Why A President Should Never Be Above The LawThe idea that a sitting president can’t be indicted has never been tested.

President Donald Trump in the Oval Office (AP/Andrew Harnik)

During the scandalous and confusing years of Watergate, a perplexing and unusual question rippled through the American justice system. Could a sitting president be indicted for a crime just like anyone else? A brief signed by then-Solicitor General Robert H. Bork said that sitting presidents are immune from prosecution. Decades later, a review from law professor Ronald Rotunda for Kenneth Star disagreed with this take. Since Nixon resigned before articles of impeachment could be drawn up, and Clinton was acquitted in the Senate, we never actually got a firm answer. With Trump, we just might, setting a firm precedent for the future, and we better hope the answer is yes.



Now, I’m no slick, big city lawyer, or any kind of lawyer for that matter. (I’m a computer scientist by education.) But I have lived in Ukraine, where courts packed with lackeys and toadies answered a similar question in the negative and know what happens afterward. At stake is the obvious question of what constitutes rule of law. If we have it, then no citizen of the country is allowed to get away with a crime, even temporarily, and everyone, from a petty thief caught pickpocketing old ladies, to the commander-in-chief, must answer for their misdeeds. If we don’t, your wealth and political connections determine whether you are even threatened with punishment.



You could argue that in America, that already happens. Minorities and the poor face more arrests, convictions, and longer jail terms than the wealthy majority. And while this is indeed true and disturbing, and as much as this topic needs to be discussed, it’s tangential to the main issue, the question of whether political office, not just skin color or bank account value, can be used as an honest to goodness, literal get-out-of-jail card even for high crimes and misdemeanors. Because if it does, then democracy will die overnight since a court system to which those in power are no longer accountable is the final step in every autocracy or dictatorship cementing their power over the long term, dismantling the very concept of separation of powers.