By Daniel Cotter*
When the Mueller Report was expected in the early months of 2019, the question of the potential for a sitting president to be indicted was debated. The main argument against the ability to indict a sitting president was the September 24, 1973, Office of Legal Counsel (“OLC”) memo drafted by President Richard Nixon’s OLC in the wake of his impeachment. The 1973 OLC memo was reiterated in an October 2000 OLC memo after the impeachment trial of President Bill Clinton. After the impeachment trial of President Donald J. Trump, in which the Senate Republicans voted against the introduction of any witnesses or evidence, the prohibition against indicting a sitting president must be revisited.
Supreme Court on Civil Matters
In the only instance we have (to date) of a sitting president being subject to lawsuits while sitting as president is the case Clinton v. Jones, 520 U.S. 681 (1997). The Court addressed the question of whether a sitting president is entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office. It is a case that, when read closely, would apply with equal, if not more, force in the criminal context, especially as both the decision and the 1973 OLC memo discuss the issues of statute of limitations present.
In a unanimous decision, the Court held that the President enjoyed no such absolute immunity, at least in civil cases, writing:
The principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.
Justice Stevens noted that the primary concern when considering presidential immunity is the impact it might have on the ability of the sitting president to conduct himself. Justice Stevens wrote, “Our central concern was to avoid rendering the President ‘unduly cautious in the discharge of his official duties.’” 520 U. S. at 693–94 (citation omitted).
A close reading of the Jones decision would suggest that the same rationale for permitting a sitting president to be subject to civil prosecution applies to a criminal indictment. First, in a civil case, arguably the defendant is subject to a more extensive time commitment, as there is a deposition. The same does not present itself in a criminal prosecution. The Court did not effectively answer why a civil, but not a criminal, case could proceed against a sitting president. The language of the U.S. Constitution, the OLC Memo addressing President Nixon in 1973 as confirmed in 2000 and recently, and other federal officers all support the concept that a president, like any other officer, can be criminally indicted and prosecuted while in office.
Article I, Section 3, Clause 7
At least one court has found that at least in the case of federal judges, the provision of Article I, Section 3, Clause 7, does not require impeachment before indictment and trial. The constitutional provision provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The Office of Legal Counsel
In 1973, the OLC found 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” in its 1973 Memo considering the question in the context of President Nixon. The 1973 OLC Memo concluded impeachment is not a prerequisite to the indictment and trial of an officer of the United States government, noting:
In sum, the analysis of the text of the Constitution and its practical interpretation indicate that the Constitution does not require the termination of impeachment proceedings before an officer of the United States may be subjected to criminal proceedings.
The 1973 OLC Memo also found that requiring impeachment first presented major issues of statutes of limitations, stating:
A similar consideration is presented by the statute of limitations. If an officer cannot be prosecuted prior to impeachment, the criminal statute of limitations could easily run in his favor, If his immunity blocked effective prosecution of coconspirators, the statue [sic] of limitations might run in their favor too.
Finally, the 1973 OLC Memo addresses the question of whether a president might be indicted while in office, positing:
It has been suggested in the preceding part that Article 1, sec. 3, clause 7 of the Constitution does not require the exhaustion of the impeachment process before an officer of the United States can be subjected to criminal proceedings. The question therefore arises whether an immunity of the President from criminal proceedings can be justified on other grounds , in particular the consideration that the President’s subjection to the jurisdiction of the courts would be inconsistent with his position as head of the Executive branch.
The OLC came down on the side of the president not being amenable to indictment while in office. However, the OLC never explained how impeachment could proceed against a sitting president, since the same argument could be made as to distraction and official duties. Maybe as confusing and unclear is that after concluding the president was not subject to indictment, the OLC considered whether a vice president had the same immunity but held that the vice president did not have such protections.
The language of Article I, Section 3, Clause 7 has not been tested in the context of the presidency, but the OLC has held to the view that a president is not amenable to indictment and criminal prosecution while in office. The 2000 Memo did not add any new insights into the mix, and did not address why the Jones case did not change the analysis, other than to dismissively note:
Clinton v. Jones, which held that the President is not immune from at least certain judicial proceedings while in office, even if those proceedings may prove somewhat burdensome, does not change our conclusion in 1973 and again today that a sitting President cannot constitutionally be indicted or tried.
