This piece originally appeared on Just Security.
Can a sitting president be indicted? The public should be skeptical of the argument that a president can’t be, which frequently relies on two opinions by the Justice Department’s Office of Legal Counsel (OLC). This office, in part through its opinions, provides legal advice to the executive branch. As legal counsel to the executive, OLC is naturally biased in favor of helping its client achieve its goals through legal analysis. Media coverage of this important question concerning presidential immunity, however, has largely failed to question the underlying rationales found in those OLC memos. And when it comes to preserving the rule of law and our constitutional system of checks and balances, OLC is not the final word and we should not treat it as such.
The plain fact is that OLC, responsive to its own institutional incentives, sometimes gets things wrong. Its opinions legitimizing the CIA’s torture program were later withdrawn because of errors. Its opinion that federal courts could not hear appeals from prisoners held at Guantanamo Bay was later rejected by a 2008 Supreme Court decision. Its opinion allowing government agencies to ignore requests for information from individual members of Congress was disavowed by the Trump administration at the urging of Senator Chuck Grassley (R-IA). Its opinion supporting warrantless mass surveillance absent any congressional or judicial approval was refuted by a later OLC opinion. And its opinion saying Congress cannot give federal employees whistleblower rights to provide the legislative branch with classified information was found unpersuasive by Congress.
(We don’t know how many OLC opinions would hold up to scrutiny, given the fact that many are kept secret. Right now, we at the Project on Government Oversight are in the process of challenging the OLC for withholding even the titles and dates of several recent unclassified opinions, which were redacted in response to our Freedom of Information Act request last year.)
There are reasons to believe OLC might be wrong about presidential indictments, too. The office’s legal analysis largely relies on the assertion that a criminal indictment is so burdensome that a president subject to one would not be able to fulfill the constitutionally assigned duties of the office and therefore cannot be indicted. To follow the opinion’s logic further, one could argue that any legal process that has the potential to substantially distract the president from his duties runs the risk of being unconstitutional. More specifically, as former White House Counsel Bob Bauer recently put it when discussing one of the OLC memos, the mere stigma related to the special counsel’s investigation would also harm the president’s ability to lead the nation:
…if the special counsel submits to the Deputy Attorney General a damning conclusion about the president’s conduct, and Rosenstein elects to disclose it “in the public interest,” the public will know that, absent the special immunity crafted by OLC, the president would have been indicted. It is difficult to see how the president will have been spared to any significant degree the “stigmatization” and distraction that OLC believed would follow from indictment.We agree with Bauer’s prediction that the likely outgrowth from the special counsel’s report would be a nearly endless series of distractions, as indictments, pleas, and trials of related parties ensue, ensnaring the president’s responsibility for the welfare of the country in its crosshairs.
With this reality in mind, the arguments presented in the OLC memos immunizing the president from indictment would do little to quell the disruption to the office of the president. What would remain, however, is the appearance that the president is the most important constitutional role in our system and therefore must be protected even at the expense of the rule of law.
The Supreme Court has held that a sitting president can be subject to lawsuits for actions unrelated to their official duties—even though these can also be time-consuming. In its decision in Clinton v. Jones, the high court held that just because a legal case “may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution” if the case is brought. Moreover, one non-public OLC opinion notes that presidents have been subpoenaed to testify before grand juries since the days of Thomas Jefferson.
Regardless of whether the OLC opinions at the heart of this conversation are sound legal interpretation, we firmly reject the notion that the office’s interpretation is the final word on the matter.
There may be countervailing concerns supporting presidential immunity from prosecution—but is it appropriate for executive branch lawyers get the last say on the question? To uncritically accept OLC’s opinion is to argue that the president can be above the law in certain circumstances, contrary to the principles of our system of government. Should that view—with its profound implications—prevail without an independent body, such as a court, publicly weighing in?
Our courts operate quite differently from the other two branches of government, with each side presenting legal and factual arguments before an independent tribunal that is beholden to the Constitution and not to a voting constituency or client. Accordingly, the public should remember that the third branch is a far more credible and independent venue for rendering a verdict on the proper balance of the competing legal equities at stake here than an office, headed by a presidential appointee, that has functioned as a legal enabler of the White House, even if in good faith. Because the judicial branch makes great effort to constrain its decision-making by only deciding “cases or controversies,” the courts have not yet examined the legality of President Trump’s claim (or that of any of his predecessors) that he cannot be subpoenaed or indicted while in office.
We may be fast approaching a reckoning on the limits of the president’s immunity from prosecution that will appropriately be reserved for the courts to decide, when the time comes. For now, it’s an open question. But to treat an executive branch memo which does not have the force of law as a final statement on the matter turns our system of checks and balances on its head.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.