Why can’t a sitting president be charged with a crime?

In remarks from the Justice Department Wednesday, special counsel Robert Mueller said a decades-old legal opinion prevented him from considering obstruction of justice charges against President Donald Trump and suggested that the Constitution "requires a process other than the criminal justice system to formally accuse the president of wrongdoing."

Mueller, speaking publicly for the first time since the investigation into Russian interference in the 2016 presidential election began two years ago, said he and his team found “insufficient evidence” to accuse Trump’s campaign of conspiring with Russia when it came to the 2016 election. He went on to say he did not reach the same conclusion about charges the president obstructed justice.

“If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said.

Mueller cited guidance from the Office of Legal Counsel -- a division within the Justice Department that drafts the attorney general's legal opinions and provides its own opinions for the counsel to the president and other DOJ offices -- as part of his decision not to charge Trump with obstructing justice.

How does the OLC opinion affect Mueller's investigation? Here is what the OLC guidance said about indicting a sitting president.

What does the ruling say?

Legal opinions on two occasions from the OLC concluded that criminally prosecuting a sitting president would undermine his or her ability to perform the duties of the executive branch.

"The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions," the 1973 guidance, written when President Richard Nixon was facing obstruction of justice charges.

“The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” the memo stated.

The other opinion – written in 2000 when charges of obstruction of justice were being leveled at former President Bill Clinton – read: "Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution."

What about impeachment? Can a sitting president face obstruction charges during an impeachment?

Yes. Both presidents who have faced impeachment – Nixon and Clinton – were accused of obstruction of justice.

But remember, impeachment is a political process. The House of Representatives, the body that would bring impeachment charges against a president is in the hands of the Democrats, but the Senate, the body that would conduct the “trial” for impeachment, has a Republican majority.

The Constitution said that a president can be removed from office if he has committed “treason, bribery, or other high crimes and misdemeanors.”

The standard of what constitutes “high crimes and misdemeanors” is vague, and can be defined by the Congress in an impeachment proceeding.

Did Mueller have to follow the guidance and not indict Trump if he felt he had proof of obstruction?

There is some room in the policy that would have allowed Mueller to bring charges in "extraordinary circumstances" as long as the U.S. attorney general gives his approval. Some attorneys say that a special counsel, such as Mueller, is not bound by the opinion since his work is not the usual work product of the Department of Justice.

Ken Starr, who was the independent counsel who investigated Clinton, said he did not believe he was constrained by the OLC guidance. However, Starr did not indict Clinton for obstruction.

Can a president be indicted once he has left office?

Yes, as long as the statute of limitations or the time prosecutors have to file charges after a crime has been uncovered, has not expired. Many federal crimes have a five-year statute of limitations which means if Trump is re-elected in 2020, he may be beyond the statute of limitations before he is out of office.

About the Author