Understand that there is no case law, in other words no legal precedent, that has ever stated that a sitting President cannot be charged, or indicted for committing a crime.  That is fact.

 There are only four government memos, some as old as twenty-five year, that attempt to address this issue.  Government memos, I repeat, written by a number of lawyers.  These are opinions, not settled case law.  Not precedent (I’m repeating this for emphasis.)  In other words, they are someone’s idea, not a ruling by a court such as a lower court or even the Supreme Court.

 The initial memo, from 1973, was issued by Nixon’s Office of Legal Counsel.  It could find no answer in the Constitution.  The Constitution addressed only impeachment, not prosecution afterwards.  The Justice Department lawyers then decided that criminal proceedings against a President should not go beyond the point at which they could remove a sitting President because that would be a “short cut” to full impeachment.

 A memo from Robert Bork shortly thereafter takes it for granted that this Justice Department opinion is valid and decides that they do not apply to the Vice President.  Aaron Burr, indeed, served the last year of his term under indictment by New York and New Jersey.  Bork, however, wrote: “a President has complete power over the execution of the laws,” making prosecution of himself by himself absurd.”

 After that, twenty-seven years later, in United States versus Nixon, a court required Richard Nixon to turn over his tapes in a criminal case against other defendants.  In Clinton versus Jones it was ruled that Bill Clinton could not stay a sexual harassment suit against him until leaving office.  But during the Clinton impeachment the Office of Legal Counsel concluded that only elected officials of Congress could possess the extraordinary power of deciding to initiate a proceeding that could remove a sitting President.

Ronald W. Rotunda, however, a distinguished constitutional scholar, advised Special Counsel Kenneth Starr that Bill Clinton could be indicated because “The U.S. Supreme Court has repeatedly reaffirmed the statement that no one is above the law.”  In other words, a sitting President could be criminally investigated and charged.

The long and the short of it is that no one can tell with certainty whether a sitting President can face indictment while in office until some prosecutor goes to a grand jury and asks for a “true bill” of indictment.

And that is the point of this article.  Why in the hell haven’t the Democrats done this?  (If they lost, what difference would it make?) Instead, they have meekly shied away from such a confrontation which, at the very least, has resulted in the acceptance of the status quo.

I am a staunch Democrat, myself.  Yet I despair because the Democrats are our only hope.  Their view is to bet it all on one roll of the dice, win or lose, flipping the Senate, keeping the House and ousting Trump, all in one fell swoop.  (A very big “if”, considering the barriers the Republicans erect incessantly such as stopping the mails, gerrymandering, voter discrimination, social media campaigns designed to besmirch Democratic candidates.)

In short, the Democrats seem to be the Party of being afraid to really challenge the Republicans with hard-hitting, action-oriented steps such as court cases, relentless social media campaigns, withholding of funding for government groups that commit illegal acts, and other, more creative measures.

Maybe this message will get through and change things.  Otherwise it is just, as I said, one roll of the dice that will decide if we remain a Democracy.

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  1. “Why in the hell haven’t the Democrats done this? (If they lost, what difference would it make?)”

    Well, if they lost, here’s the “difference” that it would make: You’d now have that precedent that FORMALLY decided “a president can’t be indicted while in office.” Do you REALLY want that? Especially when you’re so damned blasé about “what difference would it make?”

    And, I’ll remind you that “gerrymandering” does NOT affect a US Senate race since ALL senators are elected by ALL the citizens of their states. It’s not like there’s some sort of dividing line from which citizens of one part of a state vote for a senator and then the remaining citizens of the other part of the state vote for the other senator. So all the Republican “gerrymandering” in the world does absolutely nothing when it comes to electing the Senate.

