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From: Kathy Ruemmler_______________________________
Sent: 6/19/2018 5:30:40 PM
To: jeeyacation@gmail.com
Subject: Indicting a President Is Not Foreclosed: The Complex History - Lawfare
Importance: High
https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history
Indicting a President Is Not Foreclosed: The
Complex History
Can a sitting president be indicted? Often, in answering this question, commentators point to
Office of Legal Counsel (OLC) opinions answering in the contrary. To whatever extent the
writer agrees or disagrees with the opinions' conclusion, the government's position on the
matter is usually presented as a long-standing and clear "no."
The reality is more complicated. The United States has addressed this question six times in
both internal memos and briefs filed in litigation. And a review of these documents shows
that it is far from clear what criminal prosecution steps are (or should be) precluded___and
that there is no "longstanding policy" against indictment of the president. Consider the 1973
OLC memo stating that a sitting president should not be indicted. Far from being
authoritative, it was essentially repudiated within months by the Justice Department in the
United States' filing in the Supreme Court in United States v. Nixon.
Likewise, the most recent opinion___an OLC memo written in 2000___includes brief
statements that a sitting president should not be indicted even if all further proceedings are
postponed. But far from being definitive, this is a matter that could be reconsidered by the
department. Moreover, of course, OLC opinions are not binding on state prosecutors (though
state charges could raise federalism questions as well). The complex history of criminal
proceedings against presidents and vice presidents suggests that these issues are not
foreclosed.
Perhaps the most important point that emerges from a review of all the opinions is this: nly
once has the United States addressed the question of whether a president can be an
unindicted co-conspirator. The conclusion was an unequivocal yes. Richard Nixon was so
named in the Watergate indictment, and that inclusion was sustained by Judge John Sirica
and defended by the United States in United States v. Nixon. (The Supreme Court did not
resolve the question.) No department opinion or filing has ever contradicted that position.
The fact that it is permissible to name a sitting president as unindicted co-conspirator,
moreover, tends significantly to undermine the only argument against indicting a sitting
president.
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(I should note that the U.S. Attorney's manual cautions against naming persons as
unindicted co-conspirators "[in the absence of some significant justification." Here, of
course, the "significant justification" would exist if a sitting president is the only individual
in the country who is immune from indictment. Thus, for that individual alone, the usual
better course of indictment would not be available.)
Here I want to review each of the half-dozen times that the executive branch has addressed
the question of whether a president can be prosecuted, indicted or included as an unindicted
co-conspirator. The opinions that conclude that a president cannot be indicted deal mainly
with the question of whether a president can be put on trial. While the discussions of the
option of indicting but postponing trial are more than a mere afterthought, that option was
not the focus of the opinions and received scant analysis.
The relevant briefs and memoranda are:
1.
2.
3.
4.
5.
6.
The Sept. 24, 1973, OLC Dixon memo
The Oct. 5, 1973, brief for the United States in In re Agnew
The Feb. 12, 1974, memorandum to Independent Counsel Leon Jaworski
The June 21, 1974, reply brief for the United States in U.S. v. Nixon
The May 13, 1998, memorandum to Independent Counsel Kenneth Starr
The Oct. 16, 2000, OLC memorandum
These documents are worth review not only for their value as precedent but also for the
extensive argumentation they contain on the pertinent issues.
1. The Sept. 24, 1973, OLC Dixon Memo. This memo, signed by the head of the Office of
Legal Counsel, Robert Dixon, is a procedural anomaly: It was not addressed to any official
and may not have been made public at the time. It was not mentioned in the submission by
the solicitor general two weeks later in the In re Agnew case.
Dixon noted that there was no express provision of the Constitution conferring any
immunity upon the president. The "proper approach" he wrote, "is to find the proper balance
between the normal functions of the courts and the special responsibilities ... of the
Presidency." He concluded 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."
Thus, "a necessity to defend a criminal trial and to attend court ... would interfere with the
President's unique official duties."
