# Why does the DOJ get to decide whether indicting a sitting president is constitutional? **URL:** \ **Category:** Great Debates\ **Created:** [December 13, 2018, 12:43am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027 "2018-12-13T00:43:23Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 13, 2018, 3:11pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/21 "2018-12-13T15:11:31Z")
The Imperial Presidency clause? There’s a whole lot more in the Constitution that limits it. Tell us, when has a President ever been able to order a prosecution or non-prosecution? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 13, 2018, 3:17pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/22 "2018-12-13T15:17:53Z")
> [@ElvisL1ves](#): > > The Imperial Presidency clause? There’s a whole lot more in the Constitution that limits it. > > Tell us, when has a President ever been able to order a prosecution or non-prosecution? I think Presidents have acted with prudence and restraint in NOT becoming involved with such decisions. That is not the same as them being prohibited from doing so. Absent any cite from you, I’ll just chalk this up as another one of those positions that some people reeeeeally, realllly wish was true, so they will argue it as fact despite not being able to cite a damn thing. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 13, 2018, 3:42pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/23 "2018-12-13T15:42:30Z")
> [@Ravenman](#): > > I think Presidents have acted with prudence and restraint in NOT becoming involved with such decisions. Those who have tried, like Nixon, have been charged with obstruction of justice. That’s the only thing stopping Trump too, btw. > [@](#): > > Absent any cite from you, I’ll just chalk this up as another one of those positions that some people reeeeeally, realllly wish was true, so they will argue it as fact despite not being able to cite a damn thing. When you can find something yourself, do please let us know. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 13, 2018, 3:48pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/24 "2018-12-13T15:48:14Z")
> [@ElvisL1ves](#): > > When you can find something yourself, do please let us know. For as long as you’ve been here, I assumed you’d know the fundamental rule of this message board: if you’re going to claim something, back it up. When you can’t, it isn’t the job of anyone else to disprove silly claims. ---
**Author:** ![KidCharlemagne](https://avatars.discourse-cdn.com/v4/letter/k/ed8c4c/32.png) [@KidCharlemagne](https://boards.straightdope.com/u/KidCharlemagne)\ **Post date:** [December 13, 2018, 5:12pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/25 "2018-12-13T17:12:51Z")
> [@Ravenman](#): > > What you are describing is the textbook definition of hypothetical. Courts exist in our system of government to resolve cases and controversies, where a party has been harmed and seeks justice. Courts are not allowed to rove around town, searching for ambiguities in the law that haven’t yet resulted in someone being harmed in some way. Jesus Christ that’s my point! (Sorry I’m angry at a Verizon tech ATM, not you). I’m not saying the court should seek it out, I’m saying the DOJ shouldn’t be holding it back from the courts by making a concrete interpretation of a law that is incredibly vague and suitably requires interpretation by the judicial. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 13, 2018, 5:38pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/26 "2018-12-13T17:38:13Z")
> [@KidCharlemagne](#): > > Jesus Christ that’s my point! (Sorry I’m angry at a Verizon tech ATM, not you). I’m not saying the court should seek it out, I’m saying the DOJ shouldn’t be holding it back from the courts by making a concrete interpretation of a law that is incredibly vague and suitably requires interpretation by the judicial. But it’s hypothetical because there’s nobody who has been harmed by the DoJ’s interpretation to give standing to a controversy that courts would legally be allowed to review. There’s no mechanism in the Constitution for one party to ask a court to resolve an ambiguity in the law when the ambiguity hasn’t resulted in harm to someone. So, to use a different example, let’s say decades ago, the ATF looked at the Second Amendment and said to itself, “Boy, that’s some strange wording!” The ATF can’t just go to the courts and ask them to resolve it. The courts will not entertain such a request. Now, if someone tried to buy a gun, but was denied, and that person said to himself, “Hey, the Second Amendmnet is hard to read, but I think I have a constitutional right to buy a gun – let’s get the courts involved here!” then there’s a controversy that courts are allowed to consider and rule upon. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 13, 2018, 6:13pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/27 "2018-12-13T18:13:02Z")
