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.
(I should note that the U.S. Attorney’s manual
cautions against naming persons as unindicted co-conspirators “[i]n the
absence of some significant justification.” Here, of course, the
“significant justification” would exist if a sitting president is the
only individual in the country who is immune from indictment. Thus, for
that individual alone, the usual better course of indictment would not
be available.)
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.
The relevant briefs and memoranda are:
These
documents are worth review not only for their value as precedent but
also for the extensive argumentation they contain on the pertinent
issues.
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.
2. The Oct. 5, 1973, Brief for the United States in In re Agnew.
Lawyers for Vice President Spiro T. Agnew argued that if a president
could not be indicted while in office, that same immunity should apply
to a serving vice president. The vice president should have the same
immunity as the president, they wrote, because he “must maintain himself
in a state of constant preparation to replace the president.” And as
the official with responsibility for initiating the 25th Amendment
removal process, he must “continuously … monitor the ability of the
President” to discharge his duties. These responsibilities, they argued,
were incompatible with being a defendant in a criminal case. Agnew’s
civil action, moreover, sought to enjoin the grand jury from even
“conducting any investigation” into the allegations against Agnew as
well as precluding “issuing any indictment.”
The
United States, in a response filed in U.S. District Court for the
District of Columbia by Solicitor General Robert Bork, opposed any
immunity from criminal process for a vice president. The solicitor
general did inform the court, however, that if the grand jury were to
return an indictment, the Department of Justice “will hold the
proceedings in abeyance for a reasonable time, if the Vice President
consents to a delay, in order to offer the House of Representatives an
opportunity to consider the desirability of impeachment proceedings.”
What was critical, according to Bork, was this: “The issuance of an
indictment … would in the meantime toll the statute of limitations and
preserve the matter for subsequent judicial resolution.” The memorandum
concluded that while the demands of the presidency preclude subjecting
the chief executive to criminal process, no such importance attaches to
the office of the vice president.
Because
Agnew pleaded no contest to an indictment in a negotiated agreement,
there was no resolution of his claim of immunity from indictment.
Although the charges had been serious (Agnew was said to have accepted
containers of cash in the White House), he was allowed to plead to a
single count and serve no prison time, essentially in exchange for his
resignation from the vice presidency—an outcome that may not have been
possible had Agnew not been susceptible to indictment.
3. The Feb. 12, 1974, Memorandum to Independent Counsel Leon Jaworski.
The attorneys in the Office of Watergate Special Prosecutor Leon
Jaworski concluded that there was no legal bar to indicting a sitting
president and that the office should recommend either that the grand
jury indict President Nixon or that criminal charges against him be
incorporated into a formal grand jury presentment. Jaworski concluded
that the best course, with impeachment proceedings in the offing, was to
include Nixon as an unindicted co-conspirator in the indictment of the
other Watergate defendants.
The memo notes at the outset that
As
we understand it, the conclusions regarding indictment of an incumbent
President reached by the Department of Justice, the U.S. Attorney’s
office, and this office, are all consistent: there is nothing in the
language or legislative history of the Constitution that bars indictment
of a sitting president, but there are a number of ‘policy’ factors that
weigh heavily against it.
The memo finds those policy considerations offset by competing considerations.
For
us or the grand jury to shirk from an appropriate expression of our
honest assessment of the evidence of the President’s guilt would not
only be a departure from our responsibilities but a dangerous precedent
damaging to the rule of law.
In
deciding whether to indict a sitting president, they asserted, any
considerations of a political nature should be left to Congress, which
can decide if it wishes to immunize a president from prosecution. The
special prosecutor’s office did conclude, however, that the quantum of
proof required to support an indictment of a sitting president should be
quite high: “the evidence of the President’s guilt should be direct,
clear, and compelling and … admit of no misinterpretation.”
Some
of Jaworski’s team thought that President Nixon should be indicted.
