If you are watching the news lately, it is almost impossible to avoid discussions of impeaching the President. Inevitably, as part of the discussion, a commentator will state a sitting President cannot be indicted, without providing any real rational, other than referencing a memo from the Office of Legal Counsel. I call BS!

On September 24, 1973, during the height of the Watergate, the Office of Legal Counsel drafted a memo titled, “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” The memorandum concluded all federal officers except the President are subject to criminal indictment while in office, but the President is uniquely immune from indictment.

The memo was written by Robert G. Dixon Jr., a Political Science Professor, and Professor of Law, at Washington University, who was brought to the Justice Department by Elliot L. Richardson, the President’s Attorney General. Essentially, the memo was drafted by Nixon appointees, and loyalists. During this time, both President Nixon, and Vice President Spiro Agnew were both being investigated. Not unlike today, both the President and the Vice President attacked the investigation, leakers, and the press to distract from their own culpability. Specific members of the FBI, and Justice Department were spot lighted, and impuned.

Robert Dixon, may have been a man of character, and I am not commenting on his reputation. However, his opinions were likely shaped by his philosophy of juris prudence, and the pressure of the Justice Department, at that time. After all, it is important to remember he was brought into the Administration because his opinions aligned with theirs. Further, the amount of political pressure on a Justice Department under siege, by its own President, was enormous. It begs credulity to think these factors would not bias the opinion expressed in the memo.

The memo went unchallenged for years, until Bill Clinton was threatened with impeachment, during the Monica Lewinsky scandal. Again, conveniently, the opinions expressed in the memo were reaffirmed, and it has not been reconsidered since.

The history of OLC memos is not without controversy. During the George W. Bush administration, the OCL wrote an infamous “Torture Memos”, to justify the use of harsh interrogation tactics after 911, including sleep deprivation, stress positions, and waterboarding. Many considered these tactics to be illegal, but the memo helped provide legal cover for the unethical practices. The Trump administration used OCL memos to justify the Presidents’ travel ban, prior to the ban be struck down by numerous courts. These memos have, at times, have been used to justify the political positions of various administration, using dubious legal rationales.

OCL memos are not considered binding law, but are followed by the Justice Department as policy. Interestingly, Ken Starr, the Special Counsel tasked with investigating Bill Clinton, came to a different conclusion. During his investigation he concluded a sitting President could be indicted, and in fact he had drafted an indictment of Bill Clinton, although he did not file it. A possible reason for the different conclusion lies in how Ken Starr was appointed. Ken Starr was appointed under a Special Counsel Statute which required the Special Counsel to report to a three judge panel, rather than to the Justice Department Directly. This statute was implement in response to Watergate, to give Special Counsels independence. The law has since expired.

The idea that a President cannot be indicted is based largely on the concept a criminal trial would such a distraction, the President could not faithfully execute the duties of the office. Since a President is sworn to faithfully execute the laws, I am not exactly sure how a President can execute the duties of the office, while committing felonies? This seems to be an oxymoron, but what do the courts have to say about this issue?

There are only two Supreme Court Cases that directly address whether a sitting President has immunity from any sort of Judicial Process, Nixon V. the United States, and Clinton V. Paula Jones. Neither case directly addressed whether a sitting President can be criminally indicted. During Watergate, President Nixon resisted a subpoena, to turn over the Watergate tapes to investigators, based on Presidential immunity, and the case was fast tracked to the Supreme Court. The Supreme court held a sitting President is subject to subpoenas for evidence which could be used in a criminal prosecution against them. President Clinton was subpoenaed to testify in a civil case brought by Paula Jones, who accused the President of sexual misconduct. After resisting the subpoena on grounds of Presidential immunity again, The Supreme Court in that case ruled a sitting President must respond to a subpoena to testify in a civil case, if the case was unrelated to executing the duties of the Presidency. Although, these cases confront subpoenas and not criminal indictments, it is important to note, both cases ruled the President must comply with the law. There is no such thing as presidential immunity in the constitution, nor in statute, and the Supreme Court has not ruled on the issue. Perhaps it is time?

There is a long standing legal principle that no one can be a judge in their own case. Congress has the authority to pass a new Special Counsel Statute, removing supervision of special counsels from the administrations, and returning their supervison back under a three judge panel. Independence is critical, if we want Presidents to be accountable to the law, and we will only have good government, if we demand it. The only way the Supreme Court will rule on this issue, is if someone takes up the challenge and indicts a President.