If I had a dime for every time a cable news pundit has used the 1973 memo sent by the Office of Legal Counsel as the excuse for why a sitting president can’t be indicted, I’d have a lot of dimes. Even more, if you add the amount of attorneys, including former Special Counsel Robert Mueller’s deputy, Andrew Weissmann, who claimed they used the memo as the sole reason why charging Trump wasn’t directly recommended in Mueller’s 2019 Report.
Yet, despite everything we’ve seen, despite the batch of crimes against the Constitution committed by Trump 2.0, so far, our mafia Don president’s been proven right. He is above the law. Thanks, solely, to the above-mentioned memo.
Of course, there's the 2024 ruling by our MAGA-stacked Supreme Court, one that basically proclaims him king. And one might ask, why bother indicting if it’s just going to be overturned? Answer: Because an indictment of a sitting president, brought in the name of We the People, would put the pressure squarely where it belongs. Let those six justices explain to 330 million Americans, in broad daylight, why the man entrusted with upholding the Constitution should be exempt from obeying it. Let them put their names on yet another ruling declaring that, in America, no one is above the law — except the president.
But, this arrogant, obtuse decision notwithstanding ...
This glorified Post-It note our justice system has relied upon for the past 50 years isn’t even an official DOJ mandate. In fact, no one seems to know what is. One thing's for sure, whatever it is, it certainly appears to be a paper tiger. Fake news. A faux premise that’s given more weight/credence over the years every time it’s mentioned in print.
As Harvard’s Supreme Court expert Walter Dellinger points out in his brilliant 2018 article, Indicting a President Is Not Foreclosed, the memo, sent by OLC head Robert Dixon, is a procedural anomaly, rife with inconsistencies. Not only was the memo not addressed to anyone specific or refer to any specific situation, and most likely not even made public, it wasn’t even mentioned by any of the attorneys during the Watergate hearings. Even though those hearings took place just two weeks after the memo was written. Nor does the Constitution ever mention anything remotely resembling conferring immunity upon the president.
Add to that the small fact that Nixon, himself, was named as an unindicted co-conspirator, a charge upheld by a federal judge and defended by United States attorneys, and there’s no basis not to indict our current president. Or any other.
Back in 2019, when then Attorney General Bill Barr’s beyond inappropriate and comically misleading framing of the Mueller Report tanked years of anticipated accountability regarding Trump’s colluding with Russia, the reason a good portion of the American people thought Trump was innocent was due in no small part to the fact that, after years of investigating, the special counsel did not recommend an indictment.
In 2020, moments after Trump pardoned confessed traitor Gen. Mike Flynn, MSNBC’s Joe Scarborough exclaimed, “Why can’t a president be indicted?”
Well, why can’t he? Why do we keep referring to a memorandum as if it’s the final word? It’s just an opinion. It wasn’t written by the Founding Fathers, it’s not a Constitutional amendment. It’s not included in any historical document. At best, it’s just a well-worded suggestion.
A suggestion offered up by one guy in 1973 — a time when the world was unrecognizable compared to today.
How different were the times back then? Republicans actually chose country over party. Yet here we are, more than five decades later, and this mysteriously vague, unsubstantiated opinion is still being referred to and revered by lawyers, government officials, and talking heads on both sides as the end-all, be-all in constitutional guidance. The definitive piece of imaginary legislation keeping a broken and battered democracy from seeking long-overdue justice.
Seriously, what is wrong with us? You’d think if this was such an important subject, which it is, there’d at least be congressional hearings debating its merits and legality. Instead, we take it as gospel. Why? Are we that scared of what the pundits will say after we open that Pandora’s Box?
The idea that we, as a nation, can’t indict the thief while he’s thieving is what’s at the core of the discord and disconnect of a broken justice system. The fact that we just have to sit here and take it, while the most shamelessly corrupt con-artist in history basically opens the vault on national TV and openly mocks us as he fills his pockets, is a betrayal of everything we’ve been taught to believe. Imagine watching a bank robbery in progress and being told you can’t arrest the thieves for five years? You don’t have to imagine. That’s the U.S. Justice System.
If the “greatest country in the world” is basing some of its most important, democracy-defining decisions on the equivalent of laws and policies written on the back of a cocktail napkin, it doesn’t deserve to be called the greatest at anything. Except maybe hypocrisy and double standards.
For what feels like an eternity — I don’t know about you, but I barely remember that Biden guy — a criminal president has been laying waste to our longstanding norms and policies, non-stop, like Godzilla trashing Tokyo daily. As we scramble, talking about ways to stop the monster from destroying what’s left of our city, it continues to crush everything in sight.
One can’t help but wonder what would happen if a sitting DOJ attorney — not this one of course, and not the last one, nor the one before that — simply sat down and wrote another memo stating a sitting president can be indicted?
More importantly, why hasn’t one done so, or at least challenged it, in the more than half a century since the original? Why couldn’t Mueller have indicted Trump and, when asked about the conflict that might arise given the 1973 memo, said, “I’m basing my recommendation on the actual law. Or, the lack thereof.”
But maybe there’s hope. Maybe now that the tsunami of change so many disenfranchised have declared they demand, our new Democratic Congress will put forth legislation — maybe even an amendment — that eradicates this longstanding, outdated DOJ policy and turns the matter of the indictment of a sitting president into law. This obviously won’t be done if moderates like Chuck Schumer and Hakeem Jeffries are in charge, but perhaps if Democrats actually listen to the will of the people, and elect leaders who represent real change, there’s a shot.
Until such time, we’ll just keep on bearing witness, in real time, the damage an unhinged, unchallenged, and SCOTUS-backed criminal president can do, especially in the next two years, including doing everything he can to deter and scare the very people now charged with investigating him into not investigating “too much.”
After all, according to apparent incoming Speaker Jeffries, the American people don’t even want retribution. Sure. And the earth is flat.