Others favored proceeding by a “presentment,” which would set out “in
detail the most important evidence and the Grand Jury’s conclusion that
the President has violated certain criminal statutes and would have been
indicted were he not President.” The office concluded that “there
appears to be no question of the propriety or legality of such a
course….” The memo noted that having the grand jury actually name the
specific indictable crimes for which there was clear evidence of guilt
was important: “This fundamental conclusion [of criminal guilt] should
not be allowed to be lost in a recitation of facts or sources of
evidence that omits the basic judgment involved or leaves it open to
public (and Congressional) speculation and debate.”
The
memo also noted that the president could be named an unindicted
co-conspirator in the indictment of the other conspirators, the course
ultimately chosen by Jaworski.
4. The June 21, 1974, Reply Brief for the United States in US v. Nixon.
The U.S. District Court for the District of Columbia refused Nixon’s
motion to expunge his inclusion as an unindicted co-conspirator in the
Watergate indictment. Nixon asked the Supreme Court to reverse that
decision. His lawyers argued that since a sitting president could not be
indicted, neither should he be implicated as an unindicted
co-conspirator.
In
this filing on behalf of the United States, Jaworski rejected Nixon’s
premise that a president could not be indicted, stating that “It is an
open and substantial question whether an incumbent President is subject
to indictment.” The brief argues for indictability before concluding
that it is unnecessary to decide that question in order to resolve
whether to permit his inclusion as an unindicted co-conspirator.
(Despite
the filing’s origin in Jaworski’s office, it would be a mistake to
argue that this filing was not in some sense the position of the
Department of Justice. Leon Jaworski and his attorneys were officers of
the Department of Justice assigned by the attorney general the
responsibility for advancing the legal positions of the United States,
including in representations to the U.S. Supreme Court.)
The
Jaworski filing notes how critical it is to identify the president as
one of the criminal accused: “the identification of each co-conspirator —
regardless of station — is a prerequisite to making his declarations in
furtherance of the conspiracy admissible against the other
conspirators.”
Although
the brief concludes that “it is by no means clear that a President is
immune from indictment” during his term, the special prosecutor chose
not to indict the sitting president on the basis of “practical
arguments.” Those arguments, however,
cannot fairly be stretched to confer immunity on the President from being identified as an unindicted
co-conspirator, when it is necessary to do so in connection with
criminal proceedings against persons unquestionably liable to
indictment.
Naming
the president as an unindicted co-conspirator was necessary for the
grand jury to return a “true bill,” Jaworski argued, and “required here
to outline the full range of the alleged conspiracy.” There exists,
moreover, “a legitimate public purpose in reporting the fact that
serious criminal charges against a government official have been made.”
The
mere fact that an official has a personal immunity from prosecution
does not bar the prosecution from alleging and proving his complicity as
part of a case against persons who have no such immunity.
It
would not be fair “to the defendants … to blunt the sweep of the
evidence artificially by excluding one person, however prominent and
important, while identifying all others.” The Jaworski filing
acknowledged that naming an incumbent president as an unindicted
criminal co-conspirator may cause the public anguish of a cloud over the
presidency. But “in the public marketplace of ideas” there is little
reason to fear that malicious charges against a president “will receive
credit they do not deserve.”
Notably,
the United States made no mention of the OLC Dixon memo in its filing
in the Supreme Court other than by implication: The filing says that the
Department of Justice agrees that the Constitution does not bar
indictment of a president, perhaps reading the Dixon OLC memo as merely a
statement of policy. What is striking is that the 2000 OLC memo treats
the 1973 Dixon memo as an important precedent but not the more
substantial, more careful subsequent filing in the U.S. Supreme Court.
The
Supreme Court did not answer Nixon’s request to expunge his inclusion
as an unindicted co-conspirator. Finding it unnecessary to answer that
question in order to rule against the president on the subpoena of the
nine tapes, the court dismissed Nixon’s companion cert petition as
improvidently granted. Nixon’s resignation and pardon rendered the
remaining questions moot.
