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So Why Is It That a President Can’t Be Indicted??

May 30, 2019
OLC opinion


At least one thing is now clear about the redacted Mueller Report, which is that everything ultimately hinged on the 1973 Department of Justice Office of Legal Counsel opinion that a sitting president–“uniquely”–could not be indicted for a crime. According to the memo, any other government official–including the vice-president–could be indicted, but not the president. It is important to remember that this is NOT in the Constitution, and it is NOT codified in any law, but this opinion critically limited the scope and direction of Mueller’s investigation. So how did this memo become treated as sacred scripture?

The original OLC opinion was drafted in September 1973 in the context of corruption charges against then-Vice President Agnew, but it also followed a summer of Watergate hearings aimed at President Nixon which had riveted the country. The crimes for which Agnew would soon resign from office were basically garden-variety bribery charges which were easy for the public to understand, and they were doing serious damage to Nixon’s administration which was already under siege. Nixon was willing to toss Agnew overboard to try to keep his own raft afloat. But he needed a rationale to would allow him to get rid of Agnew while protecting himself, and his Solicitor General Robert Bork (who would become Acting Attorney General the following month after the “Saturday Night Massacre”) delivered.

The DOJ revisited and reaffirmed the original conclusions in another memorandum of opinion published in October 2000, though it appears to have been drafted earlier at the time of the Ken Starr investigation. (Clinton was impeached right after the 1998 midterm elections, but the Senate failed to convict him in February 1999.) As a excellent article in Lawfare notes, it appears to have been drafted with the Clinton case in mind, and “does not grapple with the significant obstacles to trying a multi-defendant criminal conspiracy while excluding from the charging document any reference to one of the conspirators—and perhaps a key conspirator.”

It’s definitely worth reading the October 2000 memo to examine the rationale for its conclusions, which seem quite dubious to me though we now seem to be stuck with them. It’s dense reading, but certainly comprehensible for non-lawyers like me. Read it yourself here.

Perhaps the most remarkable thing about the two memos, is that the author(s) could find no direct basis for making the president immune from criminal prosecution in the text of the Constitution. The 1973 memo (which the 2000 memo endorses in its entirety), “concluded that the plain terms of the [Impeachment Judgment] Clause do not impose such a general bar to indictment or criminal trial prior to impeachment and therefore do not, by themselves, preclude the criminal prosecution of a sitting President.”

The original memo then looks at whether immunity “can be justified on other grounds, in particular the consideration that the President’s subjection to the jurisdiction of the courts would be inconsistent with his position as head of the Executive branch.” Again, nothing found that was conclusive.

How about separation of powers? Problematic there too. “It cannot be said either that the courts have the same jurisdiction over the President as if he were an ordinary citizen or that the President is absolutely immune from the jurisdiction of the courts in regard to any kind of claim.” As a consequence, “ [t]he proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities and functions of the Presidency.”

Would the nature of the Presidency render a criminal trial “too political for the judicial process.” Nope, the memo finds that argument unpersuasive too. “Nothing about the criminal offenses for which a sitting President would be tried would appear to render the criminal proceedings ‘too political’.”

Next the memo considers the bizarre argument that because the President has the power to supervise federal prosecutions he should not himself be subject to indictment or criminal prosecution. I.e., the President could not be a criminal precisely because he’s in charge of federal law enforcement. The memo sees problems here as well.

After rejecting all of these justifications, the memo at last finds something to latch onto, i.e., that under the doctrine of separation of powers, indictment or prosecution of a president would “unduly interfere in a direct or formal sense with the conduct of the Presidency.” This is because “the necessity of the defendant’s appearance in a criminal trial was of great relevance in determining how the proper constitutional balance should
be struck. By virtue of the necessity of the defendant’s appearance, the institution
of criminal proceedings against a sitting President ‘would interfere with the President’s unique official duties, most of which cannot be performed by anyone else’….“[during the past century the duties of the Presidency . . .have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution.”

