As my final post for 2018, I plan to cover two topics, one that people have been talking about nearly non-stop and one that (I hope) will put a smile on your face to end the year. Some might call this post a bit schizophrenic. I prefer well-rounded.
Can the President be indicted?
I’m going to approach this issue from a purely legal standpoint. There are policy and political questions galore, some of which might ultimately give us the practical answer. Put another way, the decision on whether or not to indict a President may turn on some of the same issues that go into deciding on whether to indict anyone. It’s not should you, it’s can you. I’m only talking about the “can”.
Let’s start with the Constitution. The Constitution does not prohibit the indictment of a sitting president, at least not specifically. (Compare that to Article I, Section 6, which contains the Speech and Debate Clause, exempting members of Congress from arrest for the speeches and debates in Congress.) The Constitution does, of course, have provisions for impeachment, and some scholars argue that that is the only way to proceed against a sitting President. If the Framers had wanted to allow a sitting President to be indicted, they argue, they would have provided the means.
And this was, essentially, the argument of the Justice Department in an October 2000 memo from the DOJ’s Office of Legal Counsel, which agrees with a 1973 OLC memo. (You can read it here.) Aside from the ability to impeach a President, the OLC memo focused on the fact that an indictment would “impermissibly undermine the capacity of the executive branch to perform its constitutionally designed function.” In plain English, an indicted President couldn’t do his job. And you might remember the Clinton v. Jones case, 520 U.S. 681 (1997), which was a unanimous opinion holding that the President does not have immunity from civil actions. That is different, the OLC argued, because civil suits allow for flexibility of scheduling (like the (in)famous Clinton deposition) that criminal cases do not.
Two issues come immediately to my mind. First, the OLC memo is just that: a memo. True, that memo is now part of DOJ’s policy and is binding on the Department, but it is not, say, an opinion of the Supreme Court. Second. while this OLC opinion is the one that you hear about all the time, it is not the only DOJ memo on the subject. There are two others, from the Special Counsel investigating Nixon and the Independent Counsel investigating Clinton, that reach the opposite conclusion. A great post in Lawfare by Andrew Crespo (Harvard Law) lays this out in very readable detail. His conclusion? The 2000 OLC memo is not binding on Special Counsel Mueller’s office, both because of the terms of the memo and the Special Counsel regulations. (The Crespo piece has many links to documents and other postings. Really worth a read.) Another Lawfare piece by Walter Dellinger makes the same point and emphasizes what many folks may remember: that the only time the question of a sitting president being indicted came up, the answer was “Yes”. Nixon was indicted as an unnamed co-conspirator. And if you only want to follow one person on this issue, I can’t recommend Neal Katyal too highly (here is the link to his Twiter feed.) He wrote the Special Counsel regulations and has provided a lot of insight into this issue. Besides, he has argued before the Supreme Court 37 times, some of them as Acting Solicitor General.
One more point. What if some of the crimes the President is charged with happened before he was president? And what if the alleged crimes were integral to his achieving the office? The argument then is that the crimes are not done while he was President, but they had a role in making him President. Do you think the Framers would think that a president who got into office illegally is suddenly immune from prosecution? Many commentators, and yours truly, don’t think so.
Dr. Seuss Goes to Court. Well, at least his characters do.
What do the Lorax, Cat in the Hat, One Fish, Two Fish, and the Grinch all have in common? Well, they are all Dr. Seuss characters. And they are all featured in federal court opinions.
Yes, Dr. Seuss’s characters have made it to federal court, in almost every way imaginable. (A hat tip to Prof. Daniel Hemel of the University of Chicago Law School for putting this out on Twitter). Well, which kind of case you might wonder? Copyright comes to mind, and Dr. Seuss Enterprises (yes, that exists) has gone to court to protect the Dr. Seuss copyrights, particularly from satires and parody. But have the characters he created shown up as part of judicial opinions in other areas?
Yes! Just this month, the 4th Circuit quoted The Lorax in an environmental law case throwing out a power company’s permit to build a pipeline through two national forests. The judges cited Dr. Seuss’ in The Lorax: “We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’” And that was not the first time Dr. Seuss’s characters gave voice to the federal judiciary. In 2015, the dissent in Yates v. United States cited One Fish, Two Fish, Red Fish, Blue Fish to argue that a criminal statute should be interpreted to hold that a fish is a tangible object (I kid you not). And it doesn’t stop there.
Back in 1988, the First Circuit pointed to The Cat in the Hat to help interpret Massachusetts’ contract law. But I think the prize should go the U.S. District Judge Dlott, who opened his opinion this way:
THE COURT WILL ADDRESS PLAINTIFF’S SEASONAL CONFUSION ERRONEOUSLY BELIEVING CHRISTMAS MERELY A RELIGIOUS INTRUSION.
WHATEVER THE REASON CONSTITUTIONAL OR OTHER CHRISTMAS IS NOT AN ACT OF BIG BROTHER!
CHRISTMAS IS ABOUT JOY AND GIVING AND SHARING IT IS ABOUT THE CHILD WITHIN U.S. IT IS MOSTLY ABOUT CARING!
ONE IS NEVER JAILED FOR NOT HAVING A TREE FOR NOT GOING TO CHURCH FOR NOT SPREADING GLEE!
THE COURT WILL UPHOLD SEEMINGLY CONTRADICTORY CAUSES
DECREEING “THE ESTABLISHMENT” AND “SANTA” BOTH WORTHWHILE “CLAUS(es)!”
WE ARE ALL BETTER FOR SANTA THE EASTER BUNNY TOO AND MAYBE THE GREAT PUMPKIN TO NAME JUST A FEW!
AN EXTRA DAY OFF IS HARDLY HIGH TREASON IT MAY BE SPENT AS YOU WISH REGARDLESS OF REASON.
THE COURT HAVING READ THE LESSONS OF “LYNCH” REFUSES TO PLAY THE ROLE OF THE GRINCH!
THERE IS ROOM IN THIS COUNTRY AND IN ALL OUR HEARTS TOO FOR DIFFERENT CONVICTIONS AND A DAY OFF TOO!
And thus dismissing a lawsuit that argued that making Christmas a federal holiday violated the Establishment Clause. Appealing to How the Grinch Stole Christmas was sheer brilliance.
A Happy and Healthy New Year from Ignirantia Legis!!