Analysis of 2000 OLC Memorandum on Presidential Indictability and Its Implications

can’t be indicted, he can’t be questioned. Both positions are based on category mistake. No one has ever seriously suggested that a president can never be indicted. The only debate is whether any indictment of a president must be postponed until he is no longer in office. Since any president can indisputably be indicted when no longer in office, there 1s no permanent immunity that would obviate questioning of a president. 6. The 2000 OLC Memorandum. This opinion of the Office of Legal Counsel, signed by Assistant Attorney General Randolph Moss, is a thorough and thoughtful analysis of whether a president can be indicted and prosecuted while serving in office. It appears to have originally been drafted during the time of the Starr investigation of President Bill Clinton. The case against putting a president on trial is fully convincing to me. What is not so clear, however, is whether there is sound basis for withholding an indictment of a president even if any trial proceedings must await the end of his term. Like the Dixon memo, the 2000 opinion set out several obstacles to trying a president. None of those reasons, save one, applies to naming a president in an indictment. The 2000 opinion gives so little thought to the possibility of indicting-and-postponing that it gives only one reason why such a course should be precluded: the idea that including the president in an indictment would cast a “cloud” over the presidency. The notion that reputational harm alone should preclude a normal part of the system of justice seems incompatible with the Supreme Court’s decision in Clinton v. Jones, in which the court set such a high bar for any presidential immunity from the normal process of litigation that not a single justice found that actually undergoing a civil trial was precluded. It is hard to square mere reputational harm as a basis for precluding indictment when the government seems to have established that a president can be listed as an unindicted co- conspirator. The reputational difference between being named as an unindicted co- conspirator in a criminal indictment and being listed as one of those indicted seems relatively small. The essential difference: naming one as indicted prevents the statute of limitations from expiring. Why, for a small reputational difference, would one choose to make being in the White House a basis for permanently precluding (by operation of the statute of limitations) an otherwise warranted criminal prosecution? One aspect of the 2000 memo is worth noting. It appears to have been drafted with the case against President Clinton in mind. That was essentially a one-defendant matter. Thus, the opinion does not grapple with the significant obstacles to trying a multi-defendant criminal conspiracy while excluding from the charging document any reference to one of the conspirators—and perhaps a key conspirator. For an extended argument that the terms of Robert Mueller’s appointment and practice of the Office of Legal Counsel do not require him to conform to the 2000 OLC position opinion rejecting the option of indicting and postponing, see Andrew Crespo’s analysis. In addition to Crespo’s analysis, I would add that the 2000 memo gives only scant attention to HOUSE_OVERSIGHT_030206