AuthorWehle, Kimberly L.
PositionOffice of Legal Counsel

INTRODUCTION 3 I. THE OLC MEMORANDA AND CRIMINAL INVESTIGATIONS OF PRESIDENTS NIXON, CLINTON, AND TRUMP 10 A. What Is the OLC? 13 1. 28 U.S.C. [section] 510 et seq 14 2. The Justice Manual 15 3. Courts' Treatment of OLC Memoranda: "Working Law" 17 B. The Memoranda's Constitutional Rationales for Absolute Criminal Immunity for Sitting Presidents 20 1. The 1973 Memorandum 21 2. The 2000 Memorandum 23 C. The Net Effect of the OLC Memoranda on the Separation of Powers 25 II. WHAT IS AN OLC MEMO AS A SOURCE OF LAW? 30 A. The OLC Memos as an Exercise of Prosecutorial Discretion Under Article II 31 1. Article II 31 2. Prosecutorial Discretion and Constitutional Limits 32 B. The OLC Memos as Non-Legislative Rules Under the APA 36 III. PROPER SOURCES OF LAW FOR IDENTIFYING THE SCOPE OF CRIMINAL ACCOUNTABILITY FOR A PRESIDENT IN OFFICE 41 A. Congress's Power as a Source of Law 41 B. Courts' Power as a Source of Law 44 C. Federalism and States' Power as Sources of Law 45 IV. SHELVING THE OLC MEMOS AS A SOURCE OF LAW 47 A. Legislative Solutions 48 B. Judicial Solutions 50 C. A Final Rebuttal to the OLC Memos' Arguments for Presidential Immunity 54 CONCLUSION 57 INTRODUCTION

Consider a hypothetical crime committed by a hypothetical president that everyone would agree is a violation of the criminal laws as well as the "high crimes and misdemeanors" standard for impeachment: an actual monetary bribe (which is an express basis for removal in the Constitution, after all). Imagine, too, that in his first term in office, a president accepts $100 million in largely untraceable gold bullion from a terrorist organization in exchange for the president's agreement to influence United States national security and intelligence agencies to look the other way while it establishes terrorist cells across the Middle East. Suppose, further, that a reporter embedded in the terrorist organization breaks the story of the president's acceptance of the bribe in The New York Times. The president vehemently denies the charge, and viciously attacks the media on Twitter, claiming that the story is totally false and aimed at destroying him politically and disempowering his base.

The base is enraged. Members of Congress who hail from the president's political party cower and say nothing, as they know that if they come out against the president, the base will support the nomination and election of primary challengers who are more loyal to the president personally. The members decide that it is better to keep their jobs than speak out and get fired.

What does the Constitution have to say about this scenario? Recent events provide some insight, but it is hardly dispositive.

From May 2017 to March 2019, the American news cycle was inundated with daily reports of "breaking news" regarding the investigation of Special Counsel Robert Mueller. (1) That probe was initiated by former Deputy Attorney General Rod Rosenstein when then-Attorney General Jeff Sessions recused himself due to his role in the Trump campaign for president. (2) Mueller's mandate ultimately covered the Russians' interference in the 2016 presidential election, the Trump campaign's connections to that Russian effort, and President Trump's efforts to obstruct the Mueller investigation. (3) In under two years, his team wound up criminally indicting thirty-four individuals and three companies. (4) Eight individuals pleaded guilty or were convicted at trial, including five people close to Trump himself. (5)

Throughout this ordeal, pundits speculated as to whether Mueller had gathered sufficient evidence for a grand jury to indict Donald J. Trump. There was also widespread puzzlement over whether, even if he had, Mueller would feel constrained by the Department of Justice's (DOJ) internal analysis and guidance that, for purposes of its own prosecutors, indictment and prosecution of a sitting president would be unconstitutional. (6) To be clear: As a matter of internal DOJ policy, federal prosecutors are told not to indict sitting presidents. This is not a law embodied in the Constitution or a statute. It is an internal personnel policy. And under the governing regulatory framework for a special counsel, Mueller was bound by DOJ policy. (7) So even if Mueller were to find indictable evidence that he believed would convince a jury beyond a reasonable doubt that Donald J. Trump committed one or more federal crimes either before taking office or while in office, federal prosecutors were barred from bringing such a case.

