Here’s how Mueller could file criminal charges against President Trump
The Justice Department has long held the view that a sitting president cannot be indicted. However there is a fail-safe mechanism in the law reserved for special circumstances.
President Donald Trump has effectively become an ‘unindicted co-conspirator’ in federal crimes after his former attorney, Michael Cohen, pleaded guilty to felony charges on Tuesday.
Now, the development is raising questions about the possibility of indicting a sitting U.S. president, and the existing mechanisms the government has in place to handle such a black swan event.
So, if Trump were to be indicted, how would it happen?
Under current regulations, the Justice Department investigates allegations of presidential misconduct through a special counsel—in this case, former FBI Director Robert Mueller.
This special counsel has an extraordinary amount of day-to-day independence to carry out investigations, but remains ultimately accountable to the leadership of the Justice Department, which is headed by the attorney general.
In theory, a president cannot directly fire a special counsel; only the attorney general can do that, and only for “good cause.” It’s complicated, however, because the president does have the power to fire an attorney general, and therefore could keep firing attorneys general until one agrees to fire the special counsel, which is essentially what former President Richard Nixon did in the Saturday Night Massacre amid the Watergate scandal.
A special counsel faces another roadblock in the pursuit of criminal charges against a president: The Justice Department has long held the legal view that a sitting U.S. president is immune from routine criminal prosecution, which “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
However, there does exist a special mechanism in the law that allows for criminal charges to be brought against a sitting U.S. president.
“In the special counsel regulations, we anticipated for the possibility that something unusual might happen, and there’s a mechanism for Mr. Mueller to go and seek the indictment,” Neal Katyal, a lawyer who drafted the special counsel regulations that govern Mueller’s investigation, told The Daily podcast.
Should Mueller decide to pursue criminal charges against the president, he would first have to obtain permission from the acting attorney general, Deputy Attorney General Rod Rosenstein.
“If Rod says yes, the criminal process will unfold against the president,” Katyal said. “If Rod Rosenstein says no, that triggers a report to Congress, and it’s a mandatory report at that level. And then Rosenstein and Mueller have to explain what happened to Congress. And that then provides sunlight into the process.”
This mandatory report is designed to be a fail-safe that prevents a politically biased attorney general from thwarting a fair investigation. After all, the attorney general is appointed by the president, and it’s possible that an attorney general will adhere to party politics instead of principle.
But the mandatory report at least guarantees that Congress, media and the public are provided a description of why the Justice Department decided not to pursue criminal charges. Congress could use that knowledge to decide on impeachment motions, though the odds of an impeachment would be arguably lower in situations where Congress is controlled by the same party as the president, as is the case today.
Katyal said he and his colleagues created the fail-safe mechanism after considering the possibility of a ‘black swan’ event reminiscent of the Nixon era.
“We imagined it, but it was the nightmare scenario,” he said. “We were writing at a time in the shadow of Nixon, so we understood the possibility that you could have a president who is alleged to be deeply corrupt and deeply antithetical to the rule of law. I sure hoped that it would never be something I’d see in my lifetime and that the country wouldn’t see, but we wrote for that possibility.”
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Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:
"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."
Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.
Civil discourse has fallen to an all time low.
The question that the American populace needs to ask itself now is: how do we fix it?
Discursive fundamentals need to be taught to preserve free expression
In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.
It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.
Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.
Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.
The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.
It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.
In their findings the authors state:
"The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
upholding First Amendment ideals.
Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."
With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.
Talking politics at Thanksgiving dinner
As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:
- Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
- Traditional Liberals: older, retired, open to compromise, rational, cautious.
- Passive Liberals: unhappy, insecure, distrustful, disillusioned.
- Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
- Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
- Traditional Conservatives: religious, middle class, patriotic, moralistic.
- Devoted Conservatives: white, retired, highly engaged, uncompromising,
Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.
It's interesting to note the authors found that:
"Tribe membership shows strong reliability in predicting views across different political topics."
You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.
Here are some statistics on differing viewpoints according to political party:
- 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
- 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
- 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
- 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
- 58% of Democrats say employers should punish employees for offensive Facebook posts.
- 47% of Republicans favor bans on building new mosques.
Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement
Here are some guidelines for civic discourse that might come in handy:
- Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
- Practice inclusion and listen to who you're speaking to.
- Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
- Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
- We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
- If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.
Civic discourse in the divisive age
Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.
There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:
"In the era of social media and partisan news outlets, America's differences have become
dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
the other side can no longer be tolerated, and no price is too high to defeat them.
These tensions are poisoning personal relationships, consuming our politics and
putting our democracy in peril.
Once a country has become tribalized, debates about contested issues from
immigration and trade to economic management, climate change and national security,
become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
The work of rebuilding our fragmented society needs to start now. It extends from
re-connecting people across the lines of division in local communities all the way to
building a renewed sense of national identity: a bigger story of us."
We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.
This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.
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