Is a Trump indictment possible? Mueller and the DOJ can and should re-evaluate the Office of Legal Counsel's memo

Department of Justice officials would be wise to reflect on American history — and learn from our institutional mistakes.
Image: Donald Trump
President Donald Trump speaks during a meeting with Democratic leaders in the Oval Office of the White House on Dec. 11, 2018.Evan Vucci / AP file
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

President Donald Trump can’t be indicted in office. At least that’s what the current conventional wisdom says. But constitutional scholars disagree on the relevant legal precedent, meaning arguably the most salient impediment right now is a Department of Justice (DOJ) memo, issued by the Office of Legal Counsel (OLC). And that memo does not have to stand forever.

Briefly some context: The OLC provides legal advice to the attorney general to assist him or her in advising the president and all executive branch agencies on legal matters. This is relevant because that means the OLC currently guides Acting Attorney General Matthew Whittaker, who technically oversees special counsel Robert Mueller’s investigation. The OLC memo in question, titled “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” was produced in 2000 and signed by Randolph Moss, then the assistant attorney general.

Although the memo’s guidance remains in effect today, it is not etched on stone tablets.

It should be noted that the OLC memo reaffirms an early DOJ opinion memo, authored in 1973 during the Watergate era, which also concluded “that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

And yet, although the memo’s guidance remains in effect today, it is not etched on stone tablets. Indeed, even Supreme Court decisions, which are the law of the land, are reconsidered over time as societal norms and legal landscapes evolve. The same principles must hold true for this consequential policy decision, authored during the height of the Bill Clinton/Monica Lewinsky scandal.

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Most importantly, the OLC’s memo does not take into account a president who may have had an unfair electoral advantage either due to campaign finance fraud or foreign collusion — or any other conspiracy designed to undermine democracy.

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Essentially, some officials (and experts) are treating the DOJ’s memo like Supreme Court precedent. But even the highest court in the land makes mistakes. Supreme Court decisions, once handed down, guide governmental rules and actions. Constitutional issues decided by the Supreme Court are written, figuratively speaking, in indelible ink — destined to remain in effect for decades, if not for all time. Stating the obvious, Supreme Court opinions are significantly more permanent and enduring than DOJ policy memos.

This is of course by design — the Supreme Court is made up of a panel of some of America’s finest legal minds. Supreme Court justices are supposed to be above partisan politics, guided only by their understanding and interpretation of our Constitution. Admittedly, trust in the Supreme Court may be waning amid a spasm of politically rancorous confirmation hearings, but the current court remains less susceptible to political headwinds — and outside influence — than politically appointed officials.

Arguably, the single worst precedent of the Supreme Court was 1857’s Dred Scott v. Sandford, which ruled that African Americans could not be full American citizens. This decision all but guaranteed that there would be no political or legal solution to the question of slavery. The result was a bloody and supremely divisive civil war (and, eventually, the 14th Amendment).

Thankfully, Dred Scott v. Sandford no longer guides American legal thought. This need to reevaluate decisions based on evolving societal norms and legal understanding also applies to the OLC memo. First, at its core, the OLC memo concludes that a president is so busy with the work of running the country that he or she should not be burdened by having to defend against a criminal prosecution.

Let’s set aside for the moment the question of whether Trump is truly consumed by the task of governing and concentrate on that second point. The memo contemplates impeachment as the only lawful vehicle to dislodge a president who has committed “high crimes and misdemeanors.” However, it’s becoming increasingly clear that, regardless of how much incriminating evidence comes to light regarding Trump’s conduct, Republican senators will do nothing to hold him accountable for fear that they will alienate Trump’s base and risk losing their own future elections.

If party affiliation has become the sole motivating factor for decisions regarding impeachment proceedings, then the very premise of the OLC memo fails. In other words, if Republican representatives refuse to impeach and/or Republican senators refuse to remove/convict a criminal president due to unshakable party loyalty, then the OLC memo is de facto ensuring that the president is above the law.

If party affiliation has become the sole motivating factor for decisions regarding impeachment proceedings, then the very premise of the OLC memo fails.

Then there is the issue of ensuring lawful elections. The OLC memo contemplates a president who was elected freely and fairly. And yet evidence is mounting that Trump committed felonious campaign finance violations during the 2016 campaign, crimes that may have provided an unfair advantage. Recent reporting, coupled with documents released by special counsel Robert Mueller’s team, make clear that Trump conspired with others (Michael Cohen, David Pecker, Allen Weisselberg), to pay hush money to suppress politically damaging information. Moreover, we may soon learn that the Trump campaign conspired with Russia to defraud the United States by seeking or accepting Russia’s assistance to unfairly tilt the playing field toward Trump and away from Hillary Clinton.

If a president can act unlawfully to influence an election, he does not deserve the protections of his ill-gotten office. This incongruity encourages lawlessness in the quest for the presidency and then rewards that lawlessness by inoculating the criminal president against prosecution. Such a construct is dangerous.

Failing to revisit the wisdom of the OLC’s position of complete immunity for an allegedly criminal president could have profound consequences. Both President Richard Nixon and President Bill Clinton committed crimes during their presidencies. Nixon resigned and was pardoned by President Gerald Ford. Bill Clinton was impeached by the House of Representatives but the Senate did not vote to remove him from office. Neither president was ever prosecuted.

We now find ourselves with a president whose crimes may outpace those of Nixon and Clinton. Failing to hold criminal presidents accountable in a court of law arguably emboldens, or at the very least does not dissuade, corrupt individuals from seeking the presidency. At some point, we must learn from our institutional mistakes. Department of Justice officials would be wise to reflect on American history lest we once again succumb to a governmental crisis.