5. The May 13, 1998, Memorandum to Independent Counsel Starr. This
memorandum was written by professor Ronald Rotunda in response to an
inquiry from Independent Counsel Kenneth Starr. Rotunda concluded that
In
the circumstances of this case, President Clinton is subject to
indictment and criminal prosecution, although it may be the case that he
could not be imprisoned … until after he leaves that office.
The
Rotunda memo is the least persuasive of the opinions in question.
First, its status is unclear. It says that the question was posed by
Starr, but it does not note whether Rotunda, who may have been a paid
consultant, had any official governmental role. There is no indication
that the opinion underwent any review by other officials.
The
opinion seems to claim too much, in my view, by suggesting that a
president could be not only indicted but actually put on trial while
serving. (Rotunda does not even rule out imprisoning a president.) There
is an informal and partisan flavor to the memo that makes it less
serious than the other arguments put forth by the department.
Rotunda
argues that the then-existing Independent Counsel Act contemplated that
a president could be investigated and questioned, so therefore it must
follow that he can be indicted. This is the obverse of the current
argument made by some that since a president can’t be indicted, he can’t
be questioned. Both positions are based on category mistake. No one has
ever seriously suggested that a president can never be indicted. The
only debate is whether any indictment of a president must be postponed
until he is no longer in office. Since any president can indisputably
be indicted when no longer in office, there is no permanent immunity
that would obviate questioning of a president.
6. The 2000 OLC Memorandum.
This opinion of the Office of Legal Counsel, signed by Assistant
Attorney General Randolph Moss, is a thorough and thoughtful analysis of
whether a president can be indicted and prosecuted while serving in
office. It appears to have originally been drafted during the time of
the Starr investigation of President Bill Clinton. The case against
putting a president on trial is fully convincing to me. What is not so
clear, however, is whether there is sound basis for withholding an
indictment of a president even if any trial proceedings must await the
end of his term. Like the Dixon memo, the 2000 opinion set out several
obstacles to trying a president. None of those reasons, save one,
applies to naming a president in an indictment.
The
2000 opinion gives so little thought to the possibility of
indicting-and-postponing that it gives only one reason why such a course
should be precluded: the idea that including the president in an
indictment would cast a “cloud” over the presidency. The notion that
reputational harm alone should preclude a normal part of the system of
justice seems incompatible with the Supreme Court’s decision in Clinton v. Jones,
in which the court set such a high bar for any presidential immunity
from the normal process of litigation that not a single justice found
that actually undergoing a civil trial was precluded.
It
is hard to square mere reputational harm as a basis for precluding
indictment when the government seems to have established that a
president can be listed as an unindicted co-conspirator. The
reputational difference between being named as an unindicted
co-conspirator in a criminal indictment and being listed as one of those
indicted seems relatively small. The essential difference: naming one
as indicted prevents the statute of limitations from expiring. Why, for a
small reputational difference, would one choose to make being in the
White House a basis for permanently precluding (by operation of the
statute of limitations) an otherwise warranted criminal prosecution?
One
aspect of the 2000 memo is worth noting. It appears to have been
drafted with the case against President Clinton in mind. That was
essentially a one-defendant matter. Thus, the opinion does not grapple
with the significant obstacles to trying a multi-defendant criminal
conspiracy while excluding from the charging document any reference to
one of the conspirators—and perhaps a key conspirator.
For
an extended argument that the terms of Robert Mueller’s appointment and
practice of the Office of Legal Counsel do not require him to conform
to the 2000 OLC position opinion rejecting the option of indicting and
postponing, see Andrew Crespo’s analysis.
In addition to Crespo’s analysis, I would add that the 2000 memo gives
only scant attention to the possible course I believe deserves most
consideration when a sitting president has been found to have committed a
crime: indict-and-postpone. While I would not call the few mentions of
that possibility “mere dicta,” I believe the scant discussion of the
point should not preclude an independent judgment by subsequent
officials. The notion that such a course would cause reputational
harm—though it would not physically interfere with the president’s
attention to his duties—seems to be a point of policy, not
constitutional law. For a helpful analysis of this question, see Bob Bauer’s posting.