Finally, Dixon addressed "a possibility not yet mentioned": that a sitting president could be
indicted but further proceedings could be deferred until he was no longer in office. Unlike
placing a president on trial, this would not result in a "physical interference" with the
president's duties. Nevertheless, the memo concludes that this step should not be taken
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because of the reputational damage to the president: "The spectacle of an indicted President
still trying to serve as Chief Executive boggles the imagination."
Of particular interest is the memo's consideration of whether criminal proceedings against a
vice president are precluded. OLC found this to be a difficult question before concluding
that a grand jury could indict the vice president. The memo notes that Vice President Spiro
Agnew was said to be part of a conspiracy and that it would be difficult to have a proper
indictment of co-conspirators without including the vice president (a point also true of a
conspiracy involving a president). Moreover,
Another circumstance counselling prompt presentation of evidence to the grand jury is that
the statute of limitations is about to bar prosecution of the alleged offenders with respect to
some or all of the offenses. The problem presented by the statute of limitations would be
avoided by an indictment within the statutorily specified period.
(The issue of statute of limitations arises as well in cases involving a president.)
The Dixon memo concludes that "[a]fter indictment, the question of whether the
Government should ... delay prosecution until the expiration of the Vice President's duties
involves questions of trial strategy" beyond OLC's expertise.
The conclusion that the sitting president should not be indicted was not necessarily a
categorical constitutional-judgment conclusion but seems, rather, to be a balance of policy
considerations. That, it appears, is how it was read by the office of Special Prosecutor Leon
Jaworski___as I will describe below.
2. The Oct. 5, 1973, Brief for the United States in In re Agnew. Lawyers for Vice
President Spiro T. Agnew argued that if a president could not be indicted while in office,
that same immunity should apply to a serving vice president. The vice president should have
the same immunity as the president, they wrote, because he "must maintain himself in a state
of constant preparation to replace the president." And as the official with responsibility for
initiating the 25th Amendment removal process, he must "continuously ... monitor the
ability of the President" to discharge his duties. These responsibilities, they argued, were
incompatible with being a defendant in a criminal case. Agnew's civil action, moreover,
sought to enjoin the grand jury from even "conducting any investigation" into the allegations
against Agnew as well as precluding "issuing any indictment."
The United States, in a response filed in U.S. District Court for the District of Columbia by
Solicitor General Robert Bork, opposed any immunity from criminal process for a vice
president. The solicitor general did inform the court, however, that if the grand jury were to
return an indictment, the Department of Justice "will hold the proceedings in abeyance for a
reasonable time, if the Vice President consents to a delay, in order to offer the House of
Representatives an opportunity to consider the desirability of impeachment proceedings."
What was critical, according to Bork, was this: "The issuance of an indictment ... would in
the meantime toll the statute of limitations and preserve the matter for subsequent judicial
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resolution." The memorandum concluded that while the demands of the presidency preclude
subjecting the chief executive to criminal process, no such importance attaches to the office
of the vice president.
Because Agnew pleaded no contest to an indictment in a negotiated agreement, there was no
resolution of his claim of immunity from indictment. Although the charges had been serious
(Agnew was said to have accepted containers of cash in the White House), he was allowed
to plead to a single count and serve no prison time, essentially in exchange for his
resignation from the vice presidency___an outcome that may not have been possible had
Agnew not been susceptible to indictment.
3. The Feb. 12, 1974, Memorandum to Independent Counsel Leon Jaworski. The
attorneys in the Office of Watergate Special Prosecutor Leon Jaworski concluded that there
was no legal bar to indicting a sitting president and that the office should recommend either
that the grand jury indict President Nixon or that criminal charges against him be
incorporated into a formal grand jury presentment. Jaworski concluded that the best course,
with impeachment proceedings in the offing, was to include Nixon as an unindicted co-
conspirator in the indictment of the other Watergate defendants.
The memo notes at the outset that
As we understand it, the conclusions regarding indictment of an incumbent President
reached by the Department of Justice, the U.S. Attorney's office, and this office, are all
consistent: there is nothing in the language or legislative history of the Constitution that
bars indictment of a sitting president, but there are a number of 'policy' factors that weigh
heavily against it.
The memo finds those policy considerations offset by competing considerations.