Keep in mind that because this policy is not a law, an incumbent attorney general is free to change it at any point in time. Just like Presidents Nixon and Reagan directed prosecutors to fixate on bringing narcotics cases as part of the declared "war on drugs," a future AG could decide that weeding out government corruption is paramount, and that as part of that presidents will no longer be treated as above the law as a practical matter within the ranks of DOJ. If they want to avoid indictment, they should not commit crimes.

But as it stands, the decades-old memos directing federal prosecutors to stand down on prosecutions of sitting presidents remain in place. Some people who had worked with Mueller during his storied career--including as a former director of the Federal Bureau of Investigation (FBI)--believed that his personal commitment to the rule of law would prompt him to find a way to hold the president accountable if the facts warranted it. (8) Mueller could have asked DOJ to revisit its presidential immunity policy, for example. Or he could have indicted the president under seal if the facts warranted it in order to toll the applicable statute of limitations. The memos do not expressly forbid that route, after all; if the public was unaware of an indictment and the president were prosecuted later, as a private citizen, the policy reasons for not prosecuting sitting presidents set forth in the memos did not hold much weight.

Those predictions did not come to pass. (9) In a redacted 448-page report issued on April 18, 2019, Mueller concluded that the Trump campaign had not criminally conspired with the Russians, despite numerous contacts between the two groups during the campaign. (10) As for obstruction of justice, Mueller referred to the DOJ policy against indicting sitting presidents as a reason why the ten acts of obstruction detailed in the report (11) were not actionable through an indictment of Donald J. Trump. (12) Over 1,000 former federal prosecutors subsequently signed a public statement concluding "that the conduct of President Trump described in Special Counsel Robert Mueller's report would, in the case of any other person not covered by the Office of Legal Counsel (OLC) policy against indicting a sitting President, result in multiple felony charges for obstruction of justice." (13)

What's more, pundits, experts, government officials and laypeople across the board--in discussing the internal DOJ policy against indicting sitting presidents--have treated the memos as if they were black letter law. Rarely did the analysis turn to the flexibility that former Attorney General Jeff Sessions, Acting Attorney Matt Whitaker and, later, Attorney General Bill Barr had to lift that policy. Of course, there are good reasons not to indict presidents in office, but that's a far cry from treating it as if it derived from actual law. It does not.

So, what is it about the OLC policy that gives it such force of law as a matter of constitutional and criminal law?

To be clear, by "force of law" I mean a provision of the Constitution, a statute, a regulation, international law, or common law that creates rules that bind private behavior. (14) A yellow "Children at Play" sign along a neighborhood street might operate as an admonition for drivers to slow down, but only an actual speed limit sign operates as an enforceable limit on how fast drivers can go. A memorandum to prosecutors from a supervisor directing them to focus on prosecuting felonies over misdemeanors is an internal policy directive--not a law. The Constitution's Fourth Amendment requiring that law enforcement obtain a warrant before conducting a search of a home is a law. This distinction seems self-evident, but rarely broken down or understood in this way.

Of course, an incumbent president is not in the posture of a private person. The very fact that the president operates pursuant to the Vesting and Take Care Clauses of Article II of the Constitution complicates the question of whether he can obstruct investigations conducted by actors within Article II'S chain of command. If he is in charge of DOJ under Article II, it is ultimately his decision whether to investigate or prosecute someone, the argument goes, so any prosecutorial decisions are per se legitimate and cannot obstruct justice. (15)

The DoJ policy--which was set forth in two memoranda produced by the oLC under Presidents Richard Nixon and Bill Clinton--sprung in part from a reading of Article II that would render a sitting president beyond the reach of the criminal justice system. As a practical matter, the OLC memos have operated to excise the judicial branch from the separation of powers for purposes of holding presidents accountable for potential crimes in office. After all, Article III judges only hear matters brought to them. If DOJ is forbidden from bringing those cases in the first place, the judicial branch and its jury trial process are categorically beyond reach for purposes of confining presidential wrongdoing, leaving Congress as the only branch of government that is conceivably poised to impose consequences on a sitting president who--assuming for the sake of argument--commits crimes in office. Put simply, the Judiciary has no power over matters that prosecutors do not bring into court.

This alteration or shaping of the relationship between the three branches is of monumental importance, as the Constitution itself says nothing about...

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