In any event, OLC has never suggested that a president cannot be an unindicted co-conspirator.
Conclusions
The
history of positions taken by the executive branch of the United States
on the indictment of a sitting president is more varied and complex
than is generally assumed. For that reason, whether or not a president
can be indicted or named as an unindicted co-conspirator should not be
considered a settled question.
I
am convinced that putting a president on trial would be inconsistent
with the Article II responsibilities of the modern presidency.
Others—Larry Tribe included—are less certain and also point to the 25th
Amendment, arguing that if being on trial or incarcerated precluded a
president from being able to perform his duties, the 25th Amendment
provides a theoretical if impractical avenue for the vice president to
take over in successive 21-day increments during that time. I see the
point, but I believe that approach could too easily set aside the
determination of the electorate. People vote for a president, not a vice
president. It would be no small matter, for example, to have had Sarah
Palin step in for John McCain.
If
a guilty president is not to be indicted, he or she should in any event
be included in the charging instrument as an unindicted co-conspirator,
an option that has been expressly defended by the United States before
the Supreme Court. And once it has been established that a president can
be an unindicted co-conspirator, the case for categorically precluding
indictment of a president is significantly weakened.
I have argued previously that there should be no categorical bar to the indictment of a sitting president. Clinton v. Jones
establishes that a president has a substantial burden of showing that
normal processes of litigation are incompatible with his duties—and
while that showing can be made for an actual criminal trial, it is
difficult to make such a showing for naming a president in a grand jury
indictment as long as trial proceedings are postponed until a president
is no longer in office.
What,
then, is the argument against indictment? Perhaps it casts a greater
cloud. On the other hand, the most important reason for issuing an
indictment, rather than merely naming the president as unindicted
co-conspirator, is to prevent the statute of limitations from expiring.
This, in my view, is an important consideration. Indeed, a president
might seek reelection just to make sure the limitations period runs on
all his or her crimes while he or she remains in office.
But concluding that a president can be indicted does not mean that he or she should
be indicted, even if that would be called for by the normal operation
of the criminal process. Awaiting action by the House of Representatives
may in some circumstances be the prudent course—though one might
question whether it is appropriate to weigh that institutional factor
variously depending on how realistic it is that a particular House and
Senate would take their responsibilities seriously.
Some
offenses might be seen as better suited for initial consideration by
Congress in the impeachment process. Whether an exercise of executive
authority—such as discharging an official or pardoning someone for an
allegedly corrupt reason—should be grounds for sanction might be seen as
requiring an essential political judgment, perhaps best suited for
elected officials to make. On the other hand, the regular processes of
the federal criminal system might be a better forum for an alleged
complex multi-defendant financial conspiracy including money laundering,
bank fraud, tax evasion, etc. In short, context matters for a special
counsel or other prosecutor considering how best to proceed.
There
is good reason to have the judiciary decide the question of whether an
indictment of a sitting president is categorically barred. This is
especially the case now that the decision process would in significant
part be based upon an interpretation of a Supreme Court decision, Clinton v. Jones.
If a prosecutor included the president in an indictment, the president
would no doubt move to have his or her name stricken. The first question
a judge should ask is, “If I strike
the president from the indictment, will he or she agree to waive any
defense of the statute of limitations that may expire while he or she is
in office?” If the president refuses to waive the statute of
limitations, that itself would be a good reason for permitting the
indictment, while postponing any further proceedings.
It
is impossible to predict whether a prosecutor would ask the attorney
general for authorization to indict—or to make the president an
unindicted co-conspirator—without knowing the degree and nature of any
criminality that might be uncovered, and how including or not including
the president in an indictment would affect the trial of other
conspirators. But the possibility of including the president in an
indictment is not categorically foreclosed.
