President Donald Trump invites U.S. representative Jim Jordan on stage to speak at a 2018 campaign rally in Ohio.
WASHINGTON, D. C. – As much as U.S. Rep. Jim Jordan might want to pass legislation that would block “politically motivated” prosecutions of current and former presidents like Donald Trump, legal experts predict he won’t get very far.
In interviews with Cleveland.com/The Plain Dealer, law professors offered several reasons why. Provisions in the U.S. Constitution limit the powers of Congress. Past U.S. Supreme Court decisions indicate presidents aren’t above the law. And the Democrat-controlled U.S. Senate and the current president would never sign off on legislation to protect Trump.
Jordan, an Ohio Republican who chairs the House Judiciary Committee, last week said he’s weighing legislation that would protect “former and/or current Presidents from politically motivated prosecutions by state and local officials” in response to charges that will reportedly be filed against Trump for his role in making an alleged $130,000 hush-money payment to adult film actress Stormy Daniels.
The office of the New York district attorney pursuing charges against Trump denies Republican claims that the Trump prosecution is politically motivated. A demand by Jordan for testimony about its probe, according to the office, amounts to federal interference with a local prosecution, which Jordan denies.
“Congress has a specific and manifestly important interest in preventing politically motivated prosecutions of current and former Presidents by elected state and local prosecutors, particularly those tried before elected state and local trial-level judges,” said a letter Jordan wrote to New York district attorney, Alvin L. Bragg, Jr., with several of his GOP colleagues.
“Therefore, the Committee on the Judiciary, as a part of its broad authority to develop criminal justice legislation, must now consider whether to draft legislation that would, if enacted, insulate current and former presidents from such improper state and local prosecutions,” the letter said. “These legislative reforms may include, for example, broadening the existing statutory right of removal of certain criminal cases from state court to federal court.”
A Jordan spokesman did not provide further information on Jordan’s potential legislation when asked for it on Friday.
Case Western Reserve University’s Jonathan Adler expressed strong skepticism Jordan will be able to do what he suggests. Adler questions whether the powers enumerated to Congress under the U.S. Constitution would allow Congress to prevent or delay prosecutions of sitting or former presidents.
“Our federal government is one of limited and enumerated powers,” said Adler. “Congress doesn’t get to enact a law because it thinks there needs to be a law. It has to be within the enumerated powers of federal government and not intrude on state sovereignty.”
He said that federal courts are supposed to have jurisdiction over two types of cases: those that arise under federal laws and some civil lawsuits where the plaintiffs and defendants reside in different states. He said he’s not heard of anyone ever trying to transfer state criminal cases to federal courts.
While there is a Justice Department policy that blocks indicting or prosecuting a sitting president on the grounds that it would “impermissibly undermine” the executive branch, Adler observed the U.S. Supreme Court ruled that sitting presidents aren’t immune from civil litigation in a case where former Arkansas state employee Paula Jones alleged sexual harassment by Bill Clinton before he became president.
“I think one could argue it is necessary and proper to limit state actions that would interfere with a president’s ability to discharge their duties,” said Adler. “I don’t see how that reaches a former president. Especially, if one is talking about prosecutions that do not relate in any way to the president performing their duties.”
Adler’s Case Western Reserve University law school colleague Jonathan Entin agreed it would be hard to craft a “coherent” statute that would do what Jordan claims he wants to do.
“I also think this raises some question about the extent to which we want the federal government telling local prosecutors how to do their jobs,” said Adler. “To the extent that this is a politically motivated prosecution that has little or no substance behind it, I am confident that Donald Trump’s lawyers will make that argument aggressively in court. If it is a meritorious argument, they should win.”
University of North Carolina law professor Michael Gerhardt, whose teaching and research focuses on constitutional conflicts between presidents and Congress, observed that the Supreme Court ruled in a case that involved Trump and Bragg’s predecessor, Cyrus Vance, that a sitting president may be subject to a state criminal investigation or prosecution.
Although Jordan’s letter to Bragg suggested “there are federal concerns with having a state prosecutor going after a former president,” Gerhardt said Trump v. Vance found those concerns to be negligible – and identified several safeguards against inappropriate, partisan-motivated prosecutions.
“It is interesting and perhaps revealing that Mr. Jordan, normally a champion of federalism and states’ rights, wishes for the federal government to take full control over the laws that may be applied to a president after leaving office,” Gerhardt said in an email. He noted that the Supreme Court rejected all the arguments in Jordan’s letter as “either inappropriate or inconsequential in cases involving state prosecutors conducting criminal investigations into sitting presidents.
“No sitting president is above the law, and no former president is above the law, either,” he continued. “I imagine Mr. Jordan would take a different tack if it were a Democratic president.”
Frank Bowman, a University of Missouri emeritus law professor and former federal prosecutor, said he did not think it would be “possible or even remotely constitutional” to exempt a former president or any other former federal official from “the operation of normal state criminal law because they are a former federal official.”
Local judicial systems already have safeguards against politically-motivated prosecutions, he said, in that prosecutors must convince a grand jury, judges and juries that charges are warranted.
He called Jordan’s potential bill “a political fantasy, from a whole variety of perspectives.”
“Even assuming you could get over constitutional hurdles, how would you write a bill that could pass the laugh test that would exclude a president or anyone else from the normal operations of state criminal laws?” Bowman asked. “It is insane. It won’t happen. They’ll rumble and snort about it, but there will never be a bill.”
George Washington University Law School professor Paul Schiff Berman opined that even exempting sitting presidents from criminal prosecution would probably be banned by the section of the U.S. Constitution which describes the impeachment process.
It says that impeached federal officials can be removed from office and disqualified from holding future offices and are also “liable and subject to Indictment, Trial, Judgement and Punishment according to Law.”
When asked if there could be a flood of political prosecutions without the law Jordan suggests, Berman said “the danger to the country runs in both directions.”
He said it would be dangerous to place someone “above the law just because they are president or were president,” and would also be problematic to have politically motivated criminal prosecutions of past public officials.
“We are in dangerous, uncharted waters no matter what happens,” said Berman. “Given the dangers in both directions, I think we have to let an unbiased legal process operate the way it is supposed to. In this case, it means letting 23 normal citizens, not the prosecutor, not the Biden administration, not a political rival, 23 people on a grand jury hear the evidence and decide whether there are sufficient grounds to indict, which I gather they did.”
He said that Trump could face another case from a Georgia grand jury that’s examining whether Trump should face election tampering charges for actions that include telling Georgia’s Secretary of State to “find” 11,780 votes, so he could exceed President Biden’s total in the state. There’s also a special prosecutor investigating whether Trump’s removal of White House documents violated any laws.
“These kinds of cases are stress tests for our democracy and the rule of law,” said Berman. “I think it would be better for the country if everyone steps back from claiming political motivation and allows what is supposed to be an independent non-partisan investigation to take place the way it would for any other American citizen.”