For us or the grand jury to shirk from an appropriate expression of our honest assessment of
the evidence of the President's guilt would not only be a departure from our responsibilities
but a dangerous precedent damaging to the rule of law.
In deciding whether to indict a sitting president, they asserted, any considerations of a
political nature should be left to Congress, which can decide if it wishes to immunize a
president from prosecution. The special prosecutor's office did conclude, however, that the
quantum of proof required to support an indictment of a sitting president should be quite
high: "the evidence of the President's guilt should be direct, clear, and compelling and ...
admit of no misinterpretation."
Some of Jaworski '5 team thought that President Nixon should be indicted. Others favored
proceeding by a "presentment," which would set out "in detail the most important evidence
and the Grand Jury's conclusion that the President has violated certain criminal statutes and
would have been indicted were he not President." The office concluded that "there appears
to be no question of the propriety or legality of such a course...." The memo noted that
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having the grand jury actually name the specific indictable crimes for which there was clear
evidence of guilt was important: "This fundamental conclusion [of criminal guilt] should not
be allowed to be lost in a recitation of facts or sources of evidence that omits the basic
judgment involved or leaves it open to public (and Congressional) speculation and debate."
The memo also noted that the president could be named an unindicted co-conspirator in the
indictment of the other conspirators, the course ultimately chosen by Jaworski.
4. The June 21, 1974, Reply Brief for the United States in US v. Nixon. The U.S. District
Court for the District of Columbia refused Nixon's motion to expunge his inclusion as an
unindicted co-conspirator in the Watergate indictment. Nixon asked the Supreme Court to
reverse that decision. His lawyers argued that since a sitting president could not be indicted,
neither should he be implicated as an unindicted co-conspirator.
In this filing on behalf of the United States, Jaworski rejected Nixon's premise that a
president could not be indicted, stating that "It is an open and substantial question whether
an incumbent President is subject to indictment." The brief argues for indictability before
concluding that it is unnecessary to decide that question in order to resolve whether to permit
his inclusion as an unindicted co-conspirator.
(Despite the filing's origin in Jaworski's office, it would be a mistake to argue that this filing
was not in some sense the position of the Department of Justice. Leon Jaworski and his
attorneys were officers of the Department of Justice assigned by the attorney general the
responsibility for advancing the legal positions of the United States, including in
representations to the U.S. Supreme Court.)
The Jaworski filing notes how critical it is to identify the president as one of the criminal
accused: "the identification of each co-conspirator___regardless of station____is a
prerequisite to making his declarations in furtherance of the conspiracy admissible against
the other conspirators."
Although the brief concludes that "it is by no means clear that a President is immune from
indictment" during his term, the special prosecutor chose not to indict the sitting president
on the basis of "practical arguments." Those arguments, however,
cannot fairly be stretched to confer immunity on the President from being identified as an
unindicted co-conspirator, when it is necessary to do so in connection with criminal
proceedings against persons unquestionably liable to indictment.
Naming the president as an unindicted co-conspirator was necessary for the grand jury to
return a "true bill," Jaworski argued, and "required here to outline the full range of the
alleged conspiracy." There exists, moreover, "a legitimate public purpose in reporting the
fact that serious criminal charges against a government official have been made."
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1
1
The mere fact that an official has a personal immunity from prosecution does not bar the
prosecution from alleging and proving his complicity as part of a case against persons who
have no such immunity.
It would not be fair "to the defendants ... to blunt the sweep of the evidence artificially by
excluding one person, however prominent and important, while identifying all others." The
Jaworski filing acknowledged that naming an incumbent president as an unindicted criminal
co-conspirator may cause the public anguish of a cloud over the presidency. But "in the
public marketplace of ideas" there is little reason to fear that malicious charges against a
president "will receive credit they do not deserve."
Notably, the United States made no mention of the OLC Dixon memo in its filing in the
Supreme Court other than by implication: The filing says that the Department of Justice
agrees that the Constitution does not bar indictment of a president, perhaps reading the
Dixon OLC memo as merely a statement of policy. What is striking is that the 2000 OLC
memo treats the 1973 Dixon memo as an important precedent but not the more substantial,
more careful subsequent filing in the U.S. Supreme Court.
