Why Does the Justice Department Say a Sitting President Can’t Be Indicted? The Original Rationale’s Kinda Mind-Blowing…

I missed this story the first time around in 2019, but I think it’s worth covering now as Donald Trump fades into the sunset (a little wishful thinking on my part) and we review how we got to where we are—and where we may need to change our procedures. This need for reexamination covers many areas; the Justice Department’s among them.

When Robert Mueller released his report on Trump’s alleged wrongdoing in 2019, he did not call for the President’s indictment. We knew he wouldn’t do so at the outset because of the longstanding Department of Justice precedent that a sitting President cannot be indicted.

In his report, Mueller said it would not be fair to find that the President had obstructed justice because—based on that established policy—he didn’t believe he had the option to indict President Trump.

The fact that the finally-on-his-way-out-the-door Attorney General Bill Barr deliberately misconstrued the report and spun it publicly to appear that Mueller had suggested Trump had not committed obstruction of justice was Barr’s first bit of obeisance to the President who has recently turned against him.

We can only wonder how events might have evolved if Mueller had stated outright that the President was guilty of obstruction of justice. He came very close in Part II of his report, which has been called a roadmap to prosecuting Donald Trump.

What are the origins of that Justice Department policy? 

It appears that Trump might owe a debt of gratitude to Spiro Agnew. Spiro who? Spiro Agnew, Richard Nixon’s Vice President at the time of the Watergate scandal. But this policy is unrelated to Watergate—or even to the President directly. That’s what makes it so very odd.

This is yet another story that includes the wonderful folks maligned as the Deep State, who were protecting our country’s integrity. 

In 1973, a team of young federal prosecutors in Maryland discovered that Agnew had been involved in a decades-long bribery and extortion scheme. It began when he was Baltimore County Executive and continued while he served as Governor of Maryland. 

It was apparently a habit he couldn’t or didn’t care to break: as Vice President, he’d leave his White House office so that the appropriate parties could enter and drop their little parcels for him. Once they were gone, he’d return.

When word of the compelling case against Agnew reached then-Attorney General Elliot Richardson, the AG considered this nightmare scenario: Nixon would likely be removed from office because of Watergate, and Agnew the extortionist–a 40-count criminal indictment awaiting him–would ascend to the Presidency. 

Quite the dilemma.

Richardson sought guidance in the Fall of 1973 from Robert Dixon, who headed the Office of Legal Counsel and had previously been a law professor. Dixon said he didn’t know what to recommend, and he and his office went through 200 years of legal opinions in search of an answer. No clear guidance was found. The Constitution is silent on the matter.

Finally, Dixon asked JT Smith, Richardson’s Executive Assistant, if he knew what answer Richardson was looking for. Smith said Richardson hoped Agnew could be indicted. 

To distinguish between the President’s fate and his VP’s, the conclusion was a compromise: the President’s role was too important to permit him to face an indictment, but the VP’s was not.

Agnew pleaded no contest to one count of felony tax evasion and resigned from office. Nixon resigned one year later.

The question of a President’s immunity from indictment was revisited during Bill Clinton’s impeachment trial. It has since been held as policy that a President should not be distracted by facing an indictment while in office–even though its applicability to the Presidency occurred by default.

During the Trump impeachment hearings, leading Democrats raised questions about the validity of this precedent. Nancy Pelosi said she believed the Justice Department’s policy was “an open question with regard to the law.”

All of this came to my attention when I saw Rachel Maddow interviewed about her new book, titled “Bag Man: The Wild Crimes, Audacious Cover-Up, and Spectacular Downfall of a Brazen Crook in the White House.” The book is derived from a podcast series she conducted titled “Bag Man.”

From what I know about Maddow, I figured she wasn’t doing deep research into Agnew just for the hell of it; rather, she was looking for relevance to our times.

And she found it. She writes: 

“I do think Agnew is under-appreciated as the first modern draft of the type Republicanism that ultimately brought us I think Sarah Palin…and Donald Trump. It’s a specific type of Republicanism that deviates from what that party brought us in the past.”

Indeed, Agnew was Trump before Trump: he loved to attack the press, poke fun at liberals, and viciously go after his perceived enemies. And, of course, he was ethically challenged, big time.

Equally important, I think, is what was brought to light about that Justice Department memo. Maddow had interviewed JT Smith, Richardson’s aide, for her podcast, and in 2019, she tweeted excerpts from a New York Times Op-Ed he’d written on March 7, before the Mueller Report was released. I followed the bread crumb tweets to Smith’s Times Op-Ed.

The headline was What if the Mueller Report Demands Bold Action?

“Reports that Robert Mueller will soon issue the findings of his investigation have brought a new urgency to the question of whether, assuming sufficient evidence exists, a president can be indicted while in office.

