RUTHFULLY YOURS

Go ahead, make our day. That’s our reaction to Speaker Nancy Pelosi’s call for a new law to provide for the indictment of a sitting president. The California Democrat endorses the idea, telling NPR that a president “should be indicted, if he’s committed a wrongdoing — any president.” Adds she: “There is nothing anyplace that says the president should not be indicted.”

Except in the Constitution, where the bar against indicting a sitting president is hiding in plain sight. It lurks in the logic of separated powers. And also in the stinginess with which the Constitution parcels out the power — and obligation — to take care that our laws be faithfully executed. That power is granted to the President alone — and his alone is the obligation.

It certainly doesn’t go to the Congress. Not only does the Constitution fail to grant to Congress the power to take care that our laws are faithfully executed. It also pointedly — with the prohibition on bills of attainder — forbids the Congress condemning individuals. The fact is that the Founders just didn’t trust the Congress to faithfully execute the laws it passed.

Nor is the power to execute faithfully our laws granted to the courts, whose pointedly particular powers are parsimoniously parcelled out in the parchment. The judicial power of the United States, the Supreme Court has marked, is limited to only actual cases and controversies. The courts can’t initiate cases; that is left to prosecutors or civil litigants. The courts can but decide them.

Every time this comes up, of course, the Democrats start talking about how no one is above the law. The problem with that line of argument is that the Constitution is the law. Nor is the president the only party to whom the Constitution grants certain immunities and privileges. Members of the House and Senate, say, are, except for serious crimes, privileged from arrest while attending Congress.

Moreover, for anything said on the floor of either house, no member of Congress can be questioned in any other place — not in a Court, a grand jury, or a spy-proof room. Are they above the law? No. That is the law. Judges, too, have certain immunities. They can’t be fired, and not even Congress can lower their pay — ever — during however long it is that they maintain good behavior.

Again, it’s not that they’re above the law. That is the law. It says judges are different from presidents and members of Congress. Presidents and legislators don’t have to maintain good behavior, but they do have to stand for election. The point is that the law no one is above provides precisely for various immunities for various offices. They are as American as a pie made from apples.

The idea that a sitting president is immune from pursuit in criminal court is not just a conservative idea. Jefferson himself warned that if the courts could “bandy” the president “from pillar to post,” they could “withdraw him entirely from his constitutional duties.” Jurist Joseph Story reckoned, in 1833, that a president could not be detained “while he is in the discharge of the duties of his office.”

A similar conclusion has been reached by such modern-day scholars as Akhil Amar of Yale. In any event, such immunities attach not to the person but the holder of the office. This is underlined in the grant to Congress of the power of impeachment. The prime guard against law-breaking by presidents and judges empowers Congress to remove an offender, and the Constitution includes a codicil.

Once a president or judge is removed, the parchment specifically provides that the party removed from office via impeachment would then be “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” It’s all there in the law as it currently stands, and it’s shocking that Mrs. Pelosi, who is sworn to the Constitution, wants to trifle with it through legislation.

The fact is that the Congress could expose President Trump to prosecution any time it wants. Impeachment could be done in a day. Yet nearly three years into Mr. Trump’s presidency, the House has yet even to accuse. Nor has Congress proposed the kind of bill Mrs. Pelosi claims she wants. It knows such a measure would get shot down at the Supreme Court. So, as we say, go ahead, make our day.