A Memorandum of Misunderstanding

By Tom Coleman
Take Care, 7/22/19

As America anticipates Special Counsel Robert Mueller’s appearance before several House committees on July 24th, it is important to remember the limitations placed on him as he investigated Russia’s interference in the 2016 election. The principal limitation was a Department of Justice Office of Legal Counsel’s memorandum prohibiting a sitting president from being criminally charged. But the memo contains much more than this limitation. It also provides a roadmap to Congress for impeachment. An important part of Mueller’s testimony will undoubtedly address the memo’s impact on his investigation and what next steps Congress should now take.

Mueller’s final report strongly implied that, but for the OLC opinion prohibiting an indictment, there was sufficient evidence to bring criminal charges against President Trump for repeatedly committing the crime of obstruction of justice. Over 1,000 former U.S. Attorneys have expressed their opinion in a letter they also believe there would be sufficient evidence to charge and convict Trump for obstruction of justice if he were not president.

Unfortunately, OLC’s memorandum has been largely misunderstood. While media attention has been focused on the document’s limitation on indicting and prosecuting a sitting president, a closer review of the memorandum reads more like a set of instructions directing the reader to the process of congressional impeachment. In sum, OLC points out the proper forum to address such criminal behavior. It is Congress whose popularly-elected members have been given the constitutional power of impeachment. This assures that a president is not above the law.

The OLC memo, initially written in 1973, was revised in October 2000. Although it concludes the original 1973 DOJ memorandum “still represents the best interpretation of the Constitution”—namely, that a sitting president cannot be charged or convicted of a crime while in office—many in the media have overlooked its 68 references to impeachment. The memo does not pull any punches in this regard. Rather it is more like a flashing neon sign that screams: IMPEACHMENT NOT INDIGHTMENT!

Since the issuance of Mueller’s report and his subsequent clarification of it in his May 29th press conference, we know why Mueller did not bring criminal charges against the president. He said he was bound by the DOJ policy spelled out in the memorandum: “charging a president with a crime was not an option we could consider.”

At the close of his press conference Mueller called our attention to this fact: “The [Justice] Department policy says the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”

Here we see the Special Counsel and the OLC memorandum stating the same thing but with different words. Those confused about Mueller’s view of the constitutional impeachment remedy are thus missing his point. To be sure, the OLC memorandum refers to impeachment 68 times, whereas Mueller did not use the word at all in his press conference remarks. But there is no doubt he was referring to the constitutional “requirement” of the process of congressional impeachment.

Unfortunately, this point appears lost on Democratic leaders in the House of Representatives. Since the Mueller Report has been issued, the House Democratic majority has been consumed with debates over whether or not to commence impeachment hearings. The Democratic caucus is split and the leadership is under pressure to move forward with impeachment. In making this decision, they need to recognize the DOJ memo is much more than a limitation on the prosecution of a president. It is a guide to proceeding with the only constitutional remedy available to hold a president accountable for his wrongdoing: impeachment.

Here is what the October 2000 memo cites as dispositive language contained in the original 1973 OLC Memorandum Opinion:

“…the OLC memorandum…recognize[s] that he (the president) is ultimately accountable for his misconduct that occurs before, during, and after his service to the country.”

And

“under our constitutional plan as outlined in Article I, sec. 3, only the Congress by the formal process of impeachment, and not a court by any process should be accorded the power to interrupt the Presidency or oust an incumbent.”

And

“…the impeachment process is better suited to the task than is a criminal proceeding because appeals from a criminal trial could ‘drag on for months.’”

By Contrast

“[t]he whole country is represented at the [impeachment] trial, there is no appeal from the verdict, and removal opens the way for placing the political system on a new and more healthy foundation.”

After listing and reviewing arguments for and against allowing a sitting president to be criminally charged while in office, the October 2000 memorandum concludes with these final words:

“Balancing these competing concerns, we believe the better view is the one advanced by the Department in 1973: a sitting president is immune from indictment as well as from further criminal process. Where the President is concerned only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment.” (emphasis added)

Some people have wrongly concluded that Special Counsel Mueller “punted” on the subject of criminal obstruction. That is not the case. A more accurate football analogy would be that Mueller threw a lateral pass to Congress. In his upcoming congressional appearance, he will assure the pass is completed. It will then be up to the co-equal legislative branch of government to catch the ball and run with it. The future of our democracy might very well be at stake. Let us pray Congress will not fumble the ball.

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Tom Coleman is a former Republican Member of Congress from Missouri and an attorney. He has served as an adjunct professor at New York University’s Robert F. Wagner Graduate School of Public Service and at American University.

Image Source: CBS News