“Most people take for granted that both Mr. Mueller and the new attorney general, William Barr, accept the current Justice Department legal position — reached in a 2000 opinion — that a sitting president cannot be indicted. In a June 2018 memo, Mr. Barr said that under ‘the Framers’ plan,’ the ‘proper mechanism for policing the president’s’ actions ‘is the political process — that is, the People, acting either directly, or through their elected representatives in Congress.

“Yet since 1973, the Justice Department has revisited its position five times on the question of indicting a sitting president and reached different conclusions. In fact, as executive assistant to President Richard Nixon’s attorney general, Elliot Richardson, I can speak to the circumstances that delivered that first opinion: The principal purpose of the 1973 Watergate-era legal opinion — which concluded that a sitting president cannot be indicted — was to aid in removal from office of a criminally tainted vice president, who, the memo concluded, could be indicted. (emphases mine)

But it was not intended to set an ironclad precedent that would forever shape how a president might be treated.

“My experience makes me believe that Attorney General Barr should reconsider Justice Department policy. If the evidence gathered by the Mueller investigation on the actions of the president and his advisers indicates a crime, an indictment might be the proper course to hold the president accountable. 

“Further, the indictment policy does not stand in isolation: It has repercussions for a Mueller report and access to it for Congress and the American public.

The durability of the Office of Legal Counsel’s 1973 opinion is curious. It was prepared under extraordinarily stressful and unique circumstances — borne from the investigations that led to the resignations of Vice President Spiro Agnew that year and President Nixon in 1974.

“In light of the gravity of our circumstances, it would be timely and appropriate for the Justice Department to reconsider the shaky policy regarding indictability of a sitting president and provide Congress and the public with Mr. Mueller’s full findings and conclusions. Only through sunlight and transparency can we preserve confidence in our national institutions and leadership.”

As we examine all the broken norms that must be revisited post-Trump, it sure looks like this Justice Department ruling, which was engineered to deal with a felonious Vice President but gave Trump the benefit of the doubt at a very critical time, should be on that list.


18 thoughts on “Why Does the Justice Department Say a Sitting President Can’t Be Indicted? The Original Rationale’s Kinda Mind-Blowing…

    1. I hope so too, though I think it would be better for the country if justice comes from the NY prosecutors who have been investigating him rather than from what will once again be an independent justice dept in the Biden administration.

      I find myself torn between not wanting us to become the banana republic trump’s been after “lock ‘em up,” now even extending to the Republican governor of Georgia—on the one hand. But we have to find some way to hold people accountable for the most harmful policies without further tearing the country apart.

      Liked by 1 person

  1. Be careful what you wish for now that your man is headed in. Yes, the one they used to call “The Senator From MBNA”. And the one who has spent a long career amassing wealth on the Senate salary he moaned was barely enough to support him early in his career. If the NYT had been covering Hunter’s laptop and the insider testimony of Tony Bobulinski before the election, you might be more concerned about opening that door.

    That aside, do we really want to add criminal indictments to the things that are fair game to bring down a President? In my experience, the world is round and those kinds of changes don’t always ensnare just the intended victim.


    1. JP: I was not suggesting Justice commence along the findings of the Mueller Report, though I wish that had happened at the time. If you read my comment to Neil, you’ll see that I’m quite conflicted about “moving forward” vs accountability for what seem to be a slew of offenses by any number of people in the trump administration. If not, there would not be the “pardon me” dramas playing out.

      As for your other assertions, you and I are operating from a different set of facts, so I see no point in responding to yours.

      Liked by 1 person

    2. Hi JP. Since you don’t identify how Biden has “amassed” such wealth I will help you. First, the Biden’s tax returns for the last 22 years have been publicly released. Any tax payer, even those who may or may not be under audit, are allowed to publicly release their own tax returns. The Biden’s have. (And in case you don’t know, Mr Trump and his family have refused to do so.) And not once during the campaign have any Democratic opponents nor Donald Trump and his henchmen made any charge that Biden has accumulated wealth in any illegal or questionable way. Since his finances are transparent, any suggestion of corruption falls into the usual BS category. Just say stuff. So, implying any illegal activity is just that. BS

      As Mr. and Dr . Biden’s return show, until recently their main sources of income have been their salaries. He was the vice president and she was and still is, a professor. But there was recently a jump in income (up to 16 million bucks). Why? Book sales and speaking fees. As with any former VPs and POTUSES, they command a hefty speaking fee. It is called a “free market ” economy. Unregulated capitalism. Supply and demand. Not the best system, but it is the one we are currently saddled with. Nothing illegal. All above board.