    But, here’s an idea for you: Run for office yourself. I am SO tired of whiny self-described Democrats who don’t seem to have the first notion of how to run a political campaign or how the system works but they can’t stop their “morning-after quarterbacking” because *they* know best. Of course, many of these folks are also the ones who supported Bernie Sanders’ runs for the Democratic nomination in 2016 and 2020 without demanding he actually JOIN the Party he so badly wanted to represent. I’m not about to second-guess our party leaders who have access to a lot more information about things than most of the rest of us (no matter how well-read you may be on any particular topic). I recall all the whining and pissy bitching about how Nancy Pelosi wasn’t quick enough to bring impeachment proceedings for a vote. For a couple of months, this went on. Good “Democrats” were just “why won’t she impeach Trump” and other crap without realizing that doing it too soon would do absolutely nothing. Then too, a lot of these people didn’t seem to understand that the Senate actually sets the rules for the “trial” and they don’t have to give the time of day to any requests from the House leadership. Nancy understood this. She’d been around when Clinton faced impeachment and she knew the Democrats’ case could’ve been 1000% solid with absolutely zero errors and the Senate’s GOP wasn’t about to play along. But, if she hadn’t finally gotten as good a case as she could get and formally called for impeachment and then got the House vote, all the “Democrats” (who knew better than Pelosi, with all their years of quarterbacking and complaining about Trump) would’ve howled in outrage, demanding her head and Trump and the GOP would’ve had one less solid enemy.

    Democrats are horrible when it comes to turning on their own. The GOP have shown they’re willing to tolerate vile, horrid behavior from a President (as long as that President is a Republican) and they’re willing to tolerate vile, horrid behavior from ANY GOPer and they laugh with glee and delight when a Democrat, whose “bad behavior” doesn’t come remotely close, gets punished by his or her own team in the name of “fairness.” Sure, I believe in “fairness,” but “fairness” becomes meaningless when only one side effectively executes its own while the other side gives its bad people little more than a finger-wagging.

    • Joseph, I believe Lawrence’s piece is positing an opinion. And I get VERY frustrated too with how the Democrats don’t seem to expore options available to them. But like anything on which any of us exress an opinion, we may not know all the facts. I do agree with you that sometimes Democrats try to “do the right thing,” and it turns out not being so “right” after all. Example: shaming our good Senator Al Franken into resigning when the sexual harassment charges against him were so phony they reeked of a set up. I’d still rather go with a political party that at least tries to find their True North rather than a party that literally says north is south because their Dear Leader says so.

    • Yes. Challenging that would have been a lost cause no matter which of Trump*’s lackeys was AG at the time of the challenge. That challenge needs to be done suring a rational administration. And done with great care, I might add.

      • You too have made up your mind beforehand and that is what I am writing about. The Germans will invade us and win so why fight WWII? We’ll wait for a better time to fight them off. If FDR had that attitude as Chamberlain did we’d be speaking German now and under Third Reich.

    • If you look at it objectively everyone is acting just as if the President is immune from being investigated criminally by Congress as we speak. No one has questioned the DOJ ruling except a few well-known law professors. So what is, is. That acts as defacto settled law. In your second paragraph you have already bought into what I have been saying all along, that is defeatist to even try to challenge the opinion written by the DOJ that Barr clings to. That is a frame of mind that keeps it all in place. Never challenge, never (possibly) succeed (or at least bring it out in the open and questioned for all to see). The truth is that the “excuse” for the opinion that the President cannot be charged or indicted because it would “disturb” his ability to carry on his duties is fallacious. Trump plays golf and that isn’t considered shirking his duties; if he got sick, Pence would take over; Trump confers with lawyers all the time about his various aggressive law suits and that isn’t shirking his duties. So your argument doesn’t hold. As to “I’m not about to second-guess our party leaders who have access to a lot more information about things than most of the rest of us (no matter how well-read you may be on any particular topic).” If we cannot “second guess” our Party leaders, then you actually enjoy autocracy because that is the definition of it. Come to think of it, Joseph, you sound too much like a (Republican or Russian) troll who wants to sow discord rather than urge the Democrats to do more. And when it comes to Pelosi, though she is a great fund raiser and a magnificent Whip of a Speaker who keeps it all together, she (and too many Democrats) do not understand the value of continued social media programs to challenge the status quo and changed peoples’ minds; she has no idea about how to use such tools; while the Republicans glory in it and used it so successfully against Hillary.

