Last fall, Nancy Pelosi pledged to find “common ground” with President Donald Trump and the Republicans once she became House Speaker. Sadly, she abandoned that pledge even before being sworn in. In so doing, she displayed either a flagrant ignorance of or willful blindness to Department of Justice (DOJ) legal rules.
In an NBC interview hours before officially starting her speakership, Pelosi responded to a question about whether Special Counsel Robert Mueller could indict Trump while in office: “I think that is an open discussion in terms of the law.”
No, it is not. Two DOJ Office of Legal Counsel (OLC) opinions hold unequivocally that a sitting president cannot be indicted. Mueller, who reports to the Attorney General and is therefore considered a DOJ employee, must comply with those decisions.
In 2000, a Democratic (Clinton) Justice Department OLC clearly found that indicting a sitting president would be “unconstitutional,” confirming the equally clear decision that a Republican (Nixon) DOJ OLC had reached in 1973.
The two opinions grounded their reasoning in both the Constitution and policy.
There is a constitutionally created national process for electing the president. It would be “incongruous,” observes the 1973 opinion, for a “jury of twelve, selected by chance ‘off the street’” to remove the president.
Both opinions weighed the constitutional balance of the president’s powers as chief executive to oversee all federal prosecutions and the presidential authority to assert executive privilege over evidence to be used against him. Both opinions agreed that being “chief executive and the defendant in a federal prosecution brought by the executive branch” set up a “structural anomaly.”
The most compelling constitutional argument, concluded both opinions, is that indictment of a sitting president violates “the doctrine of the Separation of Powers”—and therefore the Constitution—because it “unduly interfere[s] … with the conduct of the presidency.”
The opinions also viewed policy as a factor to be considered, noting that the modern presidency is all-consuming, having assumed “a leadership role undreamed of” in the 18th century. In 1973, the OLC marveled, “The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.” Both agreed that only impeachment complies with the constitutional process for removing a president.
When asked about the unambiguous opinions, Pelosi merely shrugged, “I do not think that that is conclusive.”
It is possible that Pelosi forgot the promise she made to voters when campaigning for Democrats so she could regain her speakership, thus succumbing to a selective amnesia that afflicts many politicians once elected. It is more likely that she never meant what she told the American people in the first place.
Consider that she is now doing whatever she can, short of allowing impeachment hearings to proceed, to tarnish Trump. A flurry of frivolous House investigations has been launched, all aimed at the president or his family.
Pelosi wants it both ways. The longtime Democrat House leader longs to dump Trump via an indictment. Mueller prosecuting the president, rather than Democrats pursuing impeachment, eliminates a political gamble the Republicans lost during the Bill Clinton travails.
Pelosi’s thumbing her nose at DOJ’s long-established precedent of following the guidance of OLC opinions corrupts the legal process. Mueller cannot do the Democrats’ dirty work by indicting the president. Impeachment is the only route for riddance. Democrats will have to decide, even when Mueller fails to find criminal conduct, whether to go there.
Victoria Toensing, a founding partner of the Washington law firm diGenova & Toensing, LLP, has extensive experience in all three branches of government. She is an internationally known expert on white collar crime, terrorism, and national security and intelligence matters.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.