VERNON — The issue of indicting a sitting president now comes into focus. A sitting president must be able to be indicted, because otherwise he could get away with murder. Literally.
The argument made from those like Rudy Giuliani is that the president must be impeached first, and then when he's no longer in office, you can indict him. But that leaves a gaping hole in the process that the framers of the Constitution would never have agreed with. When the Constitution was ratified, we didn't have political parties. The framers opposed them.
George Washington specifically opposed them. As he wrote in his farewell address in 1796: “However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”
The framers didn't envision that party loyalty would ever become so tribal as to block any effort to remove a president for high crimes and misdemeanors. Surely, they thought, honorable men will do the honorable thing.
But if you can't impeach a president due to tribalism, then you can't ever convict him. It places him above the law, and that means that nothing in the Constitution applies to him. Either it all applies to him, or none of it applies.
That opens the door to tyranny, and the framers, who had just lived through a revolution against an authoritarian and autocratic monarch, would never have allowed for a despot or tyrant to subvert the system in this way.
In my view, Special Counsel Robert Mueller can and should indict the president, and if lawsuits about his authority go to the Supreme Court, then let them. The question can be answered once and for all.
But I would think that the majority of the justices - including even Brent Kavanaugh, if he is seated - would conclude that if the president is immune to indictment, then the Constitution no longer has any meaning.
Such logic would undermine the authority of the Supreme Court and abdicate its position as a co-equal branch of government. And if the Constitution doesn't apply to the president, then why would term limits apply?