[Listen to the audio version by using the player below.]

I was surprised to learn that investigation of potential wrongdoing by the President was constrained, not by law, but by a memo. So many people, lawyers, prosecutors, politicians, and pundits referred to immunity from prosecution during and after the Mueller investigation that I thought it was inscribed in a foundational document, perhaps written with a quill on wrinkled parchment. I set out to read it for myself and quickly became mired in lawyer-speak. I jotted down a few notes along the way. The memo in question turned out to be two memos, neither enshrined in museums nor written on aged parchment. One was produced in 1973 and the other in 2000. Both were prepared by the Office of Legal Counsel within the Department of Justice.

The first thing that I noted was that the concept of Presidential immunity from criminal prosecution is not law – it is an interpretation of what the Constitution does not say. The memos are essentially opinions that the Department of Justice has adopted as guidance.

These memoranda “…concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while in office.” Why I wondered, is the President the only exception? Although it is not explicit in the Constitution, in 1973, the DOJ lawyers concluded, “…the indictment or criminal prosecution of a sitting president would be unconstitutional because it would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions and this would be inconsistent with the constitutional structure.”  This seems to argue that the President is too busy doing important things to be interfered with while he is in office. I have a few questions.

  • What are the President’s constitutionally assigned functions that would be interfered with that are not already impacted by golf outings and re-election events? The Presidency is actually a team, and as was witnessed during the Clinton Presidency, a president can defend himself in a civil suit while performing constitutional functions. One can walk and chew gum, it seems.
  • What is meant by the word “impermissibly” in the above statement? Who was it that decided what level of legal accountability is permissible or impermissible for a sitting president? Is there a list of criminal wrongdoing that enumerates what is permissible and what is not, or is any accountability under the law intended to be barred by these words on a page?
  • If the alleged criminal activity was carried out while in office and otherwise performing constitutional functions, has the Office of the Presidency become a criminal instrument? Is there no judicial remedy for a circumstance where the privilege of the office itself becomes a criminal instrument? At what point would the crime obviate the privilege?
  • Is the Presidency itself tarnished by the alleged criminal activity – a condition that outlives a sitting president and impacts the constitutional structure?
  • If alleged criminal activity is not subject to the judicial process, is our government aiding and abetting that activity?
  • Suppose constitutional functions assigned to the Presidency are performed corruptly by the officeholder. Does mere action in the office, no matter how corrupt, bar our civil society from seeking timely legal accountability? 
  • Why is it that department lawyers in the Executive branch solely determine if criminal prosecution of their Chief Executive should or should not occur?

Courts have previously determined that no person, even the President, is above the law. He or she, therefore, must be subject to the law, as are we all. The argument that criminal indictment and prosecution would interfere with constitutional functions is a secondary consideration, particularly if criminal conduct is alleged to occur during the conduct of constitutional duties. Illegal activity, if unchecked, taints the Office of the Presidency through its use as a criminal instrument and impacts the very constitutional structure that the concept of immunity was envisioned to preserve.

Some have argued that voters have the final say in the matter, and I’m not sure that’s the case as a practical matter. Voters are constitutionally constrained from exercising their power to once every four years for the Presidency. However, voters rely on the equitable application of the law in the interim. Additionally, voters are seldom able to know the intimate facts of individual cases due to privacy and security concerns. Law enforcement personnel that serve the public are in that position and are expected to act in the public interest.

Special consideration should be given to a President to shield them from undue interference, but the delay or suppression of justice should not be among them. Special courts and grand juries can be impaneled to deal with such cases. But, most importantly, justice must be served, and a memorandum to file should not supersede that mandate.

Kevin Deeny