The logic here is mind-bending, as it develops the notion that a president can’t be prosecuted or even indicted for crimes that he has committed (and possibly continues to commit) because he’s too busy running the country, and no one else can do that for him while he has to show up in court.  Okay then, wouldn’t the same principle apply in the event of impeachment? The memo implicitly recognizes a little problem here, but says “in contrast to the risks that would attend a criminal proceeding against a sitting President, ‘this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process’.” So…if it’s a “necessary incident” of impeachment, why wouldn’t it be the same for a criminal inquiry?

The memo then circles back to the previously rejected idea that a criminal inquiry would necessarily be too political. “By virtue of the impact that an adjudication of criminal culpability might have, a criminal proceeding against the President is, in some respects, necessarily political in a way that criminal proceedings against other civil officers would not be. In this respect, it would be ‘incongruous’ for a ‘jury of twelve’ to undertake the
‘unavoidably political’ task of rendering judgment in a criminal proceeding against the President.” In other words, criminal indictments against any other federal official, up to and including the Vice President, would not be “unavoidably political”, but such an action against the president would be. How’s that again?

Then, it argues that it would be uniquely “incongruous” for a jury of twelve to render a verdict against a president (again, oddly, unlike any other official) because they would not be representative of the entire country, as opposed to an impeachment proceeding in Congress, and it “would confer upon a jury of twelve the power, in effect, to overturn
this national election.” Never mind that a criminal conviction wouldn’t necessarily result in removal from office.

The memo then looks at the possibility of indicting a president, but leaving a trial until after he has left office. But “an indictment hanging over the President while he remains in office would damage the institution of the Presidency virtually to the same extent as an actual conviction…[and]…there would be damage to the executive branch
‘flowing from unrefuted charges’.” The memo opines that “the modern Presidency, under
whatever party, has had to assume a leadership role undreamed of in the eighteenth
and early nineteenth centuries,” and “[t]he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”

Let’s leave aside the obvious fact that the Trump doesn’t appear to be working all that hard at the nation’s business, what with daily “executive time”, tweet breaks and watching Fox and Friends, frequent golfing weekends and trips to Mar-a-Lago, and non-stop partisan rallies. Is a president really so indispensable that the only way he can be held accountable is to impeach him?

Oddly, neither the 1973 OLC memo nor its 2000 version makes any mention of an available remedy, which would be to invoke the 25th Amendment if the president were so beset by a criminal proceeding that he was “unable to discharge the powers and duties of his office.” In that case, the Vice President would become the Acting President until the president were acquitted or removed from office. That amendment was passed in 1967.

Then there was that awkward business of Clinton v. Jones, the 1997 civil suit in which the Supreme Court established that a sitting president has no immunity from civil litigation against him or her, for acts done before taking office and unrelated to the office. In particular, the court held that there is no temporary immunity, so it is not required to delay all federal cases until the President leaves office. So why is it okay to haul a president into court on a civil case but not okay if it’s a criminal case, when either would clearly impinge on his ability to carry out the functions of his office. The 2000 memo has no real argument here except to state flatly that “Clinton v. Jones, which held that the President is not immune from at least certain judicial proceedings while in office, even if those proceedings may prove somewhat burdensome, does not change our
conclusion in 1973 and again today that a sitting President cannot constitutionally be indicted or tried.”

The main point here is that both the 1973 memo and its 2000 corollary may be legitimate legal arguments, but they have been accorded a status by DOJ, the White House, and indeed the media and world of punditry that they don’t deserve. They are internal memoranda of opinion–nothing more–and they have never been seriously tested in court.

Moreover, they were both drafted with specific political agendas in mind–namely to protect a sitting president accused of serious malfeasance. The DOJ “policy”  for which they now form the basis clearly kept Mueller from following his investigation to its logical conclusion in a vastly more important context. That may irrelevant at this point in the game, but if Congress will not do its duty to impeach this president, an “opinion” drafted for specific political purposes in the past will indeed have placed him above the law.




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