Mr. Mueller’s Peculiar Legal Gaffe
Robert Mueller stated he couldn’t indict a sitting President because it is “unconstitutional.” It was a bold statement to make especially since it is not true. This OLC opinion that I presume Mueller is basing his own conclusion upon has not been tested in the courts. Furthermore, there is nothing in the Constitution that says that the President is above the law which is effectively what such a conclusion asserts.
In fact, I would argue the Constitution states the exact opposite: the President is not above the law. And I would probably win my argument dependent only upon the number of beer drinking judges on the bench that might not be totally impartial. When our Constitution was written our founders had just a few years earlier fought a war to end the rule of a man who was legally above the law. That would be the King of England for those who missed the memo. When considering that our founding fathers would not ever want any man to hold that much power ever again, the statement Mueller makes seems absolutely absurd.
It is generally understood that Mueller is basing his conclusion on an untested opinion by the OLC (Office of Legal Counsel) that was offered in 1973. Ken Starr’s team in the 1990’s offered a more recent opinion. Starr’s team asserted that a sitting President can be indicted. Around that same time, a Supreme Court ruling affirmed that a sitting President can face some civil lawsuits (Clinton v. Jones, 1997). And prior to that ruling, in 1982 (Nixon v. Fitzgerald), the Supreme Court’s Chief Justice, Warren Burger, in his concurring opinion that favored protecting Presidents against being sued if their actions were directly associated with official duties, stated this:
“The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties. Ante at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits…”
“In United States v. Brewster, 408 U. S. 501 (1972), we held that the Speech and Debate Clause does not prohibit prosecution of a Senator for accepting a bribe designed to influence his legislative acts…”
“When judicial action is needed to serve broad public interests — as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon— the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not…The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions…”
If the Supreme Court ruled that sitting Presidents are not immune from all civil lawsuits (Clinton v. Jones) and if an earlier 1982 ruling included statements by the Chief Justice that indicates civil lawsuits are less worthy of interest than criminal offensives when perpetrated by elected officeholders, then there should be no question that a sitting President can be indicted for criminal offenses. The integrity of the office demands that we have people holding that office who have respect for the law. Presidents are required to face criminal prosecution just like any other citizen, and, in fact, they should be held to a higher bar than any other citizen given the importance of the office.
Failing to prosecute whenever egregious criminal offenses are perpetrated by occupants of our nation’s highest office damages the integrity of the office itself and damages our nation’s credibility as preserver of justice. The arguably errant 1973 OLC opinion was rendered by a likely Presidential apologist at a time when another more infamous President to date faced the threat of criminal prosecution. Had Mueller explicitly stated his intention to follow a traditional standard set by previous Presidential Investigators to refer the matter to Congress then I do not believe many, absent the political pundits, would find fault with that. However, when evaluating the incredible amount of dissention, past Supreme Court opinions and the quality of arguments made against that infamous OLC opinion of 1973, it is all the more reason to believe that Mueller’s assertion that his failure to indict a sitting President is settled constitutional law was a very peculiar legal gaffe to make indeed.
References:
https://www.justsecurity.org/44264/supreme-court-justices-president-indicted/
https://en.wikipedia.org/wiki/Clinton_v._Jones
https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html
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