Why the presumption of innocence doesn’t apply to Trump

Former special counsel Robert Mueller’s recent testimony before Congress may feel like old — even tired — news by now, especially given the massive loss of life to senseless gun violence over the past weekend. But the contents of the 448-page report still loom very large over President Trump and the office of the presidency itself.

Not only is the evidence of obstruction of justice substantial, but post-hearing it stands factually unrebutted by Trump’s supporters in Congress.

Which brings us to an overused and badly misunderstood phrase that gets tossed around whenever politicians are accused of wrongdoing: the presumption of innocence. 

Trump himself tweeted about the Mueller Report: “There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed!” Pundits have picked up on this distortion, opining, for example, that “Trump is correct that the public ought to maintain the presumption of innocence.” 

Wrong. 

Politicians who come under fire for abusing their office do not get a legal presumption of innocence. People only get the presumption of innocence if they are indicted and facing trial for crimes. The presumption of innocence is for criminal defendants, not presidents.

Don’t just take my word for it, consider what the U.S. Supreme Court has had to say: “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” The Supreme Court treats it as “an element of due process.”

Due process is a constitutional guarantee that applies when the government tries to take away someone’s life, liberty, or property. Before the government can throw you in jail, for example, you get to be notified of the charges against you and you get a hearing to explain why the government shouldn’t take away your liberty. (There are other nuances to due process, but that’s the gist of it.)

Because of DOJ’s decades-old internal policy directing its prosecutors not to indict sitting presidents, when it comes to the Mueller report, Trump’s liberty under the due process clause is totally beside the point. It won’t kick in unless and until he is charged with a crime as a private citizen. If that happens, the presumption of innocence means that the government will bear the burden of proving at trial that he committed a crime. 

Trump wouldn’t have to “disprove” anything. He can sit at the defense table without lifting a finger and still walk free if the government blows it. The government, by contrast, will have to marshal facts — documentary evidence and witness testimony, for example — to prove each element of obstruction of justice beyond a reasonable doubt.

Put another way, the government would bear the burden of convincing a jury of three things: that Trump committed an obstructive act (e.g., directing his former White House counsel Don McGahn to have former Deputy Attorney General Rod Rosenstein fire Mueller), that the act had a connection to an official proceeding (e.g., the Mueller probe), and that he had corrupt intent when he did it (e.g., he wanted to end the probe to save his own skin and not for some benign reason).

Keep in mind that the presumption of innocence is nowhere in the actual Constitution. It is, however, defined in a leading law dictionary in a way that further dispels the swirling myth that Trump is protected by it: “A system . . . where a defendant who enters trial is presumed to be innocent of the crime. . . The prosecutor assumes the responsibility of proving the defendant guilty in court. The defendant however has no obligation to prove his innocence unless in retaliation to an evidence presented in court.”

Quite ironically, the presumption of innocence helps explain Mueller’s oft-criticized decision not to reach a decision regarding whether there is sufficient evidence to charge Trump with obstruction of justice.

Among other things, the report essentially explains, Trump isn’t in a position to hold the government to its burden of proving crimes at trial because the DOJ’s internal policy precludes prosecutors from bringing criminal cases against sitting presidents in the first place. Mueller thus afforded Trump extra due process by taking him out of the prosecutorial decision-making process altogether so as not to unfairly “charge” him with a crime that prosecutors are precluded from proving while he’s in office.

Sorry, Mr. President. You can’t have it both ways. Either you are susceptible to prosecution in a U.S. criminal court like the rest of the people in the world, or you must face the political consequences of misconduct in office—without hiding behind a criminal defendant’s presumption of innocence at trial. That could take the form of impeachment, negative press or a failed election in 2020.

For now, let’s not forget that you alone remain in charge of the Department of Justice itself.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published today. Follow her on Twitter @kim_wehle.

This is the seventh piece in a series by Wehle on understanding the Constitution. Read her analysis on constitutional literacy, constitutional rights, the country’s crisis of compassion, war power, the Supreme Court and executive power.