Indicting a President Is Not Foreclosed: The Complex History - Lawfare
[{"sender": "Kathy Ruemmler <kathyruemmler@gmail.com>", "recipients": ["jeevacation@gmail.com"], "timestamp": "6/19/2018 5:30:40 PM", "subject": "Indicting a President Is Not Foreclosed: The Complex History - Lawfare", "body": "https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history\n\nIndicting a President Is Not Foreclosed: The\nComplex History\n\nCan a sitting president be indicted? Often, in answering this question, commentators point to\nOffice of Legal Counsel (OLC) opinions answering in the contrary. To whatever extent the\nwriter agrees or disagrees with the opinions’ conclusion, the government’s position on the\nmatter is usually presented as a long-standing and clear “no.”\n\nThe reality is more complicated. The United States has addressed this question six times 1n\nboth internal memos and briefs filed in litigation. And a review of these documents shows\nthat it is far from clear what criminal prosecution steps are (or should be) precluded—and\nthat there is no “longstanding policy” against indictment of the president. Consider the 1973\nOLC memo stating that a sitting president should not be indicted. Far from being\nauthoritative, it was essentially repudiated within months by the Justice Department in the\nUnited States’ filing in the Supreme Court in United States v. Nixon.\n\nLikewise, the most recent opinion—an OLC memo written in 2000—includes brief\nstatements that a sitting president should not be indicted even if all further proceedings are\npostponed. But far from being definitive, this 1s a matter that could be reconsidered by the\ndepartment. Moreover, of course, OLC opinions are not binding on state prosecutors (though\nstate charges could raise federalism questions as well). The complex history of criminal\nproceedings against presidents and vice presidents suggests that these issues are not\nforeclosed.\n\nPerhaps the most important point that emerges from a review of all the opinions 1s this: nly\nonce has the United States addressed the question of whether a president can be an\nunindicted co-conspirator. The conclusion was an unequivocal yes. Richard Nixon was so\nnamed in the Watergate indictment, and that inclusion was sustained by Judge John Sirica\nand defended by the United States in United States v. Nixon. (The Supreme Court did not\nresolve the question.) No department opinion or filing has ever contradicted that position.\nThe fact that it is permissible to name a sitting president as unindicted co-conspirator,\nmoreover, tends significantly to undermine the only argument against tndicting a sitting\npresident."}]