It’s Time to Stop Criminal Investigations of Sitting Presidents

The Bottom Line

• The DOJ Office of Legal Counsel has repeatedly made it clear presidents can’t be indicted while they are in office.
• Special counsel don’t have clear instructions about what they should do after they finish their investigations of sitting presidents.
• Allowing criminal investigations of sitting presidents under current OLC guidance can create a constitutional crisis.

The system of subjecting sitting presidents to criminal investigations is broken. It is fraught with confusion and dangerous ambiguity; its procedures often result in patent unfairness to the target; and it runs the substantial risk of creating a constitutional crisis. We should get rid of it.

The appointment of federal prosecutors to conduct criminal investigations of the sitting president has been a centerpiece of our politics for the last 50 years. It has been such a feature of our system that every chief executive since President Gerald Ford has been the focus of at least one criminal investigation while in office, with the exception of President Barack Obama. And none of these investigations have resulted in prosecutors bringing any charges.

The scope of these investigations has recently been limited by the Supreme Court’s decision in Trump v. US, in which the court decided sitting presidents have immunity from prosecution for their “official acts.” But the decision didn’t sound the death knell for these investigations: Nearly half of the various criminal investigations of sitting presidents have been for acts that occurred before their inauguration, including those conducted by the two most recent special counsels, Robert Mueller for Donald Trump and Robert Hur for Joe Biden.

Despite the Supreme Court’s recent intervention, there is no indication these investigations are going to cease.

Though these criminal investigations have been the subject of intense scrutiny, debate, and analysis, the central aspect of this practice is still shrouded in confusion and dangerous ambiguity: Exactly what are prosecutors supposed to do and say when they conclude their work?

Assuming, as nearly all presidential prosecutors since Ken Starr have, that based on the opinions issued by the Department of Justice’s Office of Legal Counsel a sitting president can’t be indicted, what exactly then is the point of a criminal investigation of a president?

Despite this clear restriction, prosecutors continue to carry out criminal investigations of presidents they know they can’t bring charges against. It isn’t clear what prosecutors are legally authorized to do at the conclusion of their work. The DOJ regulations require prosecutors to deliver a report “explaining the prosecution or declination decisions” they reached, but it isn’t clear what that means in light of the OLC prohibition on indictment.

Stunningly, neither in the instructions these prosecutors have received from the appointing attorneys general nor in the applicable DOJ regulations is there any explanation as to how this “report” requirement should be fulfilled, nor what actions, if any, are authorized. As a consequence, the published reports have taken markedly different approaches, some directly contradictory to others or inconsistent with the analysis provided by OLC.

The OLC Opinions

OLC issued two opinions on this subject, the first on Sept. 24, 1973, and the second on Oct. 16, 2000. Both opinions concluded an indictment of a sitting president would be constitutionally impermissible. OLC characterized an indictment and subsequent trial as a “physical interference” with the ability of the president to fulfill his duties.

Being a defendant in a criminal proceeding would be so demanding that it would interfere with the performance of his unique official duties in a way that “might constitute an incapacitation.” To “defend a criminal trial and to attend court in connection with it” would interfere with the president’s duties in such a fashion as to hamper improperly his performance of his duties.

But in an aspect of the opinions that has drawn much less attention, OLC went further and analyzed the effect of “non-physical interference” on a president’s ability to fulfill his constitutional duties. “Non-physical interference” would occur if a president was indicted but any trial was postponed until he left office. And leaving “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.”

The political damage of a deferred indictment was seen by the OLC as a constitutionally impermissible interference that “boggles the imagination.”

OLC reiterated its position, in the 2000 opinion, and added that a sealed indictment would also be unacceptable because of the difficulty in maintaining its secrecy given the indictment’s target, writing that “permitting a prosecutor and grand jury to issue even a sealed indictment would allow them to take an unacceptable gamble with fundamental constitutional values.”

OLC concluded that Congress, through the impeachment power, was “the only appropriate way to deal with a President while in office.” A prosecutor shouldn’t be allowed to exercise the power to interfere with the ability of a “popularly elected president to carry out his constitutional functions,” OLC found.

