IN September 2017, the ombudsman’s central office disclosed that it was investigating the complaint of Sen. Antonio Trillanes IV against President Duterte and his family for alleged unexplained wealth stashed in a number of banks.
Can a sitting president be investigated for an alleged crime? Duterte then did not object to the inquiry, much more raise the defense that he could not be investigated. The ombudsman at the time, Conchita Carpio-Morales, explained that her office was investigating the president but it could not indict him.
Same rule
The US has pretty much the same rule. Special counsel Robert S. Mueller III inquired into the Russian meddling in the US elections of 2016 and possible collusion of Trump and his campaign. Unlike Duterte, Trump noisily objected, complaining of a “witchhunt” by Democrats and the media.
The Mueller report, submitted last March 22 after nearly two years of work, summed up the ambit of its work: it investigated Trump but it could not criminally charge him in court.
Carpio-Morales cited our ombudsman law. Mueller cited the policy that its Department of Justice adopted. Both looked at a common feature in their respective country’s democratic structure: a president cannot be charged criminally while in office so that he can do his job unimpaired.
Different results
The outcomes in the two cases differed.
The ombudsman inquiry on Duterte’s wealth was ended on Nov. 29, 2017 because the Anti-Money Laundering Council (AMLC) “didn’t provide vital data.” The probe didn’t report any finding; it didn’t get anywhere.
The Mueller report could’ve made a conclusion on Trump’s liability but it chose not to do so because, it said, it could not indict him if it had.
More than 1,000 former and present prosecutors across the US publicly said last May 30 Trump would’ve been criminally charged for obstructing justice if he were not the president. They believe Mueller should’ve made a conclusion.
A president is not above the law because he can still be sued after his term of office and, before then, he may face impeachment and trial, with its prospect of removal.
Sense of power
But why would a president be tempted to relish the idea that he is above the law?
In Trump’s case, Mueller seemed to tiptoe around the president, careful not to say he was probably guilty--but also not to say that he was innocent. “If we had confidence,” after their long and extensive investigation, “that probably he did not commit a crime, we would have said so.” What confusing play of words. Trump seized the ambiguity to say he was “totally exonerated” and his minion of an attorney general to declare Trump committed no crime.
As for Duterte, the decision of the ombudsman to terminate its probe, without pressing the AMLC to produce the data, must have affirmed the sense of presidential power.
Political remedy
And common to both Trump and Duterte is that an impeachment would falter: Trump controls the Senate; Duterte then controlled the House, on top of his high popularity. The “I” remedy is largely political and without deep public outrage and enough number of independent-thinking legislators will not succeed.
A strong buffer against criminal indictment, full access to power and an investigator who handles the inquiry and treats the subject gingerly. Those are inducements for a sitting president to think that he is above the law.