The Supreme Court did not answer Nixon's request to expunge his inclusion as an
unindicted co-conspirator. Finding it unnecessary to answer that question in order to rule
against the president on the subpoena of the nine tapes, the court dismissed Nixon's
companion cert petition as improvidently granted. Nixon's resignation and pardon rendered
the remaining questions moot.
5. The May 13, 1998, Memorandum to Independent Counsel Starr. This memorandum
was written by professor Ronald Rotunda in response to an inquiry from Independent
Counsel Kenneth Starr. Rotunda concluded that
In the circumstances of this case, President Clinton is subject to indictment and criminal
prosecution, although it may be the case that he could not be imprisoned ... until after he
leaves that office.
The Rotunda memo is the least persuasive of the opinions in question. First, its status is
unclear. It says that the question was posed by Starr, but it does not note whether Rotunda,
who may have been a paid consultant, had any official governmental role. There is no
indication that the opinion underwent any review by other officials.
The opinion seems to claim too much, in my view, by suggesting that a president could be
not only indicted but actually put on trial while serving. (Rotunda does not even rule out
imprisoning a president.) There is an informal and partisan flavor to the memo that makes it
less serious than the other arguments put forth by the department.
Rotunda argues that the then-existing Independent Counsel Act contemplated that a
president could be investigated and questioned, so therefore it must follow that he can be
indicted. This is the obverse of the current argument made by some that since a president
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can't be indicted, he can't be questioned. Both positions are based on category mistake. No
one has ever seriously suggested that a president can never be indicted. The only debate is
whether any indictment of a president must be postponed until he is no longer in office.
Since any president can indisputably be indicted when no longer in office, there is no
permanent immunity that would obviate questioning of a president.
6. The 2000 OLC Memorandum. This opinion of the Office of Legal Counsel, signed by
Assistant Attorney General Randolph Moss, is a thorough and thoughtful analysis of
whether a president can be indicted and prosecuted while serving in office. It appears to
have originally been drafted during the time of the Starr investigation of President Bill
Clinton. The case against putting a president on trial is fully convincing to me. What is not
so clear, however, is whether there is sound basis for withholding an indictment of a
president even if any trial proceedings must await the end of his term. Like the Dixon memo,
the 2000 opinion set out several obstacles to trying a president. None of those reasons, save
one, applies to naming a president in an indictment.
The 2000 opinion gives so little thought to the possibility of indicting-and-postponing that it
gives only one reason why such a course should be precluded: the idea that including the
president in an indictment would cast a "cloud" over the presidency. The notion that
reputational harm alone should preclude a normal part of the system of justice seems
incompatible with the Supreme Court's decision in Clinton v. Jones, in which the court set
such a high bar for any presidential immunity from the normal process of litigation that not a
single justice found that actually undergoing a civil trial was precluded.
It is hard to square mere reputational harm as a basis for precluding indictment when the
government seems to have established that a president can be listed as an unindicted co-
conspirator. The reputational difference between being named as an unindicted co-
conspirator in a criminal indictment and being listed as one of those indicted seems
relatively small. The essential difference: naming one as indicted prevents the statute of
limitations from expiring. Why, for a small reputational difference, would one choose to
make being in the White House a basis for permanently precluding (by operation of the
statute of limitations) an otherwise warranted criminal prosecution?
One aspect of the 2000 memo is worth noting. It appears to have been drafted with the case
against President Clinton in mind. That was essentially a one-defendant matter. Thus, the
opinion does not grapple with the significant obstacles to trying a multi-defendant criminal
conspiracy while excluding from the charging document any reference to one of the
conspirators___and perhaps a key conspirator.
