If, as the execrable William Barr contends, a sitting president may not be indicted, then the idea that the United States is a nation of laws, with no one above the law, is demonstrably false.
Presently, two Department of Justice memoranda are the basis for the DoJ guideline that employees of the Department of Justice may not indict a sitting president. It is my understanding those memoranda in both cases were created as stop gap measures to protect presidents under attack.
The first memo was drafted during the tenure of John Mitchell, Richard Nixon’s Attorney General and a long-time member of Nixon brain trust. General Mitchell wound up in federal prison for his efforts in office.
The second memo was drafted when Bill Clinton was under attack by Ken Starr’s Whitewater investigation.
Neither memo is either exhaustive or particularly well founded. Indeed, the Supreme Court held in Clinton v. Jones, 520 U.S. 681 (1997), that a sitting President of the United States has no immunity from civil law litigation, in federal court, against him or her, for acts done before taking office and unrelated to the office. In particular, there is no temporary immunity, so it is not required to delay all federal cases until the President leaves office. If a sitting president should not be immune from the distraction of a civil action, why in the world would he or she be exempt from legal process in a criminal matter, when the public interest is so much greater?
Perhaps the only positive product of Starr’s investigation was the legal opinion he solicited from Ron Rotunda, a law professor at the University of Illinois Law School. In the memo, Rotunda referenced the Clinton v. Jones decision, and held that a sitting president could be indicted, tried and convicted while in office, but that he would not be required to serve his/her sentence until after leaving office. Removal, according to Rotunda, could only be accomplished by impeachment.
Based upon this memorandum, which appears to be both thorough and exhaustive, I would call upon all Democratic candidates for the presidency to make these promises to the American people:
1. If elected, any Democratic candidate would write an Executive Order stating a sitting president may be indicted for criminal behavior. This Order would be operative until such time as completion of No. 2, below.
2. Any person nominated to be Attorney General would agree as a condition of nomination and confirmation to conduct a thorough and complete legal analysis to determine once and for all whether the rule of law applies to all Americans.