A Sitting President Can Lawfully be Indicted

Reporters, political analysts, and legal commentators are all singing from the same sheet of music on the issue as to whether a sitting president can be indicted, tried, and jailed while in office. They all state that there is an existing Department of Justice “policy” that prevents the indictment of a sitting president and that Robert Mueller and Rod Rosenstein must adhere to such a policy. This is completely untrue.

Commentators are not reporting or explaining that the purported “policy” is comprised of two non-binding opinion memos that Mueller himself can disagree with and disregard. The opinion memos do not legally constitute a “policy” of the DOJ. In fact, the opinion memos merely sat on someone’s desk at DOJ and were never adopted or formally stated to be a “policy” of DOJ.

Because the media believes that there is a DOJ policy that governs, there is no public debate, consideration, or analysis as to whether the opinions are legally weak and should not be followed.  There are other opinions that contain a proper analysis of the Constitution, concluding that a sitting president can of course be prosecuted while in office.

The two existing opinions, written by the Office of Legal Counsel of the Justice Department in 1973 and 2000, each carry the title “Memorandum Opinion”. The OLC Opinions are just that: opinions, and nothing more. The federal regulation that created the OLC states that such Opinions are “rendered . . . to the Attorney General . . . on questions of law arising in the administration of the Department”. But there is simply no legal requirement that OLC Opinions must be adopted by the Attorney General. In fact, there are other offices within the DOJ that exist to set “policy” of the DOJ (e.g., the “Office of the Assistant Attorney General for Administration” and the “Office of Legal Policy”).

Federal courts have repeatedly ruled that Opinions of the OLC are not DOJ “policy”. As such, OLC Opinions offered to the Attorney General for consideration are not binding upon the Attorney General. (here, Rosenstein is Acting Attorney General vis a vis the Special Counsel’s investigation). Moreover, the DOJ itself has made this clear. The number three official in the DOJ wrote a letter — quoted by a DC court — stating that OLC Opinions are only “pre-decisional legal advice . . . [that] constitute neither ‘final opinions . . . made in the adjudication of cases’ nor ‘statements of policy [that] have been adopted . . .’” Federal courts have so ruled, finding that such opinions are nothing more than legal advice and not a final position or “policy” of the DOJ.

Therefore, the Attorney General is free to formulate his or her own opinion on an issue where OLC has offered its advice. Clearly then, the decision as to whether President Trump can be indicted and prosecuted while in office lies solely within the discretion of the Attorney General, who is not bound by the two prior Opinions.

But here, for this investigation, we have an independent / appointed Attorney General: Special Counsel Mueller. So the question naturally arises: does Mueller need to seek Rosenstein’s or the DOJ’s approval to indict? Simply stated, no. The DOJ regulation and the Order under which Mueller was appointed only requires Mueller to comply with the “rules, regulations, procedures, practices and policies” of the Department of Justice. As stated here, there is no DOJ “policy” to comply with, nor are there any applicable rules, regulations, procedures, or practices as to the indictment of a sitting president that would prevent his prosecution while in office.

The Regulation grants the Special Counsel a degree of independence. This independence is needed because of the very reason for the appointment of a Special Counsel in the first instance; i.e., there are apparent conflicts of interest in having a president’s own employees at DOJ evaluate his potential criminality. The Regulation states that Special Counsel (Mueller) can solely “determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities”.

Thus, Mueller can proceed with a criminal prosecution of President Trump without seeking DOJ prior approval. And to make it even more clear, the specific duties and responsibilities of Mueller, as Special Counsel, are specified in the language of the Order appointing him. The Order states that “the Special Counsel is authorized to prosecute federal crimes arising from the investigation of . . . any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”. And the Order, the Regulation, and the Obstruction of Justice statute make clear that Special Counsel Mueller can also prosecute anyone who even attempts the hinder, delay, or obstruct the investigation.

Therefore, political and legal analysts are all singing the wrong song. Mueller may be poised to surprise them – creating shock and awe – by indicting President Trump in the near future.