If impeachment is the only option, then impeachment has to ALWAYS be on the table
From the beginning of the investigation into Trump’s contacts with the Russian government, Trump apologists have been quick to point out Justice Department decisions indicating that a sitting executive cannot be indicted. There has been, and continues to be, vigorous debate over whether there genuinely is some carve-out in law that would permit mass murder on Fifth Avenue without legal consequences, but most reports continue to behave as if Trump’s freedom from indictment is a given. Trump attorney Rudy Giuliani was explicit in his statement to CNN concerning the ability of the special counsel’s office to file indictments against Trump as they have against so many of his associates: “All they get to do is write a report. They can’t indict.”
The evidence for that is questionable. The only reason to believe Trump is exempt from indictment is the rather convoluted logic that indicting the executive would be so distracting as to create problems for the nation. But even if that were true, there are already multiple solutions in place to address an executive incapacitated by anything from an operation to insanity. There’s no reason to believe that an indictment, even if it required full-time attention, should be treated any differently than a particularly debilitating kidney stone. Presidents are human beings. They get sick. And they can get indicted. Trying to rule out one is about as reasonable as trying to outlaw the other.
However, whether or not indictment is arbitrarily removed from the table, there’s a very, very good argument that we should rehabilitate the whole idea of impeachment. Just because impeachment has failed in the past, just because its use, or misuse, has generated at least the perception of political pushback, doesn’t mean that impeachment isn’t an important—even a vital—tool.
The Constitution doesn’t say the president is always exempt from indictment. It says he is also subject to impeachment. And the threat that impeachment may be used, damn the political torpedoes, full speed ahead, has to remain on the table, at all times, if there is to be any constraint on the executive.