  2. The original memo was drafted for a specific purpose, and it’s important to note that at the time most Republicans (and not merely a few Democrats) didn’t believe Nixon was guilty of any legal misdeeds, nor wrongdoing that would rise to the level of putting the country through impeachment proceedings. However, Agnew was in deep legal shit for misdeeds the state of MD and they needed to figure out how to force him to resign. The concept developed that if there was some quasi official legal “ruling” that stated ONLY a President could be shielded from criminal process and specifically NOT the Vice President that Agnew could be persuaded to go ahead and resign and face the music. It’s never been proven but Nixon probably at least hinted to Agnew that if he fell on his sword quickly enough that the scandal would pass that a pardon, or at least commutation would take place once things settled down.

    So, I can’t remember his name off the top of my head but some dude was tasked with writing up a “legal opinion” to justify this whole concept of President’s being immune from indictment or prosecution until out of Office. Decades later I recall even the original author of the thing admitting it was pretty bogus and only meant to force Agnew’s resignation – certainly not as something that would take on the outsized influence it attained.

    However, as I said back at the time the original opinion was drafted few people outside Nixon’s circle knew just how deeply he was involved in Watergate or just how widespread his abuse of power and criminal misconduct actually was. As for afterwards, especially as some reforms were made (alas, not codified in law or even when some were not nearly as forcefully as they should have been) everyone believe that the system was solid, and that there would never again be someone like Nixon who made it to the Oval Office.

    Well, THAT was sure as hell wrong. We got Reagan and Iran-Contra which should have gotten Reagan himself impeached and removed and maybe even prosecuted. High level people DID actually get convicted but the biggest ones (Poindexter and North) got their convictions overturned on the legal technicality that ALL the evidence against them was tainted due to testimony (remember Ollie North?) before Congress under a grant of immunity.

    Then we have the lies told by Bush 43’s crew to sell the second war in the Gulf, more of which should have been prosecuted than actually were.

    Clinton of course got himself into legal trouble for trying to be his own lawyer and getting too “cute” under oath but he was only trying to cover up a half-assed blowjob and what was little more than the kind of backseat antics that teens called “parking” back when I was one all those many decades ago. Unlike Nixon, Reagan and Bush 43 who happened to have had the most (in order) convictions of their people Clinton’s legal problems were purely personal and didn’t involve national security! And yes, misuse of the CIA and the FBI by Nixon was damaging to our national security.

    The point though is that back when this whole “A sitting President can’t be indicted” crap became a matter of “law” most people thought Nixon was at worst sometimes overzealous to the point of some sleazy political (only) shenanigans and not involved in anything actually criminal. So DOJ came up with a means to run a (successful) bluff on Agnew to get him to resign and give Nixon some breathing room.

    Alas, the law of unintended consequences kicked in with a vengeance and here we are.

  3. I agree that no one is above the law and that a sitting president is simply a powerful citizen, but still answerable for his/her crimes at the time they are determined to be crimes. Think about it. If a sitting president commits a crime for which he can be prosecuted but is not brought up on charges until he is out of office, what if the statute of limitations has expired in that particular offense? This is the kind of catch-22 that should not be allowed to occur. However . . . I think that given the petty nature of the political game, politicians know that if the aspire to office knowing that they can be easily prosecuted while in office, this situation will facilitate an endless vendetta against rival pols and parties.
    What bothers me more is the fact that, as in the case of Obama and the whole prior regime, too often the new guy says, “Let’s move on ahead and not have recriminations over the past. In this way politicians perpetuate a very bad situation by not resolving it once and for all.
    We have seen this play out in the senate the past few years over the 60 member rule and the filibuster. They were instituted when one part had what they saw as an endless majority, and then they lost and the other party used these tools as weapons of vengeance . . . that is until again power shifts and the vendetta begins all over again. When the majority of political leaders are like Peter Pan, the game stays the same, always tit-for-tat. And pols who like their cushy “jobs” don’t want to rock the boat. For me, the better plan is to memorialize term limits. That would have gotten rid of the Moscow slimy toad McConnell long ago (and others like him).

    • The President is limited to two terms. Not a solution with Trump wanting to be another Putin for life. In the Senate and House and the Supreme Court I agree. See my response to Joseph above for more.


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