President Trump has nothing to worry about with Robert Mueller’s investigation, his lawyer Rudy Giuliani said Wednesday, because the special counsel won’t charge the president with any crimes. The most Mueller can and will do under Justice Department policy, according to Giuliani, is publish a report.
“All they get to do is write a report,” Giuliani said. “They can't indict. At least they acknowledged that to us after some battling, they acknowledged that to us.”
But why can’t the special counsel, whose investigation is entering its second year, indict the president?
The answer dates back to the Nixon administration, when punishments were defined for presidents accused of wrongdoing. Nearly 50 years of Justice Department legal analysis has found that impeachment, not criminal prosecution, is the most serious punishment possible for sitting presidents. Only once a president is impeached or otherwise removed from office can he or she face criminal charges.
Justice Department lawyers have addressed this question four main times: first during the federal extortion investigation of Vice President Spiro Agnew, then during the Watergate scandal of President Richard Nixon, then most recently during President Bill Clinton’s tenure. With the exception of the Watergate prosecutors, department officials agreed that a sitting president couldn’t be indicted.
That means that if Trump did commit any crimes, Congress would act as the prosecutor, and impeachment would function as the indictment. And that means Trump’s effort to convince his base that the investigation is a “witch hunt” is very important.
A sitting president has never been prosecuted, and most legal experts say the question of whether he or she can be prosecuted is closed. This argument is rooted in the Constitution itself, which says that impeachment is the most severe punishment available. However, it leaves the door open for prosecution of a president after he or she leaves office:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.
The Justice Department began to formally ponder this question in 1973, when both the president and vice president were under investigation. Federal prosecutors in Maryland were investigating Agnew in a kickback conspiracy case. In September 1973, the Office of Legal Counsel penned a memo on whether prosecutors could charge Agnew. They determined that yes, the vice president could be indicted, but they said the president was different, citing his unique duty as the sole head of the executive branch. They worried that the entire executive branch would suffer if the president had to spend time and resources defending himself in court:
During the past century the duties of the Presidency, however, have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution. … 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.
The solicitor general, Robert Bork, weighed in on the issue in October 1973 with the same take:
The President’s immunity rests not only upon the matters just discussed but also upon this unique constitutional position and powers.
Days later, Agnew pleaded guilty to tax evasion and stepped down. By then the Watergate investigation was in full swing. Ten days later came the Saturday Night Massacre in which Nixon fired his attorney general and deputy attorney general after they both refused to fire the Watergate special prosecutor, Archibald Cox. That left solicitor general Bork in charge — and Bork did the deed.
In an about face, Leon Jaworski, who took over as special prosecutor on the Watergate investigation, argued to the Supreme Court in 1974 during his crusade to get the infamous White House tapes that sitting presidents were not necessarily immune from prosecution:
It is an open and substantial question whether an incumbent President is subject to indictment.
We all know what happened next. The House Judiciary Committee voted to impeach Nixon for obstruction of justice, misuse of power and contempt of Congress. Before the full House could vote, Nixon resigned in August 1974. President Gerald Ford preemptively pardoned Nixon one month into his term, closing the door on criminal charges.
The most exhaustive analysis of the presidential punishment question came in 2000, again from the Office of Legal Counsel, and again it found that the president can only be impeached, not indicted because of his or her unique position:
The constitutionally specified impeachment process ensures that the immunity would not place the President “above the law.” A sitting President who engages in criminal behavior falling into the category of “ high Crimes and Misdemeanors,” is always subject to removal from office upon impeachment by the House and conviction by the Senate, and is thereafter subject to criminal prosecution.
Mueller has spent almost his entire career working for the Justice Department, so it’s hard to imagine him going against nearly 50 years of the agency’s understanding on this legal issue. If he were to try to indict the president, then a court would likely have to decide if the Justice Department analysis is considered an official rule that Mueller is bound by or a mere suggestion.
Either way, if Trump is implicated when Mueller is finished with the probe, all eyes will be on Congress to see if they’ll add Trump to the short list of presidents — Andrew Johnson and Bill Clinton — impeached by the full House of Representatives. Whether 60 senators would convict Trump is another question.
Cover image: President Donald Trump at the White House on May 4. (AP Photo/J. Scott Applewhite)