Lazy media villagers and cable news jockeys — lookin’ at you Chuck Todd –rotely recite that the Office of Legal Counsel has legal memorandums which say that a sitting president cannot be indicted, “so whatcha gonna do” about Donald Trump?

This is an unsettled question of law.  If you actually read the lengthy OLC memos in full, you will find that the OLC first found that a sitting president can be indicted irrespective of any impeachment proceeding by law, but then made a policy argument against the Department of Justice from doing so.

In contrast, independent counsels Leon Jaworski and Kenneth Star both prepared legal memorandums which found that a grand jury could indict a sitting president, and Ken Starr even had an indictment prepared, which he decided not to pursue (see below the fold).

With Republicans in Congress aiding and abetting obstruction of justice by Donald Trump and expressing their willingness to abdicate their constitutionally prescribed duty to permit Trump’s ongoing criminal misconduct to continue unimpaired by Congress, GOP shrugs at Trump’s involvement in Cohen crimes, and ‘I Don’t Care’: GOP Senators Dismiss Allegations Against Trump, effectively rendering the impeachment clause remedy a nullity (i.e., jury nullification), the indictment of Donald Trump by Robert Mueller for his criminal misconduct may be necessary in order to obtain justice.

44 former U.S. Senators are so concerned about Trump’s criminal misconduct and Senate Republicans willingness to abdicate their responsibilities that they are literally pleading with senators to do their constitutionally prescribed duty in an extraordinary letter. We are former senators. The Senate has long stood in defense of democracy — and must again.

Harvard law professor Laurence Tribe was a guest on The Last Word with Lawrence O’Donnell to explain that there is nothing in the Constitution that prevents the indictment of a sitting president. Video Link.

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I have been over this topic before, with respect to the views of Judge Brett Kavanaugh, now a Justice on the U.S. Supreme Court. Judge Brett Kavanaugh on Independent Counsels (Part 1) (excerpt):

In fact, when Kavanaugh was working as senior counsel for Independent Counsel Ken Starr, he likely participated in requesting and reviewing the 56-page memo by Ronald Rotunda that is the most thorough government-commissioned analysis rejecting  the generally held view that presidents are immune from prosecution while in office.

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

The New York Times reported that:

Other prosecutors working for Mr. Starr [likely including Kavanaugh] developed a draft indictment of Mr. Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules.

Kavanaugh, as senior counsel, almost certainly participated in the development of the draft indictment of Bill Clinton.

In 1974, the Watergate special counsel, Leon Jaworski, had also received a memo  from his staff saying he could indict  president Richard M. Nixon, while he was in office, and later made that case in a court brief.

Andrew Crespo at Lawfare Blog has analyzed, Is Mueller Bound by OLC’s Memos on Presidential Immunity?:

The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment.

By contrast, two different memos—authored by the Office of Special Counsel investigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion.

That these different offices have repeatedly disagreed on this central question isn’t really all that surprising. They have different institutional roles, different missions, and different cultures, all of which might impact their respective approaches to the issue. For present purposes, however, the most important practical question is whether the current special counsel, Robert Mueller, is free to exercise his own independent judgment on the immunity issue, or whether he is instead bound to follow OLC’s take. If it’s the latter, then those two OLC memos would together constitute the single greatest shield protecting President Trump from prosecution: No matter how strong the evidence against him may become, if OLC’s memos are binding then the President simply cannot be indicted until after he leaves office—by which point, it bears noting, the statute of limitations for any relevant conduct may well have expired.

But that’s only if OLC’s memos are binding.  Jack Goldsmith and Marty Lederman take the view that they “almost certainly” are. The New York Times, by contrast, has twice indicated that the issue may not be so clear cut, each time citing a piece that I wrote expressing some early skepticism on this issue.

That skepticism may well represent a minority view, at least among those with substantial experience working with OLC—experience that Jack and Marty have, and that I do not. Still, even an outsider’s minority view merits an articulation of some of the main points in its favor.

