The News everywhere is agog with the meaning
of the 2000 OLC Memo at the U.S. Department of Justice, and its implications in the four criminal cases in which Donald J. Trump, former president, has been indicted under 91 total charges.
This memo: https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution
A headnote is a brief summary of the case, but has no force of law.
The headnote:
The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.
As you can read, in that brief summary, the authors are NOT saying that the focus, the crux of the matter, is the Sitting President him/herself — but the Executive Branch of the government which that Official heads, and that branch of gov’t’s “ability to perform its constitutionally assigned functions”.
The actual document in full is an online .pdf here:
https://www.justice.gov/d9/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf
It is 39 pages long. Not a fun read, but a necessary one, in this moment in time.
This is how it starts out:
In 1973, the Department concluded 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. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination. We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.
The Department’s consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel (“ OLC” ) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office.
See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Am enability of thePresident, Vice P resident and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (“OLC Memo”).
The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process.
[emphasis added for clarity]
At this point, I must refer to Amendment 25 to the U.S. Constitution, ratified into Law in 1967, 33 years before that Office of Legal Counsel Memorandum ever saw the light of day.
https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy
Section 3 of the 25th Amendment:
Section 3:
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
You will note that the Amendment does NOT restrict or enumerate any reason why a president would elect to voluntarily state that s/he is unable to discharge the powers and duties of his/her Office. Thus a president may invoke the 25th Amendment, Section 3 at their own discretion.
The Office of Vice President of the United States exists for one reason, and one reason alone: so that, should the sitting President die while in the Office, or become significantly ill, or have to undergo a surgical procedure which requires use of anesthesia, or any number of other reasons, become unable to “discharge the powers and duties of the his/her Office”; that there will be no question of whom takes up the powers and duties of the Office instantly, in the moment. So that there is no moment in time in which a U.S. President is not available to respond to a national security event, or any other issue. Even if that president is an Acting President, in the person of the Vice President, under the auspices of the 25th Amendment, Section 3.
https://www.presidency.ucsb.edu/statistics/data/list-vice-presidents-who-served-acting-president-under-the-25th-amendment
Presidents who have invoked Section 3 of the 25th Amendment, and their VP who became Acting President temporarily:
| November 19, 2021 |
Joseph R. Biden |
Kamala Harris |
10:10 AM |
11:35 AM |
Colonoscopy |
| July 21, 2007 |
George W. Bush |
Richard B. Cheney |
7:16 AM |
9:21 AM |
Colonoscopy |
| June 29, 2002 |
George W. Bush |
Richard B. Cheney |
7:09 AM |
9:24 AM |
Colonoscopy |
| July 13, 1985 |
Ronald Reagan |
George Bush |
11:28 AM |
7:22 PM |
Colon cancer surgery |
So 3 modern US Presidents have availed themselves of Section 3 of the 25th Amendment. Each time they did so for a medical reason (colonoscopy and colon cancer surgery).
My argument is that if a sitting president can vacate the Office voluntarily & temporarily while they deal with a medical issue, why can’t a sitting president vacate the Office in the same fashion to deal with a criminal prosecution of him/her?
Furthermore, under Article II, Section 3, the case of United States v Aaron Burr in 1807 provides some daylight on the issue.
https://constitution.congress.gov/browse/essay/artII-S3-4-6/ALDE_00013382/
In which Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial. Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not exempt from the general provisions of the constitution, like the Sixth Amendment, that provide for compulsory process for the defense.
U.S. Presidents are still just citizens, like you and me, even while they are President. So said the 4th Chief Justice of the United States Supreme Court, in 1807.
All of this talk of the immunity of Presidents from legal issues while they are in the Office appears to come from all of the ideas bounced around trying to shield Richard Milhous Nixon from the consequences of his actions, which eventually ended with his resignation from Office on August 9, 1974.
Repeated analysis of the idea can be found, and none of it cites anything other than the need for the Executive Branch to be able to “discharge the powers and duties” of the Office of the President.
That makes sense.
But jumping to “so no sitting President” can be embroiled in a criminal prosecution, when the obvious solution to the problem already exists as a part of the Constitution itself is some 11th Dimensional Chess sort of thinking.
If a sitting President commits crimes so flagrantly that the Department of Justice can acquire enough evidence to prosecute (and hopefully get a guilty verdict in a court of Law), the Constitution says that is what should happen — and the President can temporarily vacate the Office and the Vice President can become Acting President, until the president can resume their Office.
Just like Ronald Reagan (#40), George W Bush (#43) and Joseph R Biden Jr (#46) did, when necessary.
What I’d like to know is how can an innocuous need, such as a colonoscopy, be a reason to invoke this part of the Constitution, and a much more serious need, such as a president needing to answer to indictments in criminal court, not be a reason to invoke 25thA, Section 3; resulting in a extra-judicial Memo from the Office of Legal Counsel to the Office of the Department of Justice which says that sitting presidents are a special case and immune to such charges.
In that Memo they never once opine on the ability of a sitting president to voluntarily step aside while the VP steps up as Acting President. They focus strictly on the Executive Branch needing the president elected in the Office to ensure the powers and duties of the entire Branch are covered, when a more obvious, and already part of US Law, answer already exists — and pre-exists that Memo by 33 years.
Simply being, or having been, president of the United States and being someone who appears to have committed (a) criminal offense(s), should never be enough to escape the long arm of the Law.
Not even temporarily.
Or we might as well start calling them King and not President.
