Today the Supreme Court Has Effectively Declared Nixon’s Office of Legal Counsel Rule Against Indicting Sitting Presidents