dreamers and Deferred Action for Parents of Americans programs.
Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing “a good job,” the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.
And as to impeachment:
If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for “high crimes and misdemeanors.” Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, he said, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
The House and Senate can make their own judgments — political as well as legal — about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too — a result Mr. Trump would welcome.
I think this is all correct as a matter of the Constitution’s original meaning. On the first point, it’s important to emphasize that a President most certainly could be guilty the crime of obstructing justice — for example, for threatening witnesses or destroying evidence. Professors Prakash and Yoo (and others making this argument, including President Trump’s counsel) aren’t arguing otherwise. The claim instead is that the President can’t be guilty of the crime of obstructing justice when exercising his constitutional powers to direct investigations and prosecutions. That seems right — the President is in charge of all of the executive branch, and ultimately he makes the decisions about prosecutions as part of his executive authority to enforce the law (granted, I would say, by Article II, Section 1 of the Constitution). The executive power over prosecution traditionally included the power not to prosecute for a range of reasons — to avoid wasting resources, among others, but also for reasons of fairness, or national security, and many others. Neither the FBI nor the special prosecutor exist outside the executive branch; they are subject to presidential oversight and direction as a constitutional matter (irrespective of what a statute might purport to say, but in any event the relevant statutes don’t appear to clearly say otherwise).
On the second point, it’s important to emphasize that (as the authors say) impeachment does not require a criminal offense, even though at first glance the Constitution’s text (“high Crimes and Misdemeanors”) may appear to say so. Misdemeanor here means “misconduct in office” not “minor criminal offenses.” As a result, even though a President would not be guilty of a crime for wrongfully discontinuing a prosecution (that is, doing so for a bad reason), he would be subject to impeachment if Congress felt the misconduct (“Misdemeanor”) was sufficiently grave to warrant it. This process provides the check on a corrupt President that some commentators claim would be lost without the possibility of criminal prosecution. But it should also be emphasized that the impeachment process itself is discretionary, in that Congress could decide that, even if a “Misdemeanor” occurred, the harm of pursuing it would outweigh the benefit. Nothing in the Constitution requires Congress to proceed with an impeachment.
Josh Blackman has related thoughts here: Obstruction of Justice and the Presidency: Part I. I’m not sure what to make of his second-to-last paragraph, but if his position is that the President cannot be impeached for improper use of the prosecutorial discretion power, I strongly disagree. I’ll wait to see what he says in “Part II”.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.