To my mind, there are at least three such points here. First and foremost, the justifications underlying the general practice of treating OLC opinions as binding on executive branch officials do not necessarily apply to the Office of Special Counsel, which is supposed to be insulated from the influence of political appointees when assessing the president’s exposure to criminal liability.  Second, the formal regulations setting out the special counsel’s authority do not clearly compel him to follow OLC’s lead. And third, historical practice suggests that he need not do so.

Let’s take these three points in turn. [See the article for the lengthy analysis under each topic heading.]

I. When It Comes to Presidential Immunity, the Normal Reasons for Treating OLC Memos as Binding Do Not Necessarily Apply to the Special Counsel

II. The Special Counsel’s Governing Regulations Do Not Clearly Compel Him to Follow OLC Opinions

III. Historical Practice Supports Allowing the Special Counsel to Assess the Presidential-Immunity Issue for Himself

*          *          *

In sum, unique features of the specific OLC memos at issue here may well cut against the claim that Mueller is bound by them, and neither the regulatory text nor the history of the special counsel’s office requires a contrary conclusion.

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[This] serves to illustrate the central point: The existing OLC memos on presidential immunity, like the hypothetical one above, also function to some degree as de facto anticipatory pardons of potential criminal activity committed by a president, especially given the serious practical challenges that arise when a prosecution is delayed for too long. And the existing OLC memos, like the hypothetical one above, were also crafted by presidential appointees, at the behest of presidents facing genuine prospects of indictment—not by the special counsels whose entire purpose is to insulate presidential charging decisions from precisely such political influence. 

Perhaps the current special counsel, exercising the independent judgment that his predecessors embraced, would conclude that OLC is right and that a sitting president is in fact immune from indictment. There is a big and important difference, however, between agreeing with such a view and being forced to adopt it even if you think it’s wrong. The whole point of having a special counsel is to benefit from his independent judgment on precisely this sort of issue.

In a footnote, Andrew Crespo makes an important observation about those OLC memos:

It bears noting that the timing of OLC’s two immunity memos is somewhat curious.  According to the “Best Practices” memos written by the heads of OLC under two different administrations, “OLC generally avoids opining on questions likely to arise in pending or imminent litigation involving the United States as a party.” As Nelson Lund explains, that practice reflects the reality that “OLC does not serve as the mouthpiece for the Solicitor General or the litigating divisions” of the Department of Justice, which “will often defend” or advance a proposition in court “even if OLC would have advised against it.”  When the ball is in the litigating divisions’ court, in other words, OLC typically defers to their authority to articulate the position of the United States.  And when the litigation at issue is a potential criminal prosecution of the president of the United States, the relevant “litigating division” is the Office of Special Counsel.

Yet, in an apparent deviation from its articulated best practices, OLC issued the presidential-immunity memos in the thick of two separate pending cases. Indeed, the first memo actually contradicted the litigating position that Special Counsel Jaworski soon articulated on behalf of the United States to the Supreme Court. And the second opinion was prepared as the Office of Independent Counsel was considering a draft indictment of President Clinton, in a process that had also already generated litigation. The fact that OLC may have deviated from its ordinary best practices to issue these memos—thereby perhaps usurping the special counsels’ rightful authority to articulate the government’s litigating position—may be yet another reason not to treat the memos as binding.

As I said above, if you actually read the lengthy OLC memos in full, you will find that the OLC first found that a sitting president can be indicted irrespective of any impeachment proceeding by law, but then made a policy argument against the Department of Justice from doing so.

It would appear to be a policy argument that was influenced and motivated by a desire to protect the president whom they served.

The rule of law, however, supports the indictment of a president for criminal misconduct. Professor Tribe makes the point using Donald Trump’s braggadocio claim about shooting someone on Fifth Avenue.

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UPDATE: Marty Lederman, who teaches constitutional law at the Georgetown University Law Center and has twice served in the Department of Justice’s Office of Legal Counsel writes Would Indicting Trump Be Constitutional? Yes, it would be.

