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.