Who says a president can’t be indicted? The OLC only, that’s who

The notion that President Donald Trump cannot be charged while in office for criminal offenses, the obstacle that apparently prevented Special Counsel Robert Mueller from indicting him, is a shibboleth.

Mueller’s soporific performance as an unwilling witness in a pair of hearings on July 24 in the House of Representatives addressed that issue. But Mueller, whose demeanor was akin to that of a child being dragged to the dentist after swallowing caster oil medicine, vacillated on whether that was the basis for the declination to pursue criminal charges of obstruction of justice against the president.

The reluctance to prosecute is derived from an extrajudicial, nonbinding, self-serving, outmoded memorandum written by second-tier personnel in the Department of Justice that has taken on an unwarranted mantle of legal probity. In fact, it is more vulnerable than venerable.

The concept stems from an opinion issued by a low-echelon lawyer in the bowels of a government body called the Office of Legal Counsel, known in the Beltway circles as the OLC. A unit within the Department of Justice (DOJ), it gives advice to the president and other executive departments, including DOJ lawyers who can’t figure out the answers themselves — sort of like a bench coach advising a baseball manager or a high school guidance counselor aiding an uncertain student. In some cases, the president has to approve the OLC’s actions; fat chance that one would rebuke the view that the president is criminally immune while in office.

OLC staff opinions are just that: opinions of staff. They do not have any judicial imprimatur or the force of law. Views expressed by the OLC are the functional equivalent of a sign in a company’s employee kitchen reminding personnel to stack dirty dishes and utensils in the dishwasher; they are precatory but hardly compulsory outside of that room or binding upon others who might be idling there.

Aura and awe

Yet the OLC’s artificial opinion that U.S. presidents, including the current one, are immune from criminal prosecution during their time in office has taken on an aura of tablets descended from Mount Sinai. It doesn’t deserve to be treated with such awe. It’s more of a golden calf than a sacred statement.

The opinion originated in September 1973, as the Watergate scandal was heating up, by President Richard Nixon’s Justice Department. Whatever its intent, its effect was to erect a barrier to hauling him into a criminal court, lessening his disgrace to that of an unindicted co-conspirator, leading up to his resignation on the eve of almost certain impeachment 45 years ago next week.

The indictment proscription came up again for internal Justice Department review in 2000, in the wake of the acquittal in the Senate of President Bill Clinton after he was impeached by the House of Representatives due to the Monica Lewinsky affair. Not surprisingly, his minions at DOJ re-affirmed the Nixon era opinion barring a sitting presidential indictment.

The prohibition has been trotted out again by the Trump administration, facing possible presidential impeachment, and imposed upon Mueller as a loyal DOJ employee.

Notice a pattern here: The initiative against indictment comes from the department that the embattled chief executive oversees and from subordinates to his own appointees within DOJ. Hardly an objective viewpoint. It couldn’t be a cozier — and more convenient — arrangement than if that baseball manager had his bench coach tell the umpire what balls and strikes to call.

Minnesota matters 

There are some analogous matters here in Minnesota that reflect the vapidity of the OLC opinion. The state attorney general from time to time has issued opinions on unresolved questions, often dealing with issues of local governance. Used infrequently these days, the opinions provide guidance, but are nonbinding and lack legal effect.

The state Department of Administration issues, upon request, “Advisory Opinions” concerning the Minnesota “Sunshine” laws, the Government Data Practices Act and the Open Meeting Law. They, too, are not binding but may be taken into account in ensuing legal proceedings.

Both of these devices are apolitical and may be looked to by the courts in the event of litigation Not so the OLC opinion, which lacks both of these features.

Biased and baseless

The OLC opinion is not only biased, it’s baseless besides. It rests on two premises: 1) that subjecting a sitting president to an adverse judicial proceeding would impinge upon the separation of powers doctrine; and 2) it would be unduly disruptive by impairing the president’s ability to carry out the duties of the office.

Neither has merit, and both have been undermined by subsequent developments after the initial promulgation of the opinion.

There is nothing in the Constitution or any statutes that prohibit an indictment, and no court opinions support it, either. But there are some of each that contradict it, and they occurred during the Nixon and Clinton terms.

The 25th Amendment to the U.S. Constitution authorizes the vice president to temporarily take over the chief executive duties if the president is incapacitated. While it has been invoked sporadically for short-term matters, it is suitable while a president prepares for and stands trial for criminal offenses.

The measure was in its infancy and untested at the time the anti-indictment opinion was first promulgated during Watergate. But a different portion of it was used to fill the vice presidential vacancy when Spiro Agnew resigned because of criminal charges against him, elevating Gerald Ford from Congress to that position and ultimately to the presidency after Nixon’s resignation.

Thus, a tried and true mechanism exists to assure continuity of the presidential functions.

Furthermore, the Supreme Court has undermined the rationales predicating the OLC no-indictment opinion. The justices in 1987, in the early stages of the Clinton-Lewinsky imbroglio, ruled in Clinton v. Jones that the president can be subject to a civil lawsuit while in office. The decision, written by Justice John Paul Stevens, who died in mid-July, reasoned that being a defendant in litigation was not so “burdensome” to impede presidential duties and the separation of powers doctrine was not deemed a bar, either.

While that case only involved a civil suit for money damages, its rationale would seem to apply to a criminal cases as well, although a conviction and ensuing imprisonment could maim a president’s ability to govern, unless Cabinet meetings could be held in a prison cell. But that’s where the 25th Amendment comes in, again, allowing the vice president to take over, even permanently in the event of long-term presidential incarceration, unless a convicted president were to be placed under house arrest, the habitat being the White House.

Myth and mirage 

Despite these flaws, it’s unlikely that any future Justice Department would have the temerity, or courage, to depart from the OLC opinion to the detriment of the head of its administration.

Nevertheless, the no-indictment-while-in-office opinion has minimal legal footing and even less factual foundation. It is myth based upon a mirage.

Rather than being revered, it should be reversed.

Marshall H. Tanick is a Twin Cities constitutional and employment law attorney and historian.

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