2000 Memo at p. 238.
Again, the 2000 Memo conclusively stated again that Jones did not change the conclusions from 1973:
And, notwithstanding Clinton’s conclusion that civil litigation regarding the President’s unofficial conduct would not unduly interfere with his ability to perform his constitutionally assigned functions, we believe that Clinton and the other cases do not undermine our earlier conclusion that the burdens of criminal litigation would be so intrusive as to violate the separation of powers.
2000 Memo at p. 244.
The 2000 Memo repeatedly asserts the difference in burden of a criminal versus civil case, but fails to distinguish between the two and also fails to address how impeachment is less intrusive. The 2000 Memo states:
To be sure, in Clinton v. Jones the Supreme Court rejected the argument that a sitting President is constitutionally immune from civil suits seeking damages for unofficial misconduct. But the distinctive and serious stigma of indictment and criminal prosecution imposes burdens fundamentally different in kind from those imposed by the initiation of a civil action, and these burdens threaten the President’s ability to act as the Nation’s leader in both the domestic and foreign spheres. Clinton’s reasoning does not extend to the question whether a sitting President is constitutionally immune from criminal prosecution; nor does it undermine our conclusion that a proper balancing of constitutional interests in the criminal context dictates a presidential immunity from such prosecution.
2000 Memo at p. 249.
The 1973 and 2000 Memos do not have any strong basis in law or the Constitution, and other officers have been indicted.
Judges Can Be Indicted
In a case that involved former Illinois Director of Revenue Theodore J. Isaacs, the Seventh Circuit Court of Appeals held that a federal judge was indictable and could be convicted prior to removal from office. United States v. Isaacs, 493 F.2nd 1124 (7th Cir. 1974), cert. den. sub nom. Kerner v. United States, 417 U.S. 976 (1974). The per curiam opinion concluded with respect to the argument that one must be impeached and convicted first before being indicted:
The Constitution does not forbid the trial of a federal judge for criminal offenses committed either before or after the assumption of judicial office. The provision of Art. I, 3, cl. 7, that an impeached judge is “subject to Indictment, Trial, Judgment and Punishment, according to Law” does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy.
The 1998 Memo
Adding some question to the mix is a 1998 memo commissioned by then-Independent Counsel Kenneth Starr, one of President Trump’s defense counsel. Starr asked then-University of Illinois Professor Ronald Rotunda “whether a sitting President is subject to indictment.” Starr then “did not consider the 1973 Justice Department memo binding on him.”
Rotunda supported the notion that a president can be indicted, citing that other countries with democracies do not recognize immunity from prosecution. (Interestingly, in 2019, Israel Prime Minister Benjamin Netanyahu was indicted.)
Rotunda concluded, after exploring history, the independent counsel act, and other law that:
These factors all buttress and lead to the same conclusion: it is proper, constitutional, and legal for a federal grand jury to indict a sitting President for serious criminal acts that are not part of, and are contrary to, the President’s official duties. In this country, no one, even President Clinton, is above the law.
Rotunda memo at p. 55.
While part of the Rotunda memo definitely addresses that through the Independent Counsel Act, the president had ceded his enforcement of some prosecutorial power, the overarching theme of the Rotunda memo is that “no one is above the law.”
In the recently concluded impeachment trial, several Senators concluded President Trump had committed wrongful acts, yet appeared to ignore their constitutional obligations to decide impartially. For example, Senator Lamar Alexander stated:
I think he shouldn’t have done it. I think it was wrong. Inappropriate was the way I’d say — improper, crossing the line. And then the only question left is who decides what to do about that.
When asked who should decide, he answered the people.
He was not alone in his views, with others such as Senators Lisa Murkowski and Marco Rubio stating what Trump had done was impeachable. Trump defense team member Alan Dershowitz also argued a unique “public interest” theory of impeachment.
Effectively, the Senate Republicans have voided any real significance of impeachment out of the Constitution.
Given the specious basis for the OLC memos, the doubt about how controlling it is, the Jones case, and the diminishment of how impeachment should work, the position on not indicting a sitting president must be revisited. The Democratic nominee, should she or he win the White House, should take the bold step of immediately having its OLC revisit and overturn the OLC memos. On that we agree with the concept that no one is above the law, including the president.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).