H. Lowell Brown - Prosecution of the President of the United States: The Constitution, Executive Power, and the Rule of Law

H. Lowell Brown

Prosecution of the President of the United States

The Constitution, Executive Power, and the Rule of Law

1st ed. 2022

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For Ella, as always

The presidency of Donald J. Trump posed many challenges to the norms, values, and institutions of the American democracy that have evolved over the centuries since the founding. Among them, President Trumps personal conduct both prior to and following his becoming President has once more raised the question whether an incumbent President is subject to indictment and prosecution in a federal or state court independently of the process of congressional impeachment and removal specified in the Constitution. The issue is a weighty one whose resolution is not free from doubt. Indeed, the record of the Federal Constitutional Convention and the ratification debates are inconclusive whether the Framers considered the President to be immune from criminal prosecution while in office, and although there is precedent in the courts that the President is not immune, there is no consensus on the issue among scholars and commentators.

Nevertheless, the report of Special Counsel Robert Mueller as well as reports in the press and allegations in litigation strongly suggest that President Trump may have engaged in acts of possible obstruction of justice These possibly criminal acts fall into three broad categories: (1) acts committed by Trump while he has been President; (2) acts committed in connection with Trumps campaign for the presidency; and (3) acts committed by Trump prior to becoming a candidate for the presidency.

At the conclusion of the Mueller investigation, Mr. Mueller stated with respect to whether President Trump had obstructed justice that the evidence of President Trumps actions and intent presented difficult issues that would need to be resolved, had he recommended prosecution. Nevertheless, Mueller went on to say that, If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state, but based on the facts and the applicable legal standards, Mueller said, we are unable to reach that judgment.

Mueller explained that no decision had been made whether to seek indictment because The Office of Legal Counsel has issued an opinion finding 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 in violation of the constitutional separation of powers. But without conceding that his investigation was subject to that policy, Mueller stated that this Office accepted OLCs legal conclusions for the purpose of exercising prosecutorial discretion.

Mueller was referring to a memorandum issued by the Department of Justice Office of Legal Counsel in 2000 that confirmed an earlier memorandum in 1973 concluding that as a matter of constitutional law, a sitting President is immune from prosecution. The basis of those conclusions by the OLC has been a subject of controversy, but in any event, in light of the comments and actions of Attorney General William Barr at the time the Mueller Report was completed, it is unlikely that the filing of the indictment would have been authorized.