The Two Memos With Enormous Constitutional Consequences

One conclusion is apparent following Donald Trump’s four years in office: A sitting president is perhaps the only American who is not bound by criminal law, and thus not swayed by its disincentives.

What’s astonishing is that this immunity has no grounding in actual law. It’s not in the Constitution or any federal statute, regulation, or judicial decision. It is not law at all.

Instead, the ban on the indictment of a president rests on an internal personnel policy developed by the Department of Justice under two harangued presidents: Richard Nixon and Bill Clinton. In essence, the policy directs federal prosecutors to stand down when it comes to criminally charging a president. This is a dangerous state of affairs, and Congress must eradicate this policy with legislation—and it must do so soon, in case Trump does run for another term.

In the American system of separated powers, “Can the president do that?” is the wrong question. The right question is “If he does that, what’s the consequence?” The answer to the latter must lie in one or both of the other two branches: Congress, through impeachment and removal, or the federal judiciary, through indictment and trial.

Impeachment and removal are clearly not working as a check on criminal abuses in the Oval Office. That leaves the courts. But courts can hear only cases brought to them; the federal criminal docket is exclusively populated by federal prosecutors. And their ultimate boss—the president, through the executive-branch chain of command—won’t let them bring cases against a sitting president.

In effect, the DOJ memoranda excise the judicial branch from the work of addressing criminal conduct in the White House—with no clear constitutional authority to do so. (I explain this in detail in a recent law-review article.)

So what does the actual law say about prosecuting a sitting president? Not much. Under the landmark decision Marbury v. Madison, the federal courts have the authority to resolve constitutional ambiguities and clarify what the law is. That hasn’t happened on this issue.

Congress has constitutionally delegated powers to create federal agencies, including the DOJ; to define the federal courts’ jurisdiction; and to pass legislation. But Congress has not passed a law immunizing a sitting president from the ambit of federal criminal laws.

What Congress has done is authorize the DOJ to pass regulations, which to date include the standards governing the appointment and authority of special prosecutors such as Robert Mueller, who was tasked with investigating Russian interference in the 2016 election. But the DOJ has promulgated no regulations bearing on indictment or non-indictment of a sitting president.

Rather, what the country has guiding it is a pair of memoranda, written by an elite group of constitutional lawyers within the DOJ known as the Office of Legal Counsel (OLC), which say that indicting a sitting president is unconstitutional. To be sure, OLC opinions are routinely given great weight within the federal government; this is not unusual. The White House cannot ask sitting federal judges to prejudge thorny legal issues—their jurisdiction is confined to live cases and controversies under Article III of the Constitution. So the OLC functions to provide legal advice to “clients” within the executive branch; in the question of presidential immunity, that means the president himself. For regular people, lawyers’ advice is not binding unless a court or legislature agrees, but the OLC immunity memos have garnered a constitutional-esque quality—one they do not deserve.