Nearly 20 years ago, Ken Starr, former solicitor general and judge, asked me to evaluate whether a federal grand jury could indict a sitting president. Starr was then the independent counsel investigating Whitewater and other scandals associated with President Clinton. He turned to me because I was former assistant majority counsel, Senate Watergate Committee, and coauthor of a [warning, shameless self-promotion] widely cited Treatise on Constitutional Law (now six volumes long, in its 5th edition).
My conclusion is (or may be) relevant again. It’s nice to know what I write is timeless. The National Archives, in response to a freedom of information request from the New York Times, has now made public most of my Opinion Letter (it kept secret two portions).
Opinion Letters, unlike briefs, are not argumentative. They should represent the lawyer’s objective evaluation and prediction of what courts are likely to do, even if clients don’t like the results.
My Letter is 56 pages long, with 164 footnotes, not because I was paid by the word but because the issue is complex. My conclusion is pithier. A federal grand jury can probably indict a sitting president for committing a serious felony, unless other rules preclude that (which is the case here—more about that shortly). There is no case directly on point, but the language of the Constitution, language in several cases, and the present Justice Department rules support my conclusion.
First, the framers knew how to write an immunity clause. For representatives and senators, there is a “privilege from arrest” in civil cases when going to and from Congress—a privilege now irrelevant because we no longer use arrest in civil cases. Also, they may not be criminally prosecuted for what they say in Congress (“for any Speech or Debate in either House”). Charles Pinckney, a signer of the Constitution, said, “No privilege of this kind [given to Congress] was intended for your Executive” because “no subject had been more abused than privilege.” Gravel v. United States(1973) said, “executive privilege has never been applied to shield executive officers from prosecution for crime.”
Some argue that criminal prosecution would distract the president and make him unable to perform his duties. The 25th Amendment answers that objection, by offering a mechanism to keep the Executive Branch running if the president is temporarily unable to discharge his powers. In this country, no one is above the law.
On the other hand, a state prosecution of the president is probably unconstitutional because of the Supremacy Clause. There may be thousands of state prosecutors, many of whom might love to secure their 15 minutes of fame by indicting a sitting president, but state prosecutors may not interfere with presidential power.
There is another caveat: the Supreme Court has reaffirmed for nearly 150 years that the president has complete, unreviewable power over federal criminal cases. As the unanimous Court said in the 1974 Watergate Case, United States v. Nixon, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” citing Confiscation Cases.
Nixon said the Watergate prosecutor was no ordinary federal prosecutor because the attorney general gave him “unique authority and tenure.” Admittedly, the Court said, the Department of Justice could change its regulations, but “So long as this regulation is extant it has the force of law.” The present rules of the Justice Department do not mimic those rules.
After Watergate, Congress enacted a special prosecutor statute; though it no longer exists, it applied at the time I wrote my Opinion Letter. Because a statute protected that Independent Counsel (Ken Starr) from removal, he could ask the grand jury to indict.
In contrast, the present regulatory special counsel, (Robert Mueller) does not have the tenure afforded by the unique Watergate regulations and certainly does not have any statutory tenure.
In addition, the present regulations require that Mr. Mueller must follow Justice Department rules and policies. In October 2000, during the waning days of President Clinton’s second term, the Justice Department’s Office of Legal Counsel (OLC), issued an Opinion that concluded “a sitting President is immune from indictment as well as from further criminal process.” The regulations that govern Mr. Mueller require him to follow the Department of Justice “rules and policies.” The OLC’s opinions are “controlling” on the Executive, so this regulatory independent counsel, unlike a statutory independent counsel or the Watergate regulatory counsel, cannot indict a sitting president, which is what my 1998 Opinion Letter concluded. If you don’t like that result, blame President Clinton.
Yet, it’s premature by a long shot to think about indicting the president because all we have now, frankly, is a mountain of innuendo. Some argue Trump obstructed justice when he terminated FBI Director James Comey. However, Comey’s departure didn’t obstruct any investigation. FBI agents were investigating both before and after Comey’s departure. Deputy Attorney General Rod Rosenstein was in charge of the Russian investigation both before and after Comey left. Comey seems to think he was in charge, but the Justice Department is in charge, a point that Rosenstein emphasized in his memorandum criticizing Comey.
Second, Trump’s firing Comey in May cannot be obstruction simply because three months earlier, February 14, 2017, Comey now says Trump had told him that Flynn’s “a good guy. I hope you can let this go.” Comey now claims this comment may be obstruction, but, if he really thought that, he had a legal obligation to report it last February. Title 28, § 535, of the U.S. Code clearly requires a government lawyer who uncovers evidence that a government official has violated the law to report it to the Attorney General. Comey reported nothing, which indicates that he did not think there was any obstruction at the time. Comey’s actions are inconsistent with the idea he thought there was an obstruction of justice. See also, In re Lindsey (D.C. Cir. 1998) (per curiam).
The FBI is supposed to be nonpartisan, but it is not supposed to be independent of the president. Consider, for example, if FDR had fired FBI Director J. Edgar because of his investigation of Albert Einstein, or if FDR told Hoover to stop investigating Einstein. (“Einstein’s a good guy; I hope you can let this go.”) Do we really think that FDR would be obstructing justice? Or, assume that Harry Truman ordered Hoover to stop investigating Ernest Hemingway. Again, do we really think that Truman’s order (a lot more specific than Trump’s “hope”) is a crime? If JFK told Hoover that Martin Luther King is “a good guy” and you must stop investigating him, we would not accuse JFK of obstruction for firing Hoover. Instead, we would have praised JFK.
None of these hypotheticals compare to the charges involving President Nixon, that he or his aides offered hush money or promises of executive clemency in exchange for silence.
Recall also that President Obama said repeatedly he has prosecutorial discretion: the executive branch (including the FBI) has limited resources, and the president has the power to direct those resources.
President Trump has the same power that President Obama did to direct resources.
Finally, we should be very cautious in converting policy disputes into criminal disputes. There were criminal investigations and prosecutions of Wisconsin Governor Scott Walker, Texas Governor Rick Perry, Alaska Senator Ted Stevens, and House Speaker Tom Delay, of Texas. Courts threw out all these cases, but only after much time and expense. A New York state grand jury indicted President Reagan’s labor secretary, Ray Donovan, and six others, for larceny and fraud. Donovan resigned as Labor Secretary, the state prosecutor got his 15 minutes of fame, and then the jury acquitted them all. Donovan asked, rhetorically, “Which office do I go to to get my reputation back?”
Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.