Kara Sears
The indictment of a sitting president is a complex issue. While the U.S. Constitution does not explicitly prohibit indicting a sitting president, the Justice Department has a long-standing policy, reaffirmed in 2000, that a sitting president is constitutionally immune from criminal prosecution. This policy is based on the argument that criminal charges against a sitting president would violate the constitutional separation of powers and undermine the capacity of the executive branch. However, this policy has faced challenges and criticism, with some legal experts arguing that special counsels or prosecutors may deviate from it in extraordinary circumstances. The question of indicting a sitting president has gained prominence during the Trump and Biden administrations, with discussions around investigating and prosecuting potential crimes.
| Characteristics | Values |
|---|---|
| Official policy of the Justice Department | Presidents can't be prosecuted |
| Basis for policy | Structural intuitions and extrapolation from Supreme Court precedent |
| Implication | No federal prosecutor can prosecute a sitting president |
| Reasoning | Criminal indictment and prosecution would incapacitate the presidency |
| Alternative options | Impeachment or the 25th Amendment |
| Exception | Extraordinary circumstances with the approval of the U.S. attorney general |
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What You'll Learn
- The Supreme Court has not ruled on presidential immunity from prosecution
- The Office of Legal Counsel's interpretation of the Constitution
- The Justice Department's rule against indicting a sitting president
- The 1973 and 2000 memos' binding nature on Justice Department employees
- The possibility of deviation from department policy in extraordinary circumstances
The Supreme Court has not ruled on presidential immunity from prosecution
While the Supreme Court has not explicitly ruled on presidential immunity from prosecution, it has asserted that former presidents can be immune from criminal liability for their official acts. This immunity also extends to some "core" acts, including attempts to use the Justice Department to obstruct election results. The Court's ruling on this matter has sparked concerns about shielding presidents from accountability and undermining democratic values.
In the case of former President Trump, the Supreme Court determined that he is at least presumptively immune from prosecution for his official actions, even if they were undertaken for personal or criminal purposes. This decision has been criticized for potentially setting a precedent that places presidents above the law and obstructing accountability. However, it is important to note that the Court's ruling does not provide blanket immunity to presidents, as it differentiates between official and unofficial acts.
The determination of whether an act is official or unofficial can be challenging, and courts cannot consider the president's motives in this inquiry. While the Supreme Court has not directly addressed the immunity of sitting presidents, the Department of Justice maintains that a sitting president cannot be prosecuted. This stance is based on the belief that criminal indictment, prosecution, and punishment would incapacitate the presidency, which is considered unconstitutional.
The Office of Legal Counsel (OLC) within the Department of Justice interprets the Constitution as providing immunity to sitting presidents from prosecution. This interpretation stems from the understanding that incapacitating the sitting president is unconstitutional, and the only legal means to do so are impeachment or the 25th Amendment. However, it is important to note that this interpretation has been questioned and debated by legal scholars and experts.
The Supreme Court's rulings and the Department of Justice's stance on presidential immunity from prosecution have significant implications for holding presidents accountable for their actions. While the Court has not directly addressed the immunity of sitting presidents, its decisions and the Department of Justice's policy create a complex landscape that influences how presidents can be held accountable during and after their time in office.
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The Office of Legal Counsel's interpretation of the Constitution
The Office of Legal Counsel (OLC) in the Department of Justice interprets the Constitution as providing immunity to a sitting president from criminal indictment and prosecution. This interpretation stems from the belief that criminal indictment, prosecution, and punishment would effectively incapacitate the presidency, rendering the president unable to function and potentially leading to policy changes aimed at currying favour with the public.
The OLC's interpretation of the Constitution is based on the principle of separation of powers, arguing that indicting and prosecuting a sitting president would "unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." This interpretation has been reaffirmed in memos issued in 1973 and 2000, stating that a sitting president is "constitutionally immune" from indictment and prosecution.
The OLC's position is not without controversy, and some legal experts have suggested that special counsels or independent counsels may deviate from this policy in "extraordinary circumstances" with the approval of the US Attorney General. Additionally, the OLC has stated that the vice president can be prosecuted while in office, indicating a distinction between the president and other executive branch officials in terms of immunity from prosecution.
While the OLC's interpretation of the Constitution has been a longstanding policy within the Department of Justice, it is essential to note that the Supreme Court has never explicitly held that a president is immune from criminal prosecution. The OLC's interpretation is based on their reading of the Constitution and the potential impact on the functioning of the executive branch.
In conclusion, the Office of Legal Counsel's interpretation of the Constitution regarding the indictment of a sitting president is based on concerns of executive incapacitation and the separation of powers. This interpretation has had a significant impact on the Department of Justice's approach to sitting presidents, even though it does not represent a definitive legal ruling on the matter.