But it’s hard to imagine any United States attorney general allowing the Justice Department to prosecute the president while he’s in office. And in the unlikely event an emboldened state prosecutor moved to commence such a trial, the federal courts would likely postpone it until after the president’s term, as an accommodation to his singular constitutional responsibilities.

The more pertinent question, then, is whether a sitting president can be charged, even if the trial itself wouldn’t take place until after his term ends. The Office of Legal Counsel in the Justice Department acknowledged in 2000 that nothing in the text of the Constitution or evidence of the framers’ intent would preclude a grand jury indictment of a sitting president.

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The Justice Department has never disputed, for instance, that a grand jury could name a president as an unindicted co-conspirator — as it did with Richard Nixon in 1974 — even though the opprobrium of such a designation shouldn’t be materially more damaging than the stigma of a pending indictment.

Moreover, as Justice John Paul Stevens wrote for eight members of the Supreme Court in the Paula Jones case in 1997, which permitted a sexual harassment suit against President Bill Clinton to go forward while he was in office, the possibility that federal judicial proceedings “may significantly burden the time and attention of the chief executive” isn’t sufficient to establish a constitutional violation. If that’s the case in the context of an embarrassing civil suit, it’s hard to see why the looming shadow of criminal charges — especially for conduct that occurred before the president assumed office — would have a more acute functional impact that crosses some constitutional line.

Therefore, if there ever were an extraordinary case in which immediate charges were essential — in particular, if a president committed a heinous crime that demanded justice and he refused to waive what might otherwise be an effective statute-of-limitations defense — the attorney general should overrule the Office of Legal Counsel’s conclusion that the Constitution categorically prohibits an indictment during a president’s term. (Although I worked at the Office of Legal Counsel in 2000, I had no involvement in that opinion.)

Even so, an indictment during Mr. Trump’s presidency remains extremely unlikely, at least in a case where a trial remains viable after he leaves office. Mr. Mueller and the attorney general overseeing him would almost surely calculate that the costs to the nation would exceed the benefits of bringing charges during the president’s term, and therefore urge the grand jury to hold off on taking the final step until Mr. Trump’s presidential tenure has ended.

This doesn’t mean, however, that a criminal investigation of Mr. Trump’s possible wrongdoing is pointless. To the contrary. For one thing, a grand jury would be well within its rights to examine the evidence while it’s fresh in order to determine whether to bring charges against Mr. Trump after he leaves office (or perhaps to issue an indictment that would remain sealed until then). And even if Mr. Mueller chooses not to bring charges, he might have good reason to report any wrongdoing to Congress for its consideration (and to the public, assuming classified information is not an issue).

UPDATE: Asha Rangappa, a senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former FBI agent, writes at the Washington Post, Mueller should try to indict Trump. It would guarantee his report goes public. (excerpt):

If, at the end of his inquiry, Mueller believes that he has gathered enough evidence that would warrant charging Trump with one or more crimes, he can provide that evidence in his final report to the attorney general, along with a recommendation that the president be indicted. The attorney general could approve that recommendation, in which case such an indictment would become public (with its constitutionality litigated in court). But the attorney general could just as legitimately deny the requests based on the internal 1973 policy that suggests an indictment is “inappropriate and unwarranted under established Departmental practices.”

But this action would automatically trigger the reporting requirement to Congress.

In fact, that might be the only way to guarantee a report goes to Capitol Hill. There is no other requirement for the attorney general to provide Mueller’s final report to Congress — the regulations only require reports on requests that are denied. If Mueller does not recommend indicting the president and the attorney general agrees with that decision, there is no guaranteed mechanism for that information to become public.

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Precisely because the only remedy might ultimately be a political one — impeachment and removal by Congress — Mueller must ensure that the fruits of his investigation don’t get buried. In 1974, Watergate special prosecutor Leon Jaworski faced a similar predicament when he uncovered evidence of crimes committed by then-President Richard M. Nixon. His solution was to pass off his findings to Congress and create a “road map” for potential impeachment proceedings. By recommending an indictment that will be overruled, Mueller could likewise automatically pass the baton to Congress and allow the political process to pick up when the criminal process can go no further.

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