J.T. Smith II, executive assistant to Attorney General Elliot Richardson during the Watergate scandal, writes in this morning’s New York Times that current Attorney General William Barr must reconsider the Justice Department (DOJ) policy against indicting a sitting president.
According to Smith, the current DOJ legal position was reached in 2000, but the directive against indicting a sitting president was first delivered in 1973, and it had a very narrow purpose which does not apply to the current situation.
The 1973 memo was drafted only to help in removal of the criminally-charged Vice President Spiro Agnew, and not to set an “ironclad precedent” shielding presidents from indictment, according to the former DOJ official.
Smith said the DOJ has revised its position five times since 1973, and reached different conclusions, but nothing should be assumed or taken for granted.
Therefore, there is no legal basis to conclude that Donald Trump cannot be indicted if Mueller finds evidence that “compels” it.
“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 Attorney General Richardson sought legal guidance on putting pressure on the vice president, who pleaded no contest after he was indicted. He later resigned in disgrace.
“Special counsel Robert Mueller’s investigation has brought us to face similar questions of institutional integrity and transparency for the American public,” Smith wrote in the Times, and then added:
“If Mr. Barr determines that Mr. Mueller’s findings compel legal action, he should reconsider the policy against indictment of a sitting president.”
Smith also said Barr must share the Mueller report with Congress — and the public if the attorney general believes the Donald Trump’s conduct needs to be held accountable by the political process and not criminal prosecution.
“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.”
Donald Trump Will Be Forced From Office One Way or Another
Some people believe that Bob Mueller and federal prosecutors will indict the Trump Organization instead of trying to indict Donald Trump himself. This could lead to financial loss for the president, and he may want to cut a deal that would include him leaving office.
Others believe that the prosecutors have already obtained indictments against two or three of Donald Trump’s children, and they will be unsealed and delivered in the near future. The thinking is that this could pressure Donald Trump to resign from office voluntarily.
Other current and former DOJ officials agree with Smith that there is no legal authority that would prevent Donald Trump from being indicted, even as a sitting president.
Members of Congress have said they will demand that Bob Mueller turn over his evidentiary files to the House so they can use that evidence to start their own impeachment trial.
One way or another, it seems very clear that Donald Trump will be held accountable for his crimes, and will probably not serve out the remainder of his term.
I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.