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The Justice Department's rule against indicting a sitting president
This interpretation was first made in the 1970s and has been reaffirmed multiple times since, including in a 2000 memo that stated criminal charges against a sitting president would "violate the constitutional separation of powers." The memo concluded that indicting or prosecuting a sitting president would "undermine the capacity of the executive branch to perform its constitutionally assigned functions." This rule is binding on Justice Department employees, including special counsels investigating the president, as they control all federal prosecutors.
However, some legal experts argue that this rule is not absolute. They point to the Justice Department regulations that allow for deviations from department policy in "extraordinary circumstances" with the approval of the US Attorney General. Additionally, there is debate over whether independent counsels, such as Mueller, are bound by the 1973 and 2000 memos, as they are not typical employees of the department.
Despite these differing interpretations, the official Justice Department policy remains that sitting presidents cannot be prosecuted, and therefore no US attorney will ever indict or prosecute one. This rule does not prevent investigations or the gathering of evidence, but it does create a practical challenge for prosecutors, as seen in the cases of Hillary Clinton and Donald Trump.
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The 1973 and 2000 memos' binding nature on Justice Department employees
The 1973 and 2000 memos are binding on Justice Department employees, including Mueller, according to many legal experts. Mueller was appointed in May 2017 by the department's second-ranking official, Rod Rosenstein. However, some lawyers have argued that the nation's founders could have included a provision in the Constitution shielding the president from prosecution, but they did not, implying that an indictment would be permissible. According to this viewpoint, presidential immunity violates the fundamental principle that no one is above the law.
The 1973 memo was issued by the Justice Department's Office of Legal Counsel (OLC) during the Watergate scandal involving President Richard Nixon. The memo asserted that a sitting president could not be indicted, a position that was reaffirmed in the 2000 memo. The 2000 memo concluded that intervening court decisions had not altered the original determination that a sitting president is "constitutionally immune" from indictment and prosecution. It maintained that criminal charges against a president would violate the separation of powers between the executive, legislative, and judicial branches of the US government.
The OLC's position has been that while the vice president can be prosecuted while in office, the president cannot. They contend that if the president cannot be arrested, they cannot be indicted, prosecuted, or punished. This stance has been reiterated multiple times since the 1970s and remains the official Justice Department policy. As a result, no US attorney will indict or prosecute a sitting president.
However, there are differing opinions on the matter. Some legal experts argue that Mueller, as a special counsel, may not be bound by the 1973 and 2000 memos due to his unique role. Additionally, the Supreme Court has never explicitly ruled that a president is immune from prosecution. While the OLC's interpretation of the Constitution suggests that indictment and prosecution would incapacitate the presidency, critics argue that this interpretation violates the principle that no one is above the law.
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The possibility of deviation from department policy in extraordinary circumstances
While there is no explicit law stating that a sitting president cannot be indicted, the Justice Department has a long-standing policy that asserts a sitting president cannot be prosecuted and, therefore, cannot be indicted. This policy is based on the premise that criminal indictment, prosecution, and punishment would incapacitate the presidency, which is deemed unconstitutional. The Department of Justice argues that the only legal means to incapacitate the president are impeachment or the 25th Amendment.
However, the possibility exists for deviation from this department policy in extraordinary circumstances. The Justice Department regulations governing special counsel appointments allow for deviation from standard policy with the approval of the US Attorney General. This exception can be invoked if serious wrongdoing is uncovered, and there is a lack of confidence in Congress's ability to hold the president accountable.
The 1973 and 2000 memos that affirm the policy of not indicting a sitting president are considered binding on Justice Department employees. Still, some lawyers argue that these memos may not be binding on special counsel or independent counsel investigating the president. For example, Ken Starr, who investigated President Bill Clinton in the 1990s, did not consider the 1973 memo binding and conducted his own analysis of whether a sitting president could be indicted.
The potential for deviation from department policy in extraordinary circumstances adds a level of flexibility to the Justice Department's approach. It allows for the consideration of unique or exceptional circumstances that may warrant an exception to the general policy of not indicting a sitting president. However, the decision to deviate from policy rests with the US Attorney General and requires a careful assessment of the specific circumstances and the potential impact on the presidency and the constitutional separation of powers.
While the possibility of deviation exists, it is important to note that the decision to indict a sitting president would be a significant and rare occurrence. The Justice Department must consider the practical implications of indicting a sitting president, including the potential impact on the functioning of the executive branch and the precedent it would set for future cases.
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Frequently asked questions
The Department of Justice, which controls all federal prosecutors, says that a sitting president is constitutionally immune from indictment and criminal prosecution. The Office of Legal Counsel in the Department of Justice believes that criminal indictment, prosecution, and punishment would incapacitate the presidency, and that it is unconstitutional to incapacitate a sitting president.
The Office of Legal Counsel believes that the only means by which the president can be legally incapacitated are impeachment, which removes the president from office, or the 25th Amendment, which sidelines an incapacitated president.
Yes, while a sitting president cannot be prosecuted, they can be investigated, and evidence of a crime can be gathered.
