Why Special Prosecutors Don’t Matter

Image courtesy of WikiMedia Commons under a CC-by-SA 2.0 license.

If you haven’t heard, there’s been a 20-page memo written by Trump’s lawyers released to the public by the New York Times (overview found here; full text and explanation here). Commentary on it so far has been fairly normal for media outlets. As it stands, the memo doesn’t exactly say anything new.

Image obtained from Wikimedia Commons.
Image Credit: Federal Bureau of Investigation

The most profound thing about it is that it highlights why special prosecutors don’t matter.
The power to grant pardons is in the U.S. Constitution (U.S. Const. Art. II, §2(1), if you want to look it up). This works in theory for every Federal law violation except for Impeachment. Since a special prosecutor only can look into Federal violations, anything it comes up with can get pardoned by a President. Trump’s memo effectively reminded Mueller of that fact. Mueller’s biggest weapon is threatening people with prison time. That threat goes out the window if President Trump pardons everyone involved.

But let’s say that Mueller manages to get something legally damning on President Trump. What happens then? The question of prosecuting a President while in office is out the window. It would most likely have to start the impeachment process first. Right now Republicans control Congress. At least some Republicans would have to vote to impeach and convict in order to make Trump available for prosecution.

In the meantime, Pence becomes President. He will have the exact same powers as Trump did. If he wanted to, he could pardon Trump before he leaves the White House for good. Most likely, Trump would have been offered a pardon even before an impeachment conviction in return for leaving quietly. His lawyers would be committing malpractice if they didn’t try to convince him to take it.

Even if Trump decides to fire all of his lawyers (it could happen) and go for broke, he’d still end up convicted of impeachment. That means he’s removed from office. To avoid the resulting circus of a former President getting indicted, Pence would still likely pardon his predecessor. Regardless of his personal feelings, the Office of the President has to get protected.

Ultimately, the only thing that might happen is changing office.
I seriously have to question any decision which might make Pence the next President. Pushing Trump out would at best get him a pardon and a chance to fade into history as a failed President. With the religious propaganda surrounding him, it runs an even bigger risk of just convincing people that he’s actually some sort of martyred savior. Hell, I wouldn’t even be surprised if someone would make a tie in to end times prophecy.

People have to ask themselves if they want justice for what happened, or if all of this is an excuse to try to get rid of a President they don’t like. To bastardize a thought from George Washington, wielding power is like wielding fire. It’s entirely possible to burn the wrong thing even with the best of intentions. Here, pushing a prosecution quickly isn’t going to get much more than changing a bad President for possibly even a worse one.

What’s a good solution here?
There are several ways this could play out which would be better for everyone in the long run. The first is that Mueller would sit on any indictments until the political climate has changed enough to support a conviction. It would give the people the chance to elect members of Congress and a President who would not rescue Mr. Trump from doing time for illegal acts. To be fair, this scenario is not very likely, as even a Democratic President would be likely to pardon Trump at the end of his or her final term in office. As I’ve said earlier, the Office of the President is too important to let one person mess it up for everyone else.

But if Mueller discovers actual wrongdoing, his best chances are to find and preserve evidence for a state prosecution. If a state indicts and convicts Mr. Trump after leaving office, Federal officials will have no say in what happens. Depending upon where it happens, Trump might even get to meet some of the people he’s been so quick to defame. It would be fitting, I think, for those chickens to come home to roost.