INDICTING A SITTING PRESIDENT: PROPOSED AMENDMENT TO THE DEPARTMENT OF JUSTICE POLICY*
This policy is amended to apply only to sitting presidents against whom no probable cause exists for crimes against the United States to influence the outcome of the election that resulted in his/her presidency. If the indictable offenses are central to the legitimacy of his/her election to the office of the president, the president is prohibited from using the shield of the elected office to avoid indictment
Untitled, Oil on Canvas, 18” x 28”, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
At least two crimes of which we are aware for which Individual 1 could be indicted today are at the core of his legitimacy as president. Those crimes constitute an alleged fraud on the citizens of the United States, all 325,700,000 of them. In my experience, victims of civil or criminal fraud have the right to void the fraudulent transaction. That means they are released from any legal obligation a legitimate transaction would have imposed on them. Victims of a provable crime of fraud are not and ought not to be forced to abide its outcome. It is fraud, after all, trickery, craft, artifice, deceit.
Some may argue this is a question-begging exercise because we must presume his innocence of crimes associated with cheating to get elected. My argument is that if sufficient legal cause exists to issue an indictment against him/her for crimes that go to the core of the legitimacy of the very shield — the office of the president — s/he hides behind, s/he of all United States citizens must be held to account. Now. With dispatch. Every moment s/he remains in office would be a continuing fraud and therefore continuing harm to the victims, all 325,700,000 of them. Time would be of the essence.
Some may argue that as a convict of crimes associated with cheating to get elected he would remain president under the Constitution, even while sitting in prison, unless and until the Congress impeaches him and the Senate convicts. Maybe. Maybe not. At that point, even 20 Republican Senators might muster the moral and political courage to remove him if the courts didn’t beat the Senate to it. Defrauding the United States of America undermines the legitimacy of the transaction. Hence, it should be voided. Courts do it all the time. The Congress sans the Senate could file a lawsuit in the United States District Court for the District of Columbia, seeking injunctive relief to void the election based on his criminal conviction for having defrauded his way to the presidency. Would it pass constitutional muster? We won’t know until the courts wrestle with the issues and decide. But my assumption, and it’s only just that, is the rationale for a policy or constitutional shield is meant to protect only legitimately-elected presidents. All others should be considered imposters.
On February 16, 2018, a grand jury returned an Indictment against 13 Russian nationals and three Russian companies alleging a conspiracy to defraud the United States. “Defraud the United States” means to cheat the United States government or any of its agencies out of money or property. It also means to obstruct or interfere with one of the United States government’s lawful functions, by deceit, craft, trickery, or dishonest means. Presidential elections are a lawful function of the United States.
The Indictment alleges:
“From in or around 2014 to the present, Defendants knowingly and intentionally conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016. . . . The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means in order to enable the Defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. presidential election.”
United States v. Internet Research Agency, et al., United States District Court for the District of Columbia, Case No:18-cr-00032-DLF Document 1, Filed 02/16/18, at 2–3, 12.
Even assuming for arguments’ sake Individual 1 did not conspire with Russia to illegally influence the outcome of the 2016 election, he clearly conspired with Mr. Cohen to defraud the United States and engaged in the overt acts [separate criminal conduct] of violating the campaign finance laws by purchasing the silence of two women about alleged affairs to influence the outcome of the election.
Oh, and upon his conviction and as part of his criminal sentence, the court could order him to pay restitution to the United States and his victims. I wonder what out-of-pocket damages his victims incurred in connection with a voided presidential election. Let that sink in.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamend