Whatever one’s views on the ultimate questions of whether a sitting president may constitutionally be indicted and for what offenses, they are as a practical (and legal) matter beside the point. This is because Special Counsel Robert Mueller is bound by the opinions of the Department of Justice (DOJ)’s Office of Legal Counsel (OLC) expressly determining, in 1973, that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” The OLC similarly rejected indicting a president but deferring prosecution until after his departure from office, reasoning that “an indictment hanging over the President while he remains in office” would damage the institution of the presidency virtually to the same extent as an actual conviction.
In part reflecting the intervening decision of the Supreme Court in Nixon v. Fitzgerald, which held that a sitting president enjoys an absolute immunity from civil suit even for official conduct within the “outer perimeter” of his duties, DOJ reaffirmed its 1973 opinion in a 2000 OLC memorandum. Even though under Clinton v. Jones the president was subject to civil suit for pre-inauguration conduct not involving review of official acts, the OLC stated that “the burden of criminal litigation” required a different approach — immunity from “immediate prosecution and punishment.” Unlike civil litigation, “criminal litigation uniquely requires the President’s personal time and energy, and will inevitably entail a considerable if not overwhelming degree of mental preoccupation.” Thus, the latest DOJ statement on the question expressly bars the prosecution or indictment of a president.
Unless and until DOJ reconsiders its policy on presidential immunity, and there is no indication at present that Attorney General Jeff Sessions or his deputy are so inclined, Mueller cannot, absent his being somehow exempt from the OLC opinions, seek an indictment against President Donald Trump. The only result of a criminal investigation of the president’s official conduct (and it is not a trivial one) will be a report of the investigation’s findings, which will be presented to Deputy Attorney General Rod Rosenstein in his capacity as acting attorney general, who, in turn, must report to Congress.
There appears to be little wiggle room around these OLC opinions, though former Acting Solicitor General Walter Dellinger has recently suggested that the opinions permit a sitting president in an appropriate case to be named as an “unindicted coconspirator” by the grand jury. President Richard Nixon was so named in the Watergate grand jury indictment. The Supreme Court in United States v. Nixon noted this had occurred but did not pass on the legal validity of the action. But DOJ’s United States Attorneys’ Manual frowns on the general practice: “In the absence of some significant justification, federal prosecutors generally should not identify unindicted coconspirators in conspiracy indictments,” and “[o]rdinarily, there is no need to name a person as an unindicted conspirator in order to fulfill any legitimate prosecutorial interest or duty.” Dellinger suggests that such a naming may be necessary to avoid the running of the relevant statute of limitations against Trump. As the OLC noted in its 2000 memorandum, however, legitimate concerns of this type could be met by other means: A court might, for example, hold that the statute is equitably tolled while the president remained in office or Congress could amend the statute. In any event, Watergate Special Prosecutor Leon Jaworski’s example offers scant precedent for Mueller because Jaworski’s enabling regulations expressly provided that “[t]he Special Prosecutor shall have full authority for investigating and prosecuting offenses arising out of the unauthorized entry into Democratic National Committee headquarters . . . [including] allegations involving the President.” (Those regulations provided an express warrant to proceed against the president but would not moot the OLC’s constitutional objections.)
Just Security’s Ryan Goodman, who is also our colleague at New York University School of Law, argued that a special public-interest justification exists to name Trump as an unindicted co-conspirator if the evidence so warrants. This is because Mueller’s authority and “publicly understood duty to investigate Trump for potential crimes” must also include “the power to say whether Trump was involved in any offences.” Mueller will report the fruits of his investigation, including his conclusions as to whether any offences were committed, to Rosenstein who will, in turn, report to Congress. In these circumstances, it would be inconsistent with the tenor of the OLC opinions and the admonition of the United States Attorneys’ Manual to name the president as an unindicted co-conspirator in a grand jury indictment or presentment, not to mention the due process (in addition to Article II) concerns such a naming would entail.
Harvard University’s Andrew Crespo maintains that the special counsel is not bound by OLC’s opinions on presidential immunity from criminal prosecution. He urges that the OLC’s power to issue binding opinions is inapplicable where an “independent” actor, such as the special counsel, is “authorized by law” to bring prosecutions on behalf of the United States. In such circumstances, the independent actor is free to decide for himself questions of substantive law, including the amenability of a sitting president to a federal indictment. In essence, he argues, binding Mueller to the OLC’s opinions would be inconsistent with the special counsel’s purpose as evinced in the DOJ’s authorizing regulations.
In our view, the special counsel’s regulations make clear he is bound by “the rules, regulations, procedures, practices and policies” of DOJ rules, which include the extant OLC opinions on presidential immunity. Those opinions can be changed but they have not been. Given the opinions’ clarity on the amenability of a sitting president to a federal criminal prosecution and the text and history of the authorizing regulations, the burden is on those arguing that Mueller has the power to indict the president. That burden, we think, cannot be met.
Is the Special Counsel Exempted from the OLC Opinions?
According to a 1987 OLC opinion, its authority to make legal determinations that are binding on the executive branch derives from two sources of authority. The first, 28 U.S.C. § 512, provides that the heads of executive agencies may, upon request, receive an opinion from the attorney general on a legal issue that arises in the performance of that agency head’s duties. The second source, 28 U.S.C. § 516, states that, “[e]xcept as otherwise authorized by law,” the Justice Department, under the direction of the attorney general, has the sole power to conduct “litigation in which the United States . . . is a party.” Under the OLC’s 1987 opinion, §516 confirms the attorney general’s “exclusive and ultimate authority to determine the position of the United States on the proper interpretation of statutes before the courts.” Crespo insists, however, that the “[e]xcept as authorized by law” language in § 516 indicates that the special counsel is not bound by the opinions of the OLC, by analogy to so-called independent administrative agencies who interpret and enforce their statutes without being bound by executive interpretations.
The analogy is sorely misplaced: The special counsel is a delegatee of the attorney general not of Congress. DOJ’s authorizing regulation for the special counsel vests Mueller with “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 CFR §600.7(a). But the “independent” authority of United States Attorneys, no different than that of the special counsel, is also subject to the attorney general’s direction and supervision. As 28 CFR §0.5(a) confirms, the attorney general “shall … supervise and direct the administration and operation of the Department of Justice, including the offices of U.S. Attorneys….” That authority necessarily includes the power to prescribe the legal positions of the Department of Justice, including positions dealing with core separation-of-powers concerns. In 28 CFR §0.25, the attorney general delegated some of that authority to the OLC by granting it the power to “render opinions to the Attorney General and to the heads of the various organizational units of the Department on questions of law arising in the administration of the Department….” The OLC recognizes as much, stating, in its Memorandum on Best Practices for OLC Legal Advice and Written Opinions, that “OLC’s core function, pursuant to the Attorney General’s delegation, is to provide controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government.”
Because the amenability of a particular defendant to indictment and prosecution is a “question of law arising in the administration of the Department”—and the amenability of a sitting president to federal prosecution in particular is a “question of law that [is] centrally important to the functioning of the Federal Government”—it follows that the OLC’s opinions on the legal viability of indicting or prosecuting a president are as binding upon United States Attorneys (and the special counsel) as are directives from the attorney general.
Crespo also offers a purposive argument. Since the primary purpose of the special counsel is to serve as an independent and impartial prosecutor who can discharge the obligations of the Justice Department where conflicts of interest or political pressures would otherwise prevent it, the special counsel should not be bound by OLC’s position on substantive questions of law. While it is undeniable that independence is a key part of the role, the question remains as to how much independence the DOJ’s regulations afford the special counsel. Here, it is instructive to remember the historical context that gave rise to the special counsel regulations.
The narrowness of the authorizing regulations, especially when compared to the powers afforded to an independent counsel under the now-lapsed Independent Counsel Act—reflects the widespread discontent with the independent counsel’s investigation of President Bill Clinton. That investigation—which ranged from an Arkansas land deal to a sexual encounter with an intern in the Oval Office—led the Department of Justice, and Congress alike, to question the wisdom of vesting too much power in an unaccountable prosecutor. While no one wants to bring back the Independent Counsel Act (ICA), proponents of the view that the special counsel may essentially disregard longstanding Justice Department policy via OLC opinions attribute to him a power much like that of an independent counsel. We believe the history and text foreclose this argument.
In 1999, the White House and Congress allowed the Independent Counsel Act to lapse. In its place, the Justice Department promulgated regulations establishing the Office of Special Counsel. The Independent Counsel Act, enacted in 1978, reflected a premise that near-complete independence and autonomy were essential to the impartial administration of wrongdoing by high officials. It did so by placing the independent counsel outside the normal hierarchy of the Department of Justice. Appointment of an independent counsel began with an application by the attorney general; after a preliminary investigation, the attorney general would tender names of persons to be considered for appointment by a special three-judge panel of the D.C. Circuit. 28 U.S.C. § 592. The court would then select an independent counsel and establish his or her jurisdiction. Vested with the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice,” the independent counsel was also placed beyond the bounds of normal DOJ discipline. 28 U.S.C. § 594. Though encouraged to “comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws,” an independent counsel was given express authority to decline to follow DOJ policies “to the extent that doing so would be inconsistent with the purposes of” the statute, § 594(f)(1). Though removable by the attorney general for good cause, an independent counsel was entitled to seek judicial review of his or her removal, § 596(a)(1), and the reviewing court could reinstate the counsel. § 596(a)(3).
