It’s become the general Trump Team position that the President cannot be indicted while in office. Trump attorney Rudy Giuliani has also claimed that Special Counsel Mueller (or someone on his staff) has informed Trump’s legal team as such.
So, the ongoing question is, can a sitting President be indicted?
I’ll first answer in a “common sense”, off the top of my head, manner.
Of course the President can be indicted.
It is one of the most basic, fundamental principles of our Republic that no man is above the law. Based on that founding concept, in my opinion, it’s absurd to suggest that the President cannot be indicted. In all of the readings and study that I have done on the founding and the Constitution and the people involved in creating it, I find it unfathomable that they would have intended for the President to not be subject to the same laws and procedures as every other citizen. It is contradictory to everything they stood and fought for.
That said, let’s take a closer look at the issue.
First, what does the Constitution say about this issue?
There is nothing in the Constitution that specifically addresses whether the President can be indicted or not. That’s our first clue. But the usual claim is that the Constitution requires the President to be impeached first, and then is subject to indictment and trial in the regular courts.
The Executive Branch is discussed in Article II of the Constitution, including the issue of impeachment:
Article II, Section 4
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Notice that there is no mention of if or when the President (or any other officer) can be indicted.
But there is mention of “Indictment’ in Article I, which discusses the power of impeachment that Congress is provided:
Article I, Section 3
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Aha! There it is! It says that impeachment must happen first and then they are “liable and subject to indictment”.
Alexander Hamilton, in Federalist 69, seems to concur:
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.
But is that what is actually being stated?
No. The only thing this clause and Hamilton are saying is that even after the impeachment and removal of office of an individual, that does not prevent them from facing the regular courts to face charges. It is a statement that says there is no “double jeopardy” issue involved. In other words, impeachment and indictment are mutually exclusive actions.
Therefore, there is nothing in the Constitution or the founding documents that suggest a President cannot be indicted.
So, why are we now having this discussion?
Because, in 1973, the Office of Legal Counsel (OLC) at the Department of Justice (DOJ) wrote a memorandum that gives the opinion that a sitting President is immune from indictment. This opinion was reiterated in another OLC opinion in 2000. It is now being purported to be a DOJ rule that the Special Counsel must abide by.
But is that really the case?
The opinion was provided by Robert G. Dixon, Jr., Assistant Attorney General in the Office of Legal Counsel. The memorandum was dated September 24, 1973. Of course, this was right in the midst of the Watergate scandal.
The first part of the memorandum discusses whether the Constitution specifically requires impeachment before indictment for all of those officers that are subject to impeachment. Remember, impeachment is not only for the President. It is also for the “Vice President and all civil Officers of the United States”. The are no special provisions in the Constitution that distinguishes different procedures for the President and the others.
So, the memorandum details a number of cases where there were, indeed, indictments without impeachment. The conclusion is that, no, the Constitution does not prevent an indictment prior to impeachment. But, all of the examples are for other officers and judges…not for the President. It then presents a case that opines that the President is a special case because the president is singularly in charge of the Executive Branch and disrupting the President would severely impact the governing of the Republic.
From the OLC Memorandum:
This argument is based on the increased powers and duties of the Presidency that have been accrued (usurped) during the past 100 years. So, the opinion is that because the President is so busy doing stuff that is not Constitutionally mandated, he can’t be bothered with an indictment and trial.
Note the phrase, “has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries.” Right, the founders and the Constitution never intended for the President to have such powers and duties, in other words.
The opinion then goes on to make the claim that it wouldn’t be fair for the President to sit in judgement like the rest of the citizens:
So, the President is above the laws that regular citizens are subject to?
In the end, the OLC concludes that the President holds a special office, differing from the other impeachable offices, and thus is immune from indictment.
One of the biggest problems with this opinion is that the Constitution, through the 25th Amendment, provides for a process by which the government and Executive Branch can continue to operate even when the president is incapacitated for any reason:
25th Amendment, Section 4
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that 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.
The idea that the President cannot be indicted is based mainly on this opinion by this one guy in 1973 in the OLC at the DOJ. Can anyone think of a reason why this person might not be the best person to rely on as to whether the President is subject to indictment? If you just yelled, “Because he works for the President!!” at the top of your lungs, you are correct. The Assistant Attorney General in the OLC not only works for the President, but is actually appointed by the President.
Is there an wonder why he might come to such an opinion?
So now we come to the Special Counsel. Even if the OLC has provided this opinion, is the Special Counsel obligated to abide by it?
For this question, we’ll consider an article written by Andrew Crespo, an Assistant Professor of Law at Havard Law School.
Crespo puts forth the opinion that Mueller is not bound by the OLC opinion because by it’s nature, the Special Counsel is created in order to be an independent entity precisely because it’s been determined that the DOJ cannot objectively perform the duties and make the decisions necessary without a conflict of interest. Therefore, such independence cannot be bound by the opinions of that conflicted DOJ.
From Crespo’s article:
The principle that independent officers are not presumptively bound to follow OLC’s opinions is important in the present context because the Office of Special Counsel bears many of the traditional hallmarks of such independence. The special counsel himself can be removed from office only for “good cause,” such as “misconduct” or “dereliction of duty.” Moreover, he has “independent authority” to conduct litigation on behalf of the United States, in the trial courts and on appeal, without being “subject to the day-to-day supervision of any official” in the Department of Justice, including the attorney general. Similarly, he has no obligation to seek preapproval from any such official prior to taking a given course of action.
Again, the Special Counsel is created because otherwise we’re expecting political appointees of the President to investigate the President and issues surrounding him. And that is the context in which we should view the memorandums that are now being touted as the authority suggesting the President is immune from indictment, as Crespo explains:
And yet, that is precisely the question that was put to the Office of Legal Counsel in 1973 and in 2000, as the clouds of indictment drew near to the two presidents then in office.* Crucially, however, unlike the Office of Special Counsel, the Office of Legal Counsel is not insulated from presidential control. On the contrary, as Judge Pillard observes, OLC is subject to a greater degree of political control than many other DOJ offices: not only is it headed by the President’s political appointee, but “all of the OLC deputies are politically appointed as well,” unlike, say, the Office of the Solicitor General, where “three out of the four deputies are career employees.”
He further states that even if a case could be made that the Special Counsel must abide by the rules and regulations of the DOJ, the Office of Legal Counsel does not have the authority to create such rules and regulations:
As those other regulations make clear, there are a host of offices in the Department—ranging from the Office of the Assistant Attorney General for Administration, to the Advisory Committee of U.S. Attorneys, to the aptly named Office of Legal Policy—that are expressly authorized to promulgate “rules,” “regulations,” “procedures,” or “policies” for the Department, and thus to bind the special counsel.
The Office of Legal Counsel, however, is conspicuously not granted such authority. Rather, according to OLC’s authorizing regulation, its central charge is to render “opinions and legal advice to the various agencies of the government.”
In considering all of this, I’m left to conclude exactly what my common sense told me at the beginning…that, yes, a sitting President can be indicted, and if warranted, should be indicted, in the name of “no man is above the law”.
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