Executive Branch

The Rule of Law in the Demagogic Presidency, Part II: Giuliani’s Hypothetical of a Murder in the Oval Office

Bob Bauer
Monday, June 4, 2018, 5:31 PM

In posing a hypothetical that a president could not be indicted for committing murder, Giuliani appears not to have considered the serious questions that raises about his positions on the president’s immunity from liability for obstruction of justice and abuse of the pardon power.

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The lawyering on behalf of this president has always been, in a word, unconventional. Setting aside matters of practice style—among other things, the inadvisability of loudly conducted privileged conversations in a public place—the legal team has adopted a crude form of constitutional argument in claiming sweeping presidential immunities. It is almost as if the lawyers have adapted to the president’s affection for Twitter, prizing the catchiest, most provocative, but substantively deficient, formulation of their case. It is hard to see in even their written communications with the Mueller team arguments of high quality and seriousness of purpose. In Rudy Giuliani’s news show interviews, the risks of this approach are even more glaringly evident.

This past weekend, Giuliani posited that the president could not be indicted in office, only impeached, for killing someone in the Oval Office (notably, the victim cited by Guiliani in his hypothetical was Jim Comey). Why a counsel would be willing to take on the most extreme of hypotheticals, and risk having it define his constitutional position, is one mystery. But it is also striking that in putting forward this argument, Giuliani appears not to have considered, much less thought through, the serious—one might say deadly—questions it raises about his positions on the president’s immunity from liability for obstruction of justice and abuse of the pardon power.

Let’s take Giuliani’s hypothetical seriously. What would happen, under his legal theory, if a president—any president, not Donald Trump specifically—were to murder someone in the Oval Office?

There would certainly be individuals with knowledge of the event: Gunfire in the White House would draw a crowd. Consider also the likelihood that someone would help the president construct a public explanation of the event or would “take the fall” for the boss. Certain of these individuals would be legally exposed as accessories or co-conspirators, or subject to prosecution for obstruction. Now assume that the president, insisting on his innocence, pardons key witnesses as part of a corrupt bargain so that they will not testify truthfully when, under Giuliani’s theory, the now-former president is at last indictable. Add to this hypothetical that the president specifically promised these pardons to recruit staff assistance with the cover-up.

So all the president’s theories of immunity converge at this point: protection from indictment while in office, liability for obstruction and use of the pardon power. Giuliani’s answer is that the president would be impeached the next day. Perhaps, and—if the president has fabricated an exculpatory explanation for the killing—perhaps not. But would Congress not be forced to act when the president pardons the witnesses? Here, too, it all depends on whom the president chooses to pardon and the reasons he or she gives, and on whether the president’s party controls Congress and if the party decides to throw its lot in with the murderous chief executive.

Does Giuliani imagine that he could successfully manage an exchange with a court about this hypothetical and win the day on the question of whether the president is, or is not, “above the law” in the Trump constitutional worldview? Under his theory, a president who committed a heinous crime is constitutionally protected from indictment while in office and can also act through the use of the pardon power to enhance her chances of escaping legal accountability, for both murder and obstruction, after she returns to private life. Meanwhile, protesting her innocence and in a devil’s bargain with her party, she also skates free of impeachment. In fact, she disingenuously mounts as one of the arguments against impeachment that the legal system, not Congress, is best left to sort out the questions of criminal guilt or innocence. But, of course, this president has abused her constitutional powers to interfere with the functioning of normal legal process—to rig the game.

And none of this even considers the possibility that on her last day in office the president pardons herself, insisting—as does the current occupant of the Oval Office—that this power is “absolute.” How would Giuliani, having invited the inquiry, answer the question of what is left of the rule of law in this scenario?

Those who follow not-very-good movies might recall one built around a killing by a president and a cover-up. The title: "Absolute Power." In that film, the president, played by Gene Hackman, had the misfortune of facing off against Wesley Snipes and Clint Eastwood. But perhaps it would have made a difference if he had had Donald Trump’s lawyers and they could have made the case for his constitutional immunities.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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