Today, Special Counsel Robert S. Mueller III said in his remarks that a sitting president cannot be charged with a federal crime while in office. This comes from a legal opinion issued by the Justice Department’s Office of Legal Counsel (OLC) in 2000.
But the OLC's opinion is not the final word on whether a sitting president can or cannot be indicted. As legal counsel to the executive, OLC is naturally biased in favor of helping its client achieve its goals through legal analysis.
Congress should investigate the legal presumption laid out by the OLC opinion that the president is above the law, especially in obstruction cases that involve their administration. While Mueller has implied that he will not testify before Congress, it’s up to the Congress to decide who it hears from on this matter.
If Congress disagrees with the current Justice Department position, it should take action. For example, Congress could amend Chapter 73 of Title 18 of the U.S. Code to make absolutely clear that all U.S. persons are prohibited from influencing, interfering with, obstructing, or tampering with federal law enforcement proceedings and potential parties, jurors, witnesses, victims, and sources of information in any active federal investigation.
Danielle Brian, executive director of the Project On Government Oversight, stated:
“When it comes to preserving the rule of law and our constitutional system of checks and balances, the Office of Legal Counsel is not the final word and we should not treat it as such. Congress should further investigate to determine whether the ten instances of possible obstruction of justice are or are not impeachable offenses. The President is not above the law.”