I don’t think Donald Trump or any other president should be immune from indictment. You or I can face indictment, and a president isn’t above us. He’s a public servant, our employee. He works for us.
I know that the Justice Department has argued that no court can indict a president. “The indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” Assistant Attorney General Randolph Moss wrote in 2000.
But if an indictment makes the president unable to run the executive branch, the 25th Amendment should come into play: “[When] the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” (People usually think that the 25th applies to physical problems such as Dwight Eisenhower’s heart attack or Woodrow Wilson’s stroke, but the amendment never mentions illness.)
I’m no fan of Vice President Pence, and I don’t like thinking of him as acting president. But I’d rather see that outcome than let a president, any president, be above the law. If he’s broken the law, then indict him and prosecute him, and let the vice president (even Pence) take over.
And yes, Republicans, I would have applied that standard to Bill Clinton. I would have had no problem with Al Gore as acting president.