For an extended argument that the terms of Robert Mueller's appointment and practice of
the Office of Legal Counsel do not require him to conform to the 2000 OLC position
opinion rejecting the option of indicting and postponing, see Andrew Crespo's analysis. In
addition to Crespo's analysis, I would add that the 2000 memo gives only scant attention to
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the possible course I believe deserves most consideration when a sitting president has been
found to have committed a crime: indict-and-postpone. While I would not call the few
mentions of that possibility "mere dicta," I believe the scant discussion of the point should
not preclude an independent judgment by subsequent officials. The notion that such a course
would cause reputational harm___though it would not physically interfere with the
president's attention to his duties___seems to be a point of policy, not constitutional law. For
a helpful analysis of this question, see Bob Bauer's posting.
In any event, OLC has never suggested that a president cannot be an unindicted co-
conspirator.
Conclusions
The history of positions taken by the executive branch of the United States on the indictment
of a sitting president is more varied and complex than is generally assumed. For that reason,
whether or not a president can be indicted or named as an unindicted co-conspirator should
not be considered a settled question.
I am convinced that putting a president on trial would be inconsistent with the Article II
responsibilities of the modern presidency. Others___Larry Tribe included___are less certain
and also point to the 25th Amendment, arguing that if being on trial or incarcerated
precluded a president from being able to perform his duties, the 25th Amendment provides a
theoretical if impractical avenue for the vice president to take over in successive 21-day
increments during that time. I see the point, but I believe that approach could too easily set
aside the determination of the electorate. People vote for a president, not a vice president. It
would be no small matter, for example, to have had Sarah PalM step in for John McCain.
If a guilty president is not to be indicted, he or she should in any event be included in the
charging instrument as an unindicted co-conspirator, an option that has been expressly
defended by the United States before the Supreme Court. And once it has been established
that a president can be an unindicted co-conspirator, the case for categorically precluding
indictment of a president is significantly weakened.
I have argued previously that there should be no categorical bar to the indictment of a sitting
president. Clinton v. Jones establishes that a president has a substantial burden of showing
that normal processes of litigation are incompatible with his duties___and while that showing
can be made for an actual criminal trial, it is difficult to make such a showing for naming a
president in a grand jury indictment as long as trial proceedings are postponed until a
president is no longer in office.
What, then, is the argument against indictment? Perhaps it casts a greater cloud. On the other
hand, the most important reason for issuing an indictment, rather than merely naming the
president as unindicted co-conspirator, is to prevent the statute of limitations from expiring.
This, in my view, is an important consideration. Indeed, a president might seek reelection
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just to make sure the limitations period runs on all his or her crimes while he or she remains
in office.
But concluding that a president can be indicted does not mean that he or she should be
indicted, even if that would be called for by the normal operation of the criminal process.
Awaiting action by the House of Representatives may in some circumstances be the prudent
course___though one might question whether it is appropriate to weigh that institutional
factor variously depending on how realistic it is that a particular House and Senate would
take their responsibilities seriously.
Some offenses might be seen as better suited for initial consideration by Congress in the
impeachment process. Whether an exercise of executive authority___such as discharging an
official or pardoning someone for an allegedly corrupt reason___should be grounds for
sanction might be seen as requiring an essential political judgment, perhaps best suited for
elected officials to make. On the other hand, the regular processes of the federal criminal
system might be a better forum for an alleged complex multi-defendant financial conspiracy
including money laundering, bank fraud, tax evasion, etc. In short, context matters for a
special counsel or other prosecutor considering how best to proceed.
There is good reason to have the judiciary decide the question of whether an indictment of a
sitting president is categorically barred. This is especially the case now that the decision
process would in significant part be based upon an interpretation of a Supreme Court
decision, Clinton v. Jones. If a prosecutor included the president in an indictment, the
president would no doubt move to have his or her name stricken. The first question a judge
should ask is, "If I strike the president from the indictment, will he or she agree to waive any
defense of the statute of limitations that may expire while he or she is in office?" If the
president refuses to waive the statute of limitations, that itself would be a good reason for
permitting the indictment, while postponing any further proceedings.
It is impossible to predict whether a prosecutor would ask the attorney general for
authorization to indict____or to make the president an unindicted co-conspirator___without
knowing the degree and nature of any criminality that might be uncovered, and how
including or not including the president in an indictment would affect the trial of other
conspirators. But the possibility of including the president in an indictment is not
categorically foreclosed.
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