In another extreme and dubious argument in court, President Donald Trump has gone to court against to block Manhattan District Attorney Cyrus Vance from gaining access to his tax returns. The President’s resistance to disclosing his taxes is now legendary, including differing excuses. However, this 20-page filing contains a particularly disconcerting argument that Trump cannot be criminally investigated while he is in office. It is an argument that has little support in either the text of the Constitution or cases dealing with Article II.
Trump claims in the filing that a sitting president cannot be arrested, imprisoned, detained, “investigated, indicted, or otherwise subjected to the criminal process.”
The argument relies on an Office of Legal Counsel legal memo that I have previously criticized as poorly reasoned and supported. The OLC has a long history of expansive interpretations of executive powers and privileges. While admitting that the issue is far from settled, the OLC argued that a sitting president should not be criminally indicted. I have long maintained that the memo is fundamentally wrong on the Constitution and the intent of the Framers. There is no bar on the prosecution of a sitting president and certainly no bar on the criminal investigation of a president.
There are times when a criminal prosecution may be the only practical answer for a criminal chief executive. In the case of Illinois Gov. Rod Blagojevich, years of alleged special dealing produced no impeachment. Only after he was charged in office did the Illinois legislature vote to remove him. But is a president inherently different from a governor? When he was solicitor general of the United States, Robert Bork wrote a brief saying that a vice president (like Spiro Agnew) could be indicted in office but not a sitting president. Leon Jaworski, the Watergate special prosecutor, disagreed and suggested that such an indictment might be possible. Recently released material related to the Clinton impeachment shows that the staff of independent counsel Kenneth Starr prepared a memo supporting the indictment of a president and drafted indictments for Bill Clinton.
The Justice Department itself concluded during the Clinton administration that “[n]either the text nor the history of the Constitution” is “dispositive” on this question but has rendered an internal opinion against indictments of a sitting president as a matter of “considerations of constitutional structure.” Mueller (who is supposed to follow the “rules, regulations, procedures, practices and policies” of the Department) may consider himself bound to this guidance and put evidence of any crime in a report to Congress for possible impeachment.