DOJ isn’t the authority on whether a president can be indicted

Amidst the furor over the Mueller report, not enough attention has been paid to a crucial premise for many of its conclusions: its assumption that a sitting president cannot be indicted. In the initial pages of Volume II, Mueller states that he was bound by Department of Justice opinions that a president cannot be indicted while in office. Mueller wrote: "Given the role of the Special Counsel as an attorney in the Department of Justice," his office accepted that "legal conclusion for the purpose of exercising prosecutorial jurisdiction."

Mueller thus determined not to evaluate whether the president's conduct was criminal because, "that could potentially result in a judgment that the President committed crimes.... Fairness concerns counseled against potentially reaching that judgment when no charges can be brought." Contrary to those who claim that the Mueller report exonerates President Donald Trump, Mueller expressly declined to assess whether there was probable cause that Trump committed a crime because there was no possibility of a criminal prosecution under Justice Department guidelines.

But the issue of whether a president can be indicted never has been addressed by any court. The Constitution is silent on the question. Interestingly, the Constitution is explicit in providing members of Congress protection for some crimes. The Speech and Debate Clause of Article I, Section 6, specifies that senators and representatives "shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses ... and for any Speech or Debate in either House, they shall not be questioned in any other Place." One would expect that if the framers of the Constitution wanted to bestow on the president even broader immunity, including for felonies, the text would say so.

It is easy to understand why the framers did not give the president complete immunity from criminal prosecutions. The Constitution's drafters rejected the idea of a president who was above the law; that was exactly the type of executive power that they wanted to avoid. Indeed, a central aspect of the rule of law is that no one -- not even the president -- is above the law.

Those who argue that the president is immune from indictment contend that impeachment by the House and removal by the Senate are the only ways of dealing with criminal activity by a president. But this would mean that a president can violate the law so long as for political reasons it is not possible to get a majority of the House to impeach and two-thirds of the Senate to convict. At this moment, it seems unlikely that two-thirds of the Senate would vote to remove President Trump no matter how strong the evidence that he obstructed justice. And the evidence of this in the Mueller report is very strong. A president then is above the law so long as Congress does not act. That can't be right.

The concern is that allowing a sitting president to be indicted would permit any district attorney to interfere with the presidency. Quite the contrary, public scrutiny and public pressure make it highly unlikely that there would be an indictment against a sitting president unless there was very strong evidence implicating him or her in a crime. The fact that no president has been indicted in all of American history, especially given the legal uncertainty of whether it is allowed, belies any reason to think this would be done frivolously or for the district attorney's political gain.

It was not until 1973, in the midst of the Watergate scandal that the Office of Legal Counsel in the Department of Justice issued a policy that a sitting president cannot be indicted. It was why the Watergate grand jury named Richard Nixon as an unindicted co-conspirator. The policy was reaffirmed by the Justice Department in 2000, which said that court decisions in the intervening years had not changed its conclusion that a sitting president is "constitutionally immune" from indictment and criminal prosecution. It concluded that criminal charges against a president would "violate the constitutional separation of powers" delineating the authority of the executive, legislative and judicial branches of the United States government.

This was binding on Mueller because he was a Justice Department employee and not an independent prosecutor as existed prior to the expiration of the Ethics in Government Act in 1999. An independent prosecutor would not have been bound by internal Justice Department opinions. Moreover, the Justice Department is not the authoritative interpreter of the Constitution and its opinions should not be seen as resolving this issue.

The better view is to allow the president, like every other person in the country, to be held accountable for his or her crimes. No one ever should be above the law.