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Res Publica

Mr. Attorney General, Tear Up That Memo

How a temporary legal expedient came to defy the rule of law

Attorney General Merrick Garland

On March 22, 2019, special counsel Robert Mueller submitted his report on possible collusion between the Russian government and Donald Trump’s 2016 presidential campaign to then–Attorney General William Barr. Almost a month later, Barr issued a redacted version of the report, with a statement asserting that Mueller had found no persuasive evidence of conspiracy or collusion between members of the Trump campaign and Russian agents. The attorney general further noted the Justice Department’s firmly held position that a sitting president cannot be indicted, and Mueller supported him on that point, asserting that indicting a president would be “unconstitutional.”

Most Americans, hearing of this official departmental policy, would likely assume it was based on some provision in the U.S. Constitution. However, while the Constitution provides for a process of impeachment and conviction by the House and Senate of federal officials for “high Crimes and Misdemeanors” committed in the political realm, it is silent on the question of their exposure to the regular criminal justice system. Whence came this mysterious Justice Department policy?

The U.S. government has been operating since 1789, but this policy has been in effect only since 1973, meaning that we survived 184 years without this policy. In an article appearing in The New York Times’ opinion section prior to the release of the Mueller report, attorney J.T. Smith II, who was an executive assistant to Nixon Attorney General Elliot Richardson during the Watergate scandal, explained the origins of the policy. “The principal purpose of the 1973 Watergate-era legal opinion,” he wrote, “which concluded that a sitting president cannot be indicted—was to aid in removal from office of a criminally tainted vice president, who, the memo concluded, could be indicted.”

New Republic staff writer Matt Ford followed up on J.T. Smith’s Times piece, conducting an interview with Smith for TNR a few months later. In the summer of 1973, Smith explained, Vice President Spiro Agnew was under investigation by the U.S. attorney in Baltimore for accepting bribes when he was a county executive and then governor of Maryland, and even after he became vice president of the United States. Agnew was arguing, through his attorneys, that he was not subject to criminal prosecution but only to impeachment. Agnew went so far as to file a motion in court making this contention.

Attorney General Richardson enlisted Solicitor General Robert Bork to do an analysis of the Agnew matter, and he turned to Assistant Attorney General Robert Dixon and the Office of Legal Counsel regarding whether the VP and president could be criminally prosecuted. Dixon found the matter vexing and ended up telephoning Smith and probing for “kind of offline advice as to how the attorney general hoped the opinion would turn out.” Smith said to Ford: “I remember telling him that he certainly hopes it would find the vice president to be subject to criminal process. I don’t recall saying, ‘and he wanted it to say that a president wasn’t.’ But anybody of more than average intelligence at the time kind of knew that that was the best way for it to turn out.” Smith elaborated: “There were three ways for the memo to turn out: neither subject to criminal process; both subject to criminal process; or vice president subject to criminal process, president not. And that was the only outcome that was, for lack of a better word, sustainable in the context how it had arisen” (emphasis mine). He also added: “It’s a matter of historical fact that the original Office of Legal Counsel memo saying that a sitting president isn’t subject to criminal process wasn’t prepared with that being its primary purpose. Its purpose was to say that a sitting vice president was subject to criminal process, and then the analysis was prepared by way of a distinction between the two offices.”

Rachel Maddow, in an interview with NPR’s Terry Gross concerning Maddow’s 2020 book, Bag Man, which recounted Agnew financial misdoings while in office, offered a view of how the effort to distinguish President Nixon’s liability to impeachment from Vice President Agnew’s might have turned out differently. Prosecutors, she recounted, went through an elaborate choreography to make sure that by the time Agnew got into the courtroom where he was to be sentenced, he had resigned from the vice presidency. Why did they take such pains to achieve that particular sequence? “Had he resigned as vice president moments after he pled or after he was indicted,” Maddow asserted, “we would have an entirely separate legal precedent on this case—that a president or vice president could be indicted. In this case, they sidestepped that issue by allowing him to resign.”

Mr. Attorney General, I don’t see how you can permit the Office of Legal Counsel to continue promulgating an opinion that originated as the product of temporary expediency, which many notable scholars believe has no basis in U.S. constitutional law. Yes, the opinion was reconfirmed by the Office of Legal Counsel in 2000, apparently in order to shield President Bill Clinton after he faced impeachment, making the whole matter even more confusing than it already was. And you owe it to your country to abolish this policy, because if you had launched an immediate investigation of the insurrection Donald Trump provoked on January 6, 2021, we would not now be facing the possibility of time running out for the various legal actions Trump is finally confronting before the election. Trump might become president again, free under current Justice Department rules to break any law he wants to during his second tenure in office. I don’t think you want that to be your major legacy, Mr. Attorney General.