Mueller’s office differs from the independent counsel in almost every relevant respect. The attorney general appoints the special counsel (in Mueller’s case, Rosenstein appointed him, as Sessions had recused himself from the Russia investigation). Exercising only “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney,” the special counsel is subject to a continuing mandate that he “shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” 28 CFR 600.7(a). No exception is provided for ignoring policies deemed inconsistent with the special counsel’s mission. The removal provision applicable to the special counsel is broader than that applicable to the independent counsel, with DOJ regulations providing for removal for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Compare 28 CFR § 600.7(d) with 28 U.S.C. § 596(a)(1). Mueller is, unlike an independent counsel, subject to substantial oversight: The “Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 28 CFR 600.7(b). When a special counsel is terminated, the regulations require that the attorney general make a report to Congress; there is no express provision for judicial recourse. (Bills to provide such a remedy are presently pending in Congress.)
The many differences between the Independent Counsel Act and the special counsel’s enabling regulations reflect fundamental concerns about the kind of independent authority Mueller has and should have. In almost every instance, the regulations significantly curtail the power of the special counsel as compared to an independent counsel. The source and narrowed scope of his mandate, the express and unqualified command to obey the policies of the Department of Justice without granting him any discretion to disregard those policies, the clear choice to make him accountable to the attorney general rather than a court, and the decision not to provide any judicial avenue for reinstatement or other reconsideration of a special counsel’s termination, all suggest that the Department of Justice—and Congress, in failing to reauthorize the Independent Counsel statute—repudiated the model of independent prosecution established by the ICA and advanced now by many writing on the Russia investigation.
Crespo also advances a textual argument. He notes that 28 CFR §600.7(a) provides that the special counsel shall “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” This language, in his view, refers not to matters of substantive law, but only to questions of procedure. We do not believe this view is sustainable.
The operative provision deploys a sequence of general terms —”rules, regulations, procedures, practices and policies,” which on their face go beyond DOJ procedures to provide a fairly inclusive listing of positions, rulings, and interpretations of the department. Two additional pieces of textual evidence confirm the intent to encompass more than just procedure. First, the fact that the sole ground provided for the attorney general to interfere with a special counsel’s investigation is where a counsel’s “investigatory or prosecutorial step” deviates so markedly from “department practices” so as to be “inappropriate or unwarranted” suggests as much. 28 CFR §600.7(b).
When the attorney general makes that determination, he must make a report to Congress. The choice of this procedure, which directly implicates another branch in the affairs of the executive branch, suggests an intent to afford Congress an opportunity to step in and correct the conduct of the attorney general and, where necessary, to either provide new statutory authority for an independent investigation or to conduct one itself. Second, subsection (d) provides that, among the sorts of good cause for which a special counsel may be removed, violation of department “policies” is one such ground. 28 CFR §600.7(d). Were the word “policies”—and the other terms in that list—only to refer to matters of procedure, not matters of substantive law, this provision would make little sense. It would also provide that a special counsel may be discharged for violating mere procedures, but not for making profoundly erroneous and monumentally consequential determinations of law.
Our colleague at New York University, Bob Bauer, argued in a piece for Just Security that compliance with OLC opinions “seems fundamentally inconsistent with the core teachings of United States v. Nixon, later Clinton v. Jones, because it would effectively dislodge the courts from their role as final arbiters of the question of the president’s indictability.” We disagree. No doubt the courts, and ultimately the Supreme Court, have the final say on what the Constitution means, but only in cases that properly come before them. The members of Congress, the president and all officers of the United States government, like the attorney general, take on oath to obey and faithfully execute the laws and Constitution within their province. But just as Congress may decide to vote on a law, or repeal a law, or decline to regulate in an area because of constitutional concerns, so, too, the Justice Department, through the attorney general, can implement its views of constitutional law by bringing, or declining to bring, a prosecution. Nothing in Nixon or Jones requires that a federal prosecution of a sitting president be brought.
In sum, applying the language of the regulation to the circumstances here, the OLC opinions and their bar to indicting a sitting president apply to Mueller. Even if one denies that the opinions are themselves “rules, regulations, procedures, practices and policies,” it is undeniable that they give rise to “practices and policies” within DOJ. What is critical to note here is that, even if one rejects the argument that the opinions are themselves binding on Mueller, the fact that long-standing practice and policy disfavor indictment of a sitting president, coupled with his obligation to conform his conduct to those practices and policies, renders any attempt to pursue such a prosecution improper.
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