Former President Donald J. Trump's argument that former presidents should enjoy “complete immunity” from prosecution for any crimes committed while in office significantly overrides the temporary immunity that sitting presidents already have. It will be expanded to.
There is nothing in the Constitution or federal law that protects a president from prosecution while in office, and no court has ever ruled that way. But political appointees in the Justice Department's Office of Legal Counsel, whose interpretations are binding on the executive branch, declared that the Constitution implicitly establishes such immunity.
This discussion boils down to the reality of governance. The stigma of being indicted and the burden of a trial would unduly impede a president's ability to carry out his duties, said Robert G. Dixon Jr., then head of the Justice Department's Office of Legal Affairs. In a September 1973 memo, the lawyer wrote: This would prevent the executive branch from “exercising its constitutional functions” in a manner “not justified by overriding necessity,” he added.
Mr. Dixon, an appointee of President Richard M. Nixon, wrote the memo against the backdrop of the Watergate scandal when Mr. Nixon faced a criminal investigation by special counsel Archibald Cox. The following month, Robert H. Bork, the Nixon administration's attorney general, similarly asserted in a court brief the “inference” that the Constitution provides immunity for sitting presidents from prosecution and trial.
(In the same month, Mr. Nixon fired Mr. Cox over the so-called Saturday Night Massacre. Mr. Nixon's attorney general and deputy attorney general resigned without carrying out his order to oust prosecutors. Mr. Nixon then turned to Mr. Cox. Amid political opposition, Mr. Nixon was forced to approve Leon Jaworski, the department's No. 3 official, who expressed interest in reopening the investigation.
The issue resurfaced a generation later when President Bill Clinton faced an investigation by independent counsel Kenneth Starr into the Whitewater land deal, which turned into an investigation into his relationship with White House intern Monica Lewinsky. Ta. Randolph D. Moss, whom Mr. Clinton appointed to head the Office of General Counsel, reviewed the Justice Department's 1973 opinion and reaffirmed its conclusions.
Legal scholars and prosecutors investigating the president have challenged the validity of that constitutional theory. In 1974, Mr. Jaworski received a memo from his staff that effectively allowed him to indict Mr. Nixon while he was in office, a claim he later made in court briefs.
And Ronald Rotunda, a prominent conservative constitutional law scholar hired by Mr. Starr as a consultant to his legal team, rejected the idea that presidents are immune from prosecution while in office in a 56-page memo from 1998. Mr. Starr later said he had concluded that Mr. Clinton could be prosecuted.
“It is appropriate, constitutional and lawful for a federal grand jury to indict a sitting president for serious criminal acts that are not part of his official duties and are contrary to his official duties,” Rotunda said. “No one is above the law in this country, not even President Clinton.”
Mr. Starr commissioned the Rotunda memo when drafting the indictment against Mr. Clinton, determining that Mr. Starr could indict the president while he was still in office. But in the end, Mr. Jaworski and Mr. Starr decided to proceed with impeachment proceedings in Congress and did not seek to prosecute Mr. Nixon and Mr. Clinton while they were still in office.
This issue may never be conclusively tested in court. In 1999, Congress allowed the law that created independent prosecutors like Mr. Starr (prosecutors who don't report to the attorney general) to lapse, and the Justice Department created a special semi-autonomous prosecutor to investigate potential high-level cases. issued regulations authorizing the appointment of prosecutors; Levels of corruption in the executive branch.
However, the special counsel is bound by the policies and practices of the Department of Justice. This includes a declaration by the Office of the General Counsel that a sitting president is temporarily immune from criminal prosecution or trial.