      You bring up the “Hunter Biden” issue. Why? Did Hunter Biden run for office? Is he is the administration? His tax practices are under investigation. And if he did something wrong he should be fined . As should anyone who violates the tax laws, don’t you agree? As we already know from sworn testimony in court (the Cohen case) Mr Trump has a long history of violating the tax laws. So, I presume you are eager to see him prosecuted if he is found to be guilty. Right?

      I find it funny that the ONLY thing left on Fox news (which I watch once in awhile) is “Hunter Biden”. Never any talk of Ivanka and her Chinese factories. Or Kushner and his Saudi connections. Or the Trump foundation and that illegal activity. And these people are members of the administration and in power. But the only thing the Trump network has left is a tax investigation of the son of the next president. That’s all you got? Not a single thing on Mr Biden or Dr. Biden. Not a hint of corruption. Sad.

      Should Hunter Biden be investigated if there is evidence of wrongdoing? Absolutely. Should Mr Trump, Ivanka, Junior and others be investigated if there is evidence of wrong doing? Once they leave office? Absolutely. Let the chips fall where they may, but NO ONE should be above the law. No one, not even former presidents or the families of those in power.

      Liked by 1 person

  2. I can understand the reason why a sitting president should be immune from indictment WHILE in office. This prevents unscrupulous prosecutors from harassing him or her while in office. Can you imagine how many GOP prosecutors would have gone after Obama with scurrilous prosecutions? However, the statute of limitations should be suspended during the term of office . After he or she leaves office, they should be treated as any other citizen.

    Liked by 1 person

    1. I guess we have to hope we can find a way to balance the actions of unscrupulous prosecutors vs the actions of unscrupulous presidents. With 300,000 plus dead Americans, babies thrown in cages…you know the sad litany, I wish we could at least have seen how Republicans would have reacted if Mueller had felt he could lay out the compelling case.

      At the very least, Barr would have been more resoundingly refuted when he lied to the public about the findings.

      Liked by 1 person

  3. Oh dear, Annie — how exhausting on the JP stuff. But from this side of the world, let me say thank you for the post. I don’t much listen to Rachel Maddow of late, though when I do I am always educated, so thank you for bringing this content to my attention. Who knew? Spiro? Right now Trump takes up all the air and light, but putting it into context as you have is so helpful. He can’t fade into the history books fast enough for me.

    Liked by 1 person

    1. Denise. Trump is not going anywhere. He will do everything he can to undermine Biden after he leaves the White House. He will appear regularly on Fox and Newsmax, perhaps even having his own show. He sees the cashcow of MAGA supporters. Millions of them. He will drain them of their last pension dollars. They are not going away. Every election in the near future is going to be a dirty dog fight, with the Trump crew attacking democracy again and again. One thing Trump knows is a good con. And he has millions on the hook.


      1. But he won’t occupy the White House, Joseph, and he’ll be mighty busy with the lawsuits against him. I agree he’ll still grift his way along in certain circles, but he won’t get the national spotlight he craves. And I don’t expect him to run again in 2024.
        Now we just have to get through to Jan 20 intact!

        Liked by 1 person

  4. Don’t underestimate the power of the con and the power of right wing media to keep Trump going. He is also a cashcow for Fox and Newsmax. They use him as much as he uses them. He is good for ratings. I really cannot see him going away. Nothing in his past would indicate that. After all, he got started with his birtherism. And the right wing “media” joined in.


    1. Joseph: all true, but unlike now—when he’s unavoidable if one cares to read or watch the news—folks like us will more likely have to look for him to know what he’s up to. I shall forgo any such opportunities.


  5. As we learned the hard way, some things about government are being held up by an antiquated gentlemen’s agreement honor system of sorts. A monster like Trump just did as he pleased, pretending to not understand what he was doing or demanding was outright illegal or simply not done among the weak-kneed civilized set. And the same with Barr, who gets to hide under a cloak of propriety. Barr is a monster too, the ultimate fixer. He made sure no one went to jail regarding the Iran/Contra scam. Mueller erred on the side of caution and that was a huge mistake. He should have fought fire with fire. Mueller simply stating that what Trump was accountable for was way beyond the pale and, hell yes, he needed to be removed. So much for all these craven gentlemen’s agreements. We are only one more Trump (or Trumpster) away from losing our democracy.

    Liked by 1 person

    1. Greetings, Henry, and welcome to annieasksyou! I agree with you, but I wonder, with the benefit of hindsight, if anything said by Mueller—unbound—would have changed the end result. The Republicans failed to convict trump for fomenting the insurrection, despite McConnell’s statement about trump’s responsibility, which echoed the House Democrats’ case.

      Yes, we are in a scary place. We need a citizenry more alert and motivated than ever before—not to mention two Democratic Senators must wake up and realize there aren’t 10 Republican votes to protect our democracy.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s