How to Close Trump's Pandora's Box

WASHINGTON - Jan. 9, 2024 - PRLog -- How to Close Trump's Pandora's Box
Both Sides Discount Issue With Illusory Claims

WASHINGTON, D.C. (January 9, 2024) -  Donald Trump's lawyers contend that any president is immune from prosecution, unless there is a prior impeachment conviction, for any official action - which could even include ordering assassinations.

The suggestion that such an illegal order would never be carried out is a red herring since history shows many illegal actions by overzealous members of the military.

Also, the very utterance of such a command, even if never carried out, would constitute a crime, notes public interest law professor John Banzhaf, who played a role in having former president Richard Nixon investigated by special prosecutors.

On the other side, special counsel Jack Smith's attorney argued that there is no need to limit prosecutions of presidents once they leave office because history predicts that they will virtually never occur.

But the impeachment of Clinton, followed by two impeachments of Trump, and now an impeachment inquiry of Joe Biden, suggest that once a new tactic such as impeachment is employed and becomes publicized, others are likely to be encouraged to also use it.

In short, each side in this morning's Court of Appeals argument predicted a "parade of horribles" - as lawyers describe the tactic - if their position is rejected, but neither seemed to give much consideration to one possible remedy - legislation.

If either predictions of dire consequences (either presidents committing crimes, or unfounded prosecutions of former presidents) were to occur, or if those in power believed that they were likely, one possible remedy might be for Congress to pass legislation, suggests Banzhaf

Even if the Constitution did not shield former presidents from prosecution for their alleged crimes while in office, Congress presumably could provide appropriate and limited protection through federal legislation.

On the other side of the issue, Congress could pass legislation limiting the power of the Justice Department to prosecute former presidents.  Alternatively, Congress might step in to limit any such individual prosecution which seems to be manifestly unfair.

Neither solution, of course, is perfect, but everyone - including, one hopes, the three judges deciding this case - should recognize that the choice is not necessarily the stark one suggested by the two arguers.

Rather, under our system of checks and balances, the possible role of Congress should not be ignored, he argues.

https://www.law.gwu.edu/john-f-banzhaf-iii
jbanzhaf3ATgmail.com   @profbanzhaf