Holding the President Above the Law

After three years of investigations, the Attorney General of Israel indicted their leader, Prime Minister Benjamin Netanyahu, on fraud, breach of trust, and bribery in three separate corruption cases. That is what happens in a democracy that holds no one above the law. Why is that not the case in the United States?

Robert Mueller and his team found many instances of obstructive acts by President Trump and his team; however, he said he could not indict Trump because of a Department of Justice (DOJ) policy that prohibited such action. This policy, written by the Office of Legal Counsel (OLC) of the Department of Justice, asserts that a sitting president cannot be prosecuted.

The Mueller Report stated, “Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations,” and the Report described these acts of obstruction of justice. However, because of the OLC document, they could not bring charges against Trump.

The OLC statement is a DOJ rule, but not settled law, and it should not be. It is not in the Constitution. It is not a law. It is not even a regulation. How is it that our so-called most significant democracy in the world is one that has a president above the law? If no one is above the law, then the president must be indictable. Other democracies indict presidents, as Israel just did.

Ken Starr, the prosecutor in the Bill Clinton case, said he disagreed with the Justice Department’s guidelines that a sitting president cannot be indicted. He and his team concluded that President Clinton was subject to indictment and criminal prosecution, although an imprisonment punishment might have to wait until after he leaves office.

Last month, two federal judges in separate cases questioned this policy, noting that the courts have not given opinions on whether a sitting president can be indicted. U.S. District Judge Victor Marrero, who ruled against Trump in the tax case in New York City, called Trump’s claim to immunity from investigation “unqualified and boundless,” writing that the argument was “repugnant to the nation’s governmental structure and constitutional values.” The judge wrote that accepting Trump’s immunity arguments would mean that not only the president but his relatives and business associates “are, in fact, above the law.”

About the OLC  statement itself, Marrero wrote, “The heavy reliance the President places on the DOJ Memos is misplaced for several reasons. First, though they contain an exhaustive and learned consideration of the constitutional questions presented here, the DOJ Memos do not constitute authoritative judicial interpretation of the Constitution concerning those issues.”

The other federal judge, Chief Judge of the District Court for DC, Beryl Howell, ruled last month that the impeachment inquiry was entirely legitimate and should be treated as such, among other rulings in favor of the impeachment inquiry. But important for my argument here, she wrote, “This OLC legal conclusion [that a sitting president cannot be prosecuted] has never been adopted, sanctioned, or in any way approved by a court.” 

In other words, the entire legal theory that Trump cannot be indicted is just that, a legal theory, not a legal fact.

I will leave aside the position of Trump’s man, Attorney General William Barr, who argues for an “autocratic vision of executive power.” Last Friday, a group of 12 prominent conservative and libertarian attorneys released a statement denouncing Barr for promoting such a view of executive power, which they say is unsupported by history and the U.S. Constitution. Barr’s argument does not rise to the level of legal theory, let alone legal fact.

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