DOJ Opinions are Legally Wrong: There is No Immunity Protecting a President From Prosecution While In Office

In a March 4, 2019 article posted on this blog, I explained why Robert Mueller does not need to follow two prior opinion memos in the Department of Justice written in 1973 and 2000 by the DOJ’s Office of Legal Counsel (OLC).  Those OLC Opinions contend that a sitting president cannot be prosecuted while in office. It is within Mueller’s discretion, however, to either agree or disagree with those Opinions, and he need not seek the concurrence of DOJ / Rod Rosenstein.

This article explains why Mueller should disagree with those weak and unsubstantiated Opinions and indict and prosecute the president if there is proof that he committed crimes.  There is no constraint as to the type of crimes, whether they are related or unrelated to Russia, and whether they were committed before he took office or committed while in office.

The two OLC opinion memos agree, as they must, that the Constitution specifically indicates that a president can be criminally prosecuted in a court of law for crimes he commits. The Opinions concede that “no one is above the law” and that the Supreme Court took that approach in ordering President Nixon to comply with a criminal subpoena. However, to justify a conclusion that a prosecution would need to take place after a president is no longer in office, the Opinions stray from the rules as to how to properly interpret the Constitution.

The Opinions’ authors, political appointees writing in 1973 and 2000, seeking to protect their bosses (Nixon and Clinton), rely on vague concepts that are not in the Constitution itself. They tried to weave a complex tapestry, claiming that there is – or should be – a presidential “distraction” doctrine. They argue that the distraction caused by prosecuting a president while in office would disable the entire executive branch of government.

The most glaring problem with their fabricated distraction doctrine is that their hypothesis is not based upon any language of the Constitution, the history of the enactment of the constitution, or any other federal law. They just made it up, trying to intertwine their distraction concerns with legal concepts such as the “implied doctrine of separation of powers”.

The Supreme Court has always held that the Constitution should be interpreted: (1) based upon the plain meaning of its text, (2) any relevant history as to its debate and drafting process, if needed to elucidate any ambiguity in the text, or (3) with reference to the structure of the three branches of government, as set out in the Constitution itself. The Opinions fail to follow these rules.

Despite this command of the Supreme Court, the OLC Opinions claimed that the provision in the Constitution is vague on the timing of a criminal prosecution of the president – when it is not – so that they could stray beyond the clear and simple four corners of the Constitution’s pages to develop their distraction theory. In fact, the OLC admitted that the Constitution’s language did not preclude a criminal prosecution before an impeachment.  And if there is a criminal prosecution before impeachment, then obviously that prosecution would be while the president is still in office. However, the Opinions argued that a prosecution could come first only if it was a prosecution of any officer in the government, other than the president. The Opinions concede that every single federal official can be indicted and prosecuted while in office, including the Vice-President. In their view — despite conceding that the President is not above the law — is simply to be treated differently than everyone else. The OLC was not legally permitted to make this distinction, not found in the words of the Constitution or in any other federal law. Therefore, their entire Opinions are based upon an unlawful process of Constitutional interpretation.

The Constitution states:

“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”.

The Opinions’ authors concede – as they must – that this provision simply means that a president is not above the law and can be indicted and prosecuted.  They also concede that the words do not state that impeachment must happen first, and then a criminal prosecution second. They also admit that there is nothing in the debates of the Framers leading up to the adoption of the Constitution that supports their distraction hypothesis.

Despite the clarity of the Constitution itself, the authors consider the above quoted provision as somehow vague, needing further interpretation. And while employing their unlawful approach to “interpretation” of the Constitution, they end up concluding that there is a temporary immunity while a president is in office – based upon their fabricated distraction theory – and that a prosecution can only happen after a president is no longer in office. Of course, there is no language in the Constitution or any relevant history that authorizes their interpretation.

An impeachment trial would pose the same distraction problem, yet the Founders, when writing the Constitution, made it clear that a president would need to face an impeachment trial in the Senate while in office, knowing that the distraction would be just as intense as a criminal trial. The Opinions have no real answer to that inconsistency regarding their proposed – and fabricated – distraction doctrine.

The authors of the Opinions also note that the Vice President, under the 25th Amendment, would assume the office of president during any period that a president could not serve (such as during a period of intense distraction). The Opinions also have no valid answer for the Constitution’s simple solution to their distraction concern.

The 2000 Opinion also could not credibly argue against the Supreme Court’s decision in the Clinton v. Paula Jones case in which the Court rejected the notion that President Clinton could not participate in a lawsuit while president, due to distraction concerns. The Supreme Court clearly rejected the distraction argument, which was the central issue in the case.  The 2000 OLC Opinion, however, made a strained argument that the Clinton case does not apply because the Clinton case was civil rather than criminal. That is not a critical difference that would make the Supreme Court Decision inapplicable here.

Therefore, there is no need to go beyond the clause of the Constitution, quoted above. Any contrary meanderings into vague, general concepts as to the separation of powers and fanciful “doctrines” are unlawful methods of Constitutional interpretation.

Mueller and his staff can formulate and apply their own legal opinion as to the timing for an indictment and prosecution of a president.  And if that opinion is that the Office of the Special Counsel can indict the president now, Mueller can lawfully and constitutionally proceed to prosecute, if evidence of crimes has been discovered.

This analysis also means that any other federal prosecutors, such as in the Southern District of New York or in the District of Columbia, can also indict the president if they uncover evidence that he committed crimes that are within their scope and not within Mueller’s jurisdiction.