Today America confronts its own Gordian Knot — the unsolvable Constitutional challenge, according to most learned legal scholars: how to indict a Constitutionally un-indictable sitting President.
But even in this Orwellian “Truth is not Truth” era, some words still mean what they say. The 25th Amendment to the Constitution was ratified over half a century ago, and though it has never been invoked to indict a sitting president, that does not change the fact that its words still mean what they say. And what they say clearly provides a constitutional basis for the indictment of a sitting president.
It is America’s Constitutional Alexandrian Sword.
Here, in its entirety, is the present crisis’ Gordian Knot: the official Department of Justice memorandum on the constitutionality of “A Sitting President’s Amenabilty to Indictment and Criminal Prosecution”:
A SITTING PRESIDENT’S AMENABILITY TO INDICTMENT AND CRIMINAL PROSECUTION
The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.
Updated July 9, 2014
Steven A. Engel
Assistant Attorney General
AND HERE, in its entirety, is the 25th Amendment to the Constitution [ratified February, 1967]:
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
To be clear, the DOJ Memorandum of 2000 argues that the Constitution does not permit Presidential Indictment because the individual, who happens at a given moment to be serving in the Office of the Presidency, would — once indicted — be incapable of performing the the Presidency’s assigned functions as the head of the Executive Branch. Historically, however, even in the nearly 170 years before the 25th amendment’s adoption, whenever a particular individual was rendered incapable of performing those functions (as a result of natural death or assassination) , another designated individual (the Vice President) assumed responsibility for them. Still in the absence of the 25th Amendment, the Constitution did not provide for the transfer of the “assigned functions” of the executive branch save in the limited cases of death or impeachment.
However, the words of our Constitution’s 25th Amendment fundamentally altered those limitations. Those words mean what they say: “Whenever the President...is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”
In exactly that fashion, the 25th Amendment CONSTITUTIONALLY guarantees “the capacity of the executive branch to perform its Constitutionally assigned functions” will NOT be “undermined.” (though not — it is true — by the individual who had been serving in the office of the Presidency).
Not only do these words mean what they say, they also — most importantly — have meaning in what they do not say. They do not enumerate specific conditions or criteria that define what makes an individual “unable to discharge the powers and duties of his office.” Rather, the 25th Amendment confines itself to describing the means by which — 1) the President; or 2) the Vice President and Cabinet; or 3) the Congress — shall proceed to determine the President’s inability to fulfill his duties.
And it is both “the meaning of what is said” and “the meaning in what is not said” that provides a constitutional basis for indicting a sitting President. For it allows either the President himself or the Vice President and Cabinet to determine whether an indictment renders the President unable to discharge his duties (and even allows for the President’s return to office if found not guilty of the indictment’s charges).
Americans, it has been said, have created a secular hagiography around our Founding Fathers. We have been far less charitable toward those who led us through the turbulent 1960’s. But in the 25th Amendment, at least, those leaders seem to have risen to the task of crafting something that resolves what otherwise might be an intractable “Constitutional Crisis.” It is, in short, the Alexandrian Constitutional Sword that may be weilded to cut the Gordian Knot of Presidential Indictment.
After reading the 25th Amendment, what can one say but — “Lock him up!”