The Two Memos With Enormous Constitutional Consequences

One conclusion is apparent following Donald Trump’s four years in office: A sitting president is perhaps the only American who is not bound by criminal law, and thus not swayed by its disincentives.

What’s astonishing is that this immunity has no grounding in actual law. It’s not in the Constitution or any federal statute, regulation, or judicial decision. It is not law at all.

Instead, the ban on the indictment of a president rests on an internal personnel policy developed by the Department of Justice under two harangued presidents: Richard Nixon and Bill Clinton. In essence, the policy directs federal prosecutors to stand down when it comes to criminally charging a president. This is a dangerous state of affairs, and Congress must eradicate this policy with legislation—and it must do so soon, in case Trump does run for another term.

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In the American system of separated powers, “Can the president do that?” is the wrong question. The right question is “If he does that, what’s the consequence?” The answer to the latter must lie in one or both of the other two branches: Congress, through impeachment and removal, or the federal judiciary, through indictment and trial.

Impeachment and removal are clearly not working as a check on criminal abuses in the Oval Office. That leaves the courts. But courts can hear only cases brought to them; the federal criminal docket is exclusively populated by federal prosecutors. And their ultimate boss—the president, through the executive-branch chain of command—won’t let them bring cases against a sitting president.

In effect, the DOJ memoranda excise the judicial branch from the work of addressing criminal conduct in the White House—with no clear constitutional authority to do so. (I explain this in detail in a recent law-review article.)

So what does the actual law say about prosecuting a sitting president? Not much. Under the landmark decision Marbury v. Madison, the federal courts have the authority to resolve constitutional ambiguities and clarify what the law is. That hasn’t happened on this issue.

Congress has constitutionally delegated powers to create federal agencies, including the DOJ; to define the federal courts’ jurisdiction; and to pass legislation. But Congress has not passed a law immunizing a sitting president from the ambit of federal criminal laws.

What Congress has done is authorize the DOJ to pass regulations, which to date include the standards governing the appointment and authority of special prosecutors such as Robert Mueller, who was tasked with investigating Russian interference in the 2016 election. But the DOJ has promulgated no regulations bearing on indictment or non-indictment of a sitting president.

Rather, what the country has guiding it is a pair of memoranda, written by an elite group of constitutional lawyers within the DOJ known as the Office of Legal Counsel (OLC), which say that indicting a sitting president is unconstitutional. To be sure, OLC opinions are routinely given great weight within the federal government; this is not unusual. The White House cannot ask sitting federal judges to prejudge thorny legal issues—their jurisdiction is confined to live cases and controversies under Article III of the Constitution. So the OLC functions to provide legal advice to “clients” within the executive branch; in the question of presidential immunity, that means the president himself. For regular people, lawyers’ advice is not binding unless a court or legislature agrees, but the OLC immunity memos have garnered a constitutional-esque quality—one they do not deserve.

The OLC’s justifications for its presidential-immunity recommendation are pretty thin. The memos conclude that the impeachment remedy “could not itself be said to be the basis for a presidential immunity from indictment or criminal trial.” They also don’t suggest that impeachment requires proof of a criminal offense. The OLC thus implicitly acknowledges that there is a distinct role for the criminal-justice system in holding presidents accountable, and expressly acknowledges “that the President is not above the law, and that he is ultimately accountable for his misconduct that occurs before, during, and after his service to the country.” (Indeed, Trump’s lawyers in his second impeachment trial—as well as former Senate Majority Leader Mitch McConnell, in his speech explaining his vote to acquit on technical procedural grounds—underscored criminal prosecution as the proper mechanism for addressing Trump’s role in the January 6 insurrection.)

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Lacking concrete law for guidance, the OLC manufactured de facto presidential immunity based on a normative judgment “that the burdens of criminal litigation would be so intrusive as to violate the separation of powers.” First, the OLC lawyers argued in 1973 that “a President’s status as defendant in a criminal case would be repugnant to his office of Chief Executive,” that his pardon power could “make it appear improper that the President should be a defendant in a criminal case,” and—most notably—that waging a criminal defense “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.”

But today’s digitally driven political environment offers a compelling reason to reject that assumption, if it even made sense 48 years ago; avoiding legal distractions can no longer support the DOJ’s unilateral gloss on the Constitution to immunize presidents from criminal scrutiny. After all, the Supreme Court held in 1997 that President Clinton’s sitting for a deposition in a civil suit over conduct that allegedly occurred prior to his taking office wasn’t sufficiently distracting to require that the plaintiff, Paula Jones, wait until his term was over before pressing her lawsuit. After four years of Trump, moreover, the presidency withstood a special-counsel investigation, two impeachments, and numerous criminal investigations. Distraction from presidential duties is a slender reed on which to justify removing the judicial branch from the task of presidential oversight.

In 2000, the OLC updated its analysis to draw a distinction between civil and criminal legal distractions, arguing that the latter were uniquely unpalatable. A criminal sentence “would make it physically impossible for the President to carry out his duties,” it surmised. Moreover, “the public stigma and opprobrium occasioned by the initiation of criminal proceedings … could compromise the President’s ability to fulfill his constitutionally contemplated leadership role.” Lastly, the OLC argued, “the mental and physical burdens of assisting in preparation of a defense … might severely hamper the President’s performance.”

The Trump presidency whisked away each of these normative hesitations. Rejection of stigma and opprobrium was a hallmark of his presidency, and the Republican Party is hardly in the business of demanding accountability for Trumpian abuses of power. Moreover, the specter of a president in jail should not proscribe investigation and indictment in the first instance.

If Congress doesn’t act, arguably the courts could. In a decision written while he was a judge on the U.S. Court of Appeals for the D.C. Circuit, now-Justice Brett Kavanaugh invoked a rare judicial remedy to force government officials to do their jobs. In In re: Aiken County, the plaintiffs sought a writ of mandamus requiring the Nuclear Regulatory Commission to process an application for a license to store nuclear waste at Yucca Mountain, in Nevada, under the Nuclear Waste Policy Act. Over the dissent of then-Judge Merrick Garland, Kavanaugh ruled that the case raised “significant questions about the scope of the Executive’s authority to disregard federal statutes,” as “the President may not decline to follow a statutory mandate … simply because of policy objections.”

The OLC memos are likewise mere policy objections to the criminal scrutiny of a sitting president. If America is going to have a system of separated powers with presidential accountability to the people, the memos must no longer be treated as binding.