An indictment “exposes the President to an official pronouncement that there is probable cause to believe he committed a criminal act.” Putting a president to trial would “confer upon a jury of twelve the power, in effect, to overturn [a] national election” by ending a presidency with a guilty verdict.

With these OLC opinions in mind, it isn’t clear what steps are open to an appointed prosecutor who is assigned to conduct a criminal investigation of a sitting president. Clearly OLC believes that any indictment returned during a president’s tenure, regardless of the trial timing, would be an unconstitutional intrusion. But beyond that prohibition, prosecutors are left in the dark as to what is permissible.

The logic of the OLC analysis seems to lead to the conclusion that any criminal accusation against a sitting president would amount to such a non-physical interference with his duties as to be constitutionally prohibited. The DOJ regulations are silent whether there is a difference between an indictment with a deferred trial and a finding that the president committed a chargeable federal crime. There is also no explanation as to what the parameters are on the prosecutor’s requirement to write a report detailing his “prosecution or declination” decisions.

Special Counsel Conundrum

The confusion inherent in this situation is evident in the reports filed by the special counsels chosen to investigate Trump and Biden while they were in office.

Neither Mueller nor Hur received any clarifying instructions. They were simply instructed and authorized to conduct investigations, prosecute federal crimes, and file reports explaining their prosecution and declination decisions. They were required to comply with the “rules, regulations, procedures, practices and policies of the Department of Justice,” a requirement that includes abiding by the OLC opinions.

Mueller, in Volume II of his report, which dealt essentially with activities while Trump was in office, explicitly recognized that he was bound by the OLC opinions that prohibited the return of an indictment. However, he wrote that he considered whether to evaluate the president’s conduct in a way that “could potentially result in a judgment that the President committed crimes.”

He decided not to do so, first citing “fairness” as the principal reason because without a trial it would deny the target the “adversarial opportunity for public name-clearing before an impartial adjudicator.”

Whether Mueller believed the OLC opinions independently prohibited him from publicly reaching the conclusion that the president had committed crimes is unclear: He gave a nod to OLC by stating that his concerns about fairness “would be heightened in the case of a sitting President” because of the “stigma and opprobrium” associated with the accusation could imperil the president’s ability to govern.

But Mueller’s concern for “fairness” apparently went only so far. Despite refusing to come to a charging decision, Mueller made clear that his team wasn’t clearing the president of committing obstruction, saying “we are unable to reach that judgment.” How this glancing accusation was “fair” or how it didn’t itself constitute “stigma and opprobrium” that would damage the president was left unexplained.

Hur, working as did Mueller without any clarifying instructions, took what seems to be a different approach. Hur decided he could make a charge determination about Biden’s conduct and concluded that “no criminal charges are warranted in this matter.”

But Hur’s decision raises a thorny question for future special prosecutors: If it’s permissible for a prosecutor to conclude that “no criminal charges are warranted,” doesn’t it mean the absence of that finding suggests charges were warranted?

Hur also seemed to contradict one of the chief concerns of OLC about placing “the practical power to interfere with the ability of a popularly elected President to carry out his constitutional functions” in the hands of one prosecutor. Though he concluded no criminal charges were warranted, he included a characterization of Biden as an “elderly man with a poor memory” who didn’t possess the “mental state” to act willfully as reasons for his declination.

Certainly his comments weren’t as damaging as a finding that charges were warranted, but to put into his report the central talking points of Biden’s political opponents seemed to highlight the potential for unfairness that moved Mueller.

The job of criminally investigating sitting presidents is one of the most sensitive and potentially damaging tasks in our system of government. The lack of clarity as to how that task should be done is dangerous. It allows individual prosecutors to make decisions essentially unchecked that could have profound effects on the ability of sitting presidents to fulfill their responsibilities.

We should do away with this entire effort and accept the viewpoint from OLC that the “only appropriate way to deal with a President in office is through the impeachment process.”

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Richard Sauber served as special counsel to President Joe Biden and is currently in private practice in Washington, D.C.

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