> [@KidCharlemagne](#): > > Jesus Christ that’s my point! (Sorry I’m angry at a Verizon tech ATM, not you). I’m not saying the court should seek it out, I’m saying the DOJ shouldn’t be holding it back from the courts by making a concrete interpretation of a law that is incredibly vague and suitably requires interpretation by the judicial. Prosecutors decide who to indict and when to indict them. If they don’t want to indict nobody can make them. That’s a safeguard built into the system. Remember that the DoJ’s opinion is internal policy only. It is precisely their job to look at the legality of such issues. You should read [Is Mueller Bound by OLC’s Memos on Presidential Immunity?](https://www.lawfareblog.com/mueller-bound-olcs-memos-presidential-immunity) from 2017. Crespo examines the history of this question, which is far older than Mueller. > [@](#): > > The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment. By contrast, two different memos—authored by the Office of Special Counsel investigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion. The article shows how nuanced an issue this is. We as a nation absolutely do not want the DoJ to blindly disrupt the entire functioning of the government for months on end just so that the courts can sometime later make a ruling. You may wish for them to do so, but I think that would be a huge mistake. Impeachment is the proper route to proceed, as the Constitution explicitly says despite your doubts. The ex-President can then be indicted without requiring any constitutional crisis. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [December 13, 2018, 6:24pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/28 "2018-12-13T18:24:22Z")
> [@ElvisL1ves](#): > > The Imperial Presidency clause? There’s a whole lot more in the Constitution that limits it. Such as? > [@ElvisL1ves](#): > > Those who have tried, like Nixon, have been charged with obstruction of justice. Not exactly, certainly not in the way most people understand being charged. The Judiciary committee approved an article of impeachment on that basis. Frankly, we have no way of knowing if multiple Presidents quietly asked for prosecutions to be made or dropped. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 13, 2018, 6:57pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/29 "2018-12-13T18:57:21Z")
> [@CarnalK](#): > > Such as? > > Not exactly, certainly not in the way most people understand being charged. The Judiciary committee approved an article of impeachment on that basis. Frankly, we have no way of knowing if multiple Presidents quietly asked for prosecutions to be made or dropped. Not to mention that Presidents have the power to pardon people who have been found guilty! What kind of crazy system would there be if Presidents could let guilty people go, but it would be illegal to make a decision on whether to prosecute a person! (Now, the fact that the President has any legal powers does not negate that they could be used corruptly and/or criminally.) ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 13, 2018, 7:09pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/30 "2018-12-13T19:09:01Z")
> [@Ravenman](#): > > What kind of crazy system would there be if Presidents could let guilty people go, but it would be illegal to make a decision on whether to prosecute a person! Ooh, ooh, ooh. I know! Exactly the sort of system the Founders wanted. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 13, 2018, 7:21pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/31 "2018-12-13T19:21:12Z")
> [@Exapno\_Mapcase](#): > > Ooh, ooh, ooh. I know! > > Exactly the sort of system the Founders wanted. Clearly! If only they wrote down somewhere that the President doesn’t have law enforcement powers, as opposed to telepathically communicating it across the centuries to only a handful of Americans… ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [December 13, 2018, 7:35pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/32 "2018-12-13T19:35:58Z")
> [@KidCharlemagne](#): > > I’m more asking a question here rather than making an argument but I’ll frame it as an argument anyway because I’m annoyed. > > One of the DOJ sentencing memos indicates that indicting a sitting president “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Are they making what seems to me a legistlative call here or is there something in the constitution that they can point to where they can say “I’m not wasting my time prosecuting this when the SCOTUS will eventually rule against me?” > Now I understand that the DOJ has to place their priorities on legal battles they believe they will eventually win, but the whole thing, at least as I read it, seems like they are acting outside their branch. The fact that the DOJ works for the president makes me further suspect of this “guidance.” What am I missing here? (post shortened) The DOJ isn’t the final arbitrator of whether indicting a sitting president is constitutional. The constitutionality would be decided by a court, or several appeal courts. The DOJ would decide if they have enough evidence to issue a warrant to arrest. They would/may also consider whether the arrest would be considered to be constitutional by the courts. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [December 13, 2018, 7:42pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/33 "2018-12-13T19:42:18Z")
> [@Damuri\_Ajashi](#): > > In order for “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” to apply, there has to be a conviction. Otherwise it is as if those words don’t exist. By your reading the word nevertheless doesn’t exist. Nevertheless means “despite what has just been said”. How does that track? “but the Party convicted shall nevertheless be liable and subject to Indictment” becomes but the Party convicted shall, despite being convicted, be liable and subject to Indictment Nothing in that second reading suggests that a President must be Impeached before being Indicted, it actually is a reminder that you can still Indict even though he’s been Impeached, that his punishment need not end at removal from office. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [December 13, 2018, 7:50pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/34 "2018-12-13T19:50:54Z")
> [@Ravenman](#): > > Clearly! If only they wrote down somewhere that the President doesn’t have law enforcement powers, as opposed to telepathically communicating it across the centuries to only a handful of Americans… The interesting and sometimes frustrating thing about the Constitution is that the Founders found some things so absolutely intuitive they never envisioned a time when they would have been needed to be written down. That’s why the original document didn’t have a right to free speech or the rest of the Bill of Rights. They were rebelling against a king whose powers were still overwhelming despite their tempered by Parliament. Evey aspect of the Presidency they envisioned was designed to curtail these absolutist and arbitrary powers. A President who could simply order his political enemies rounded up was anathema to them. It went literally without saying that no President could ever do such a thing. The government has both law enforcement officers (not just the FBI but dozens of smaller groups scattered throughout the executive branch) and prosecutors. The relationship between them and the President has varied greatly from president to president and era to era. There’s no real doubt that the sitting president has at many times directed those groups to pursue wrongdoers and possibly even individuals. There’s a huge difference between telling the DoJ to hunt down the committer of a crime and telling it to indict X for that crime, even if those are one and the same. Moreover, an indictment is not made by the DoJ. A properly empaneled grand jury does that after the presentation of evidence. For 230 years, all presidents have understood that, and all attorney generals, and all other governmental law enforcement personnel, and everybody in Congress, and every justice, and everybody else not in the government who has looked at American history. Ain’t nobody got hands big enough to hold them all. The President is not the chief law enforcement officer. That’s factually wrong. Ask the [DoJ](https://www.justice.gov/ag/about-office). > [@](#): > > The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. Just as I was trying to explain to Kid Charlemagne that the issue he raised is far more nuanced than he thinks it is, the issue that you raise is far more nuanced than you think it is. Both your simplistic treatments are wrong. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 13, 2018, 8:16pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/35 "2018-12-13T20:16:23Z")
> [@Exapno\_Mapcase](#): > > The President is not the chief law enforcement officer. That’s factually wrong. I didn’t say the President is the chief law enforcement officer. The President holds the executive power. Do you think that law enforcement powers are not executive powers? ---
**Author:** ![snoe](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@snoe](https://boards.straightdope.com/u/snoe)\ **Post date:** [December 13, 2018, 8:21pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/36 "2018-12-13T20:21:05Z")
[Here’s a Twitter thread – but “unrolled” into a single, more readable document](https://threadreaderapp.com/thread/1071782808304148486.html) – where [David Rothkopf](https://en.wikipedia.org/wiki/David_Rothkopf) makes an argument for reconsidering this DOJ policy. I’ll post some key parts here, typos and all (it was on Twitter, remember). I thought I’d throw them out there to provide some counterarguments to those supporting the DOJ policy. I’m not a lawyer or a scholar. Rothkopf’s not a lawyer, either, but he’s got solid credentials in academia, journalism, and government service. Rothkopf on the generally anti-republican nature of this theory: > [@](#): > > [This idea] is one that runs directly contrary to the idea that no man or woman is above the law-including the president of the United States. This is idea is a founding principle of this Republic,born of the abuses of a king. On the argument that indictment would tie up the executive branch: > [@](#): > > [T]he idea that the president is too busy to face the due process of our system of justice would seem to establish the idea that he or she is above the law. Next, the idea that such cases would be brought without merit is one that doesn’t exist elsewhere. Somehow, this notion gives the benefit of the doubt to the president over those bringing the charges which would implicitly suggest a superiority of mission for the president above that of the courts. > > That would seem to run contrary to the ideas underpinning core decisions of the Supreme Court like Marbury v. Madison. If an indictment is brought following the appropriate steps of due process, why should it not be honored? Why should it wait? On the argument that impeachment AND REMOVAL (for the pedants out there) is the constitutionally mandated remedy: > [@](#): > > [W]hile the Constitution creates that mechanism for dealing with… “Treason, Bribery and other high Crimes and Misdemeanors” it is silent on whether that is the only avenue available for dealing with other issues. It also should be noted while it grants members of Congress certain immunities it grants none to the president. > Further, since John Marshall, it has been believed by the Supreme Court that presidents are subject to subpoena power…which raises the question, “Why that and not a more serious form of legal process like an indictment.” Rothkopf also claims – without citations – that > [@](#): > > Scholars are divided on the issue. And while some memoranda on the point are the president should not be indicted, the ones I am familiar with were created by scholars with at least some interest in protecting or serving the president. To me, \*reductio ad absurdum \*scenarios are also a good way to think about this situation. Let’s say President Obama and 51 senators conspired to commit a serious federal crime together. I dunno, using the consulate in Benghazi to sell uranium to the Iranians for $150 billion – pick your own scenario. There won’t be sufficient votes to convict Obama if he’s iimpeached, or expel those senators from the senate. (Even if the senators are indicted and convicted.) How does a rule against indicting a sitting president who is – at least for the time being – unpunishable make any sense? If the question’s at all debatable, and this is a potential outcome – it’s a bad answer to the question. – As to the OP’s question, “\*\*Why does the DOJ get to decide whether indicting a sitting president is constitutional?”: \*\*they get to decide whether _they think_ it’s constitutional. I don’t think it’s likely they’ll reconsider their opinion during this administration, for obvious reasons. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 14, 2018, 1:14am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/37 "2018-12-14T01:14:13Z")
> [@snoe](#): > > To me, \*reductio ad absurdum \*scenarios are also a good way to think about this situation. Let’s say President Obama and 51 senators conspired to commit a serious federal crime together. I dunno, using the consulate in Benghazi to sell uranium to the Iranians for $150 billion – pick your own scenario. > > There won’t be sufficient votes to convict Obama if he’s iimpeached, or expel those senators from the senate. (Even if the senators are indicted and convicted.) How does a rule against indicting a sitting president who is – at least for the time being – unpunishable make any sense? If the question’s at all debatable, and this is a potential outcome – it’s a bad answer to the question. If you have a president and 51 senators doing a corrupt thing, then the government has already broken down. You might as well add 5 justices of the Supreme Court to the mix, and where is the remedy there? The idea of indicting a sitting president is absurd. All executive power is vested in the president and any U.S. Attorney is his agent. He would be effectively indicting himself. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [December 14, 2018, 2:18am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/38 "2018-12-14T02:18:53Z")
> [@UltraVires](#): > > The idea of indicting a sitting president is absurd. All executive power is vested in the president and any U.S. Attorney is his agent. He would be effectively indicting himself. And that would rip a hole in the space-time continuum or something? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 14, 2018, 11:51am UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/39 "2018-12-14T11:51:43Z")
> [@CarnalK](#): > > And that would rip a hole in the space-time continuum or something? No, but it would be an absurdity. The President could simply order the U.S. Attorney not to seek the indictment or order him to move to have it quashed or otherwise take no action in the case. Now that might be an impeachable offense, but that gets us back to square one. The way to avoid the absurdity is to follow the process. Impeach and convict the President causing him to no longer be President. Now, as a private citizen, he can be indicted, prosecuted and convicted criminally. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [December 14, 2018, 12:04pm UTC](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027/40 "2018-12-14T12:04:00Z")
> [@UltraVires](#): > > No, but it would be an absurdity. The President could simply order the U.S. Attorney not to seek the indictment or order him to move to have it quashed or otherwise take no action in the case. Now that might be an impeachable offense, but that gets us back to square one. No, it does not. You go back to square “The President just committed an impeachable offense in full view of the world”. You’re no longer at square “The President is accused of committing a crime sometime in the past for which we are gathering evidence.” Is there a similar provision on the State level? As in, a Governor must be removed from office before indicting him on State level crimes, since he could also order people to not seek indictments? [Previous page](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027.md?page=1) [Next page](https://boards.straightdope.com/t/why-does-the-doj-get-to-decide-whether-indicting-a-sitting-president-is-constitutional/826027.md?page=3)