I have read the Department of Justice memo setting forth the policay of not indicting a sitting US president: https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf
I have set down some thoughts about the Department of Justice Memo establishing the “policy” of not indicting a sitting US president. I am not going to refute the memo point by point. Rather I will present a set of presumptive reasons why a sitting president must be indicted if evidence suggests and a grand jury finds a true bill.
Part of the rationale by the Department of Justice memo for not indicting a sitting president is that it would result in some functions of government not being performed. Other than an immediate military response to foreign aggression the Justice department overstates this “issue.” Most government operations carry on without even awareness by the president or even of that agency’s or department’s head. So unless the president is a complete twit or nitwit, I am relatively confident he or she could rise to the occasion in case of military threat from abroad–even a nuclear one. If the president is a complete twit, the 26th Amendment should have been employed.
To over simplify the Justice Department memo also stresses that indicting a sitting president would look bad abroad. Prestige and image are so important that we should continue a person who has met all the criteria for an indictment from a grand jury or a finding from a prosecutor? In the simplest legal terms, “give me a break.”
Go back and read the Declaration of Independence. The charges against the King were that he was above the law–unaccountable to anyone for his actions. Clearly Americans did not fight a war to institute a head of state that is above the law-unaccountable, indictable. So, any failure to hold a president accountable is a violation of one of the fundamental pillars upon which this nation was forged. Three paragraphs in the Declaration of Independence directly apply to the twit today:
“He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.” “He has made Judges dependent on his Will alone, for the tenure of their offices…” Note, the asking for personaly loyalty as he did James Comey. AND “For imposing Taxes on us without our Consent:” Note, the taxes he has imposed are though tariffs which we pay in our purchase of those goods.
In the United States no other head of a unit of governments, agency, state, local unit of government or government corporation has immunity from indictment, arrest, trial or imprisonment. The president should not have this kingly privilege either.
The Department of Justice asserts, and again I over simplify, that indicting a president interfere with the separation of powers doctrine. Nonsense. Only the executive branch is involved until trial. To assert that the Judicial Branch is interfering when the case goes to trial is also foolishness, for the Judicial Branch depends upon the Executive Branch to execute decisions coming out of court cases/decisions. I seem to recall President Jackson noting this in a Georgia Indian Removal case, “John Marshall has made his decision. Now let him carry it out.”
The bulk of the Justice Department memo is built on case law. However, the memo, originally written as a consequence of, shall we say, the criminal al Richard Nixon, is hypothetical. All officers of the Court, employees of the government, appointed or merit, take an oath to uphold the law and defend the Constitution. If there is evidence persuasive enough for a grand jury to make a true finding and issue an indictment, then any person who has taken an oath to uphold the law and is in any position to act, must execute that indictment with all due haste or be liable for failure to meet the terms of their oath.
That those working in the Justice Department are either civil servants or hold political appointments from the president make the argument of breaching separation of powers all the more absurd. A note on The Declaration of Independence and naturalization laws and the encouragement of immigration. Specifically the current occupant of the White House is guilty of the same grievance King George III was in 1776 and earlier.
So, to not indict and try a sitting president is contrary to the very reasons the Founding Fathers gave for separation and founding a new nation.