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Mar 06 2019

Agnew, Nixon, and Trump

MSNBC host Rachel Maddow looks back at the context of the 1973 Department of Justice memo that serves as part of the basis for the conventional wisdom that a sitting president cannot be indicted, and shares insights from former Justice Department official J.T. Smith, who says the matter should be reconsidered.

Walter Dellinger is a partner at the law firm of O’Melveny & Myers and the Douglas Maggs Emeritus Professor of Law at Duke University. He was assistant attorney general and head of the Office of Legal Counsel from 1993 to 1996 and acting solicitor general of the United States from 1996 to 1997. Mr. Dellinger examined whether a sitting president can be indicted in an article written for Lawfare.

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: only 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. [..]

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.

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 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.

The entire article is an interesting and easy to understand read.

There is nothing in the constitution nor is there any law that states a sitting president cannot be indicted for a crime. Nor does the DOJ memo protect the president from a state indicting a sitting president. Former U.S. attorney Harry Litman told MSNBC on Wednesday that President Donald Trump is not protected against New York state charges of tax and other fraud — and that if the New York district attorney brings charges, America will enter “untrod territory.”

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