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WASHINGTON — Special Counsel Robert Mueller devoted a good chunk of his brief, and presumably only, public press conference Wednesday to explaining why he didn’t, or rather, couldn’t charge President Trump with a crime.
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It boils down to a Watergate-era memo from 1973 written by the DOJ’s internal Office of Legal Counsel, or OLC. That memo concluded that charging a sitting president with a crime would unduly interfere with the functioning of the entire executive branch.
Indeed, to do so, Mueller said, would be “unconstitutional.”
The thing is, plenty of legal experts don’t actually buy that argument. They say the policy, and the memo from which it was born, represent an overly creative interpretation of the Constitution and probably wouldn’t hold up if challenged in the Supreme Court.
“There’s nothing in the Constitution that says directly that a president can’t be indicted,” said Ric Simmons, professor of law at the Ohio State University Moritz College of Law. “I think Mueller’s hands were tied. But there’s another question: Is the memo correct? I think it’s not.”
The question is far from academic. If not for that DOJ policy, Trump could easily have been charged with obstruction of justice based on the findings in Mueller’s final report, according to a public letter signed by over 1,000 former prosecutors.
And at least one candidate for president — Sen. Elizabeth Warren, Democrat of Massachusetts — has pledged to reverse the Nixon-era memo if elected.
Back to 1973
The memo was originally drafted by lawyers working for former president Richard Nixon’s Department of Justice in the midst of the Watergate scandal, during which Nixon himself was facing potential legal jeopardy.
“The president is the symbolic head of the nation,” Nixon’s DOJ declared. “The spectacle of an indicted president still trying to serve as chief executive boggles the imagination.”
Three decades later, the Office of Legal Counsel reaffirmed the decision once again at a moment when another president, Bill Clinton, was facing potential charges for lying under oath about having an affair.
“Every OLC opinion I’ve ever read, with one exception, has favored the executive over the legislative”
“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” the Clinton-era follow-up memo from the year 2000 said.
Yet both were drafted by an internal DOJ body — the Office of Legal Counsel — that has a long history of taking positions favorable to the expansion of power by its ultimate boss: the president.
“Every OLC opinion I’ve ever read, with one exception, has favored the executive over the legislative, or the executive over the courts,” said Paul Rosenzweig, a former member of Independent Counsel Ken Starr’s investigation into Clinton. “They are the apotheosis of the unitary executive view, the commander-in-chief authority.”
Rosenzweig said he doesn’t think the OLC opinion would withstand a court challenge.
He’s hardly alone. His former boss, Starr, told VICE News earlier this year that he also doesn’t agree with the memo’s conclusion.
“My own view is the president can be indicted, but that’s not the Justice Department’s view,” Starr said — while correctly predicting Mueller would follow DOJ policy anyway, and decline to do so.
The source of tension lies in the memo’s legal argument. The original 1973 memo acknowledges that nothing in the Constitution explicitly says the president can’t be charged with a crime. But it argues that the Constitution gives the president a job to do, and he should be allowed to do it — without having the threat of criminal prosecution standing in his way.
The memo concludes that “criminal proceedings against a president in office should not go beyond a point where they could result in so serious a physical interference with the president’s performance of his official duties that it would amount to an incapacitation.”
That conclusion, however, could easily be viewed differently by the Supreme Court, said Frank Bowman, author of the forthcoming book, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.
“The memo takes some reasonable inferences about how such an indictment would be troublesome for the president, and then spins them out into conclusions that aren’t supportable,” he said. “I’m not convinced the OLC memo was based on Constitutional grounds.”
Others have similarly argued that the conclusion is insupportable.
“I’m not convinced the OLC memo was based on Constitutional grounds”
In 1974, lawyers working for former Watergate prosecutor Leon Jaworski wrote a memo concluding that president Nixon could be indicted, although Jaworski decided to make Nixon an unindicted co-conspirator instead, alongside his formally-charged underlings.
In 1998, Starr got a law professor named Ronald Rotunda to draft a memo saying Clinton could be indicted while in office. But Rotunda cautioned that “it may be the case” that if Clinton were convicted, he might not be able to be sent to prison until “after he leaves office.”
The Supreme Court, has given some clues how they would view this memo. In a 1997 unanimous ruling, the court ruled that suing a sitting president in civil court is fair game.
But we may never see a similar courtroom challenge over the OLC policy.
Since a prosecutor working for the Department of Justice is forbidden by DOJ policy from charging the president, a legal dispute over a presidential indictment seemingly wouldn’t be able to get going in the first place, legal scholars said.
“There’s no means to challenge that opinion outside the Justice Department itself, and no means of compelling the department to change the rule if they don’t want to,” Bowman said.
Mueller’s view
In his brief remarks, however, Mueller appeared to endorse not just the DOJ policy, but also the OLC’s interpretation of the Constitutionality of indicting a sitting president.
“Under long-standing Department policy, a President cannot be charged with a federal crime while he is in office. That is unconstitutional,” Mueller said. “Even if the charge is kept under seal and hidden from public view — that too is prohibited.”
Mueller took the DOJ official position one step further — and argued that since he could not indict the president, it would be improper to say he broke the law.
“It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge,” Mueller said on Wednesday.
Yet that view, too, is up to debate — and has been disputed by Mueller’s boss, Attorney General William Barr.
Barr, who’s been criticized for misleading the public on the contents of the special counsel’s report, said this week he thought Mueller should have reached a decision on whether Trump’s behavior broke the law or not.
“The opinion says you can’t indict a president while he’s in office,” Barr told CBS News in an interview released Thursday. “But he could have reached a decision as to whether it was criminal activity.”
Because Mueller didn’t, Barr said, it was up to him and Deputy AG Rod Rosenstein, to reach their own decision. The rest, as they say, is history.
Cover: Special counsel Robert Mueller speaks at the Department of Justice Wednesday, May 29, 2019, in Washington, about the Russia investigation. (AP Photo/Carolyn Kaster)
