Trump’s attorney general must indict the president if Mueller recommends action: Watergate-era DOJ official
President Donald Trump. (AFP Photo/MANDEL NGAN)

Attorney General William Barr should reconsider the Justice Department policy against indicting a sitting president, according to a former official who helped craft that directive.

The current legal position was reached in 2000, but the directive against indicting a sitting president was first delivered in 1973, during the Watergate scandal, with a very narrow purpose, according to J.T. Smith II, executive assistant to Attorney General Elliot Richardson at the time.

Smith, writing for the New York Times, said the 1973 memo was intended to aid in removal of the criminally tainted Vice President Spiro Agnew, and not to set an "ironclad precedent" shielding presidents from indictment.

The Justice Department has revised its position five times since then, and reached different conclusions, and Smith said the current position -- in place for nearly 20 years -- should not be taken for granted.

"The durability of the Office of Legal Counsel’s 1973 opinion is curious," Smith wrote. "It was prepared under extraordinarily stressful and unique circumstances — borne from the investigations that led to the resignations of Vice President Spiro Agnew that year and President Nixon in 1974."

Agnew faced a grand jury investigation into alleged bribery, extortion and tax evasion, mostly coming from his time as governor of Maryland, and Richardson sought guidance on putting legal pressure on the vice president, who pleaded no contest after he was indicted and then resigned.

"(Special counsel Robert) Mueller’s investigation has brought us to face similar questions of institutional integrity and transparency for the American public," Smith said. "If Mr. Barr determines that Mr. Mueller’s findings compel legal action, he should reconsider the policy against indictment of a sitting president."

If the attorney general believes the president's conduct should be held accountable by the political process and not criminal prosecution, Smith said Barr must share the Mueller report with Congress -- and the public.

"In light of the gravity of our circumstances," Smith said, "it would be timely and appropriate for the Justice Department to reconsider the shaky policy regarding indictability of a sitting president and provide Congress and the public with the Mr. Mueller’s full findings and conclusions. Only through sunlight and transparency can we preserve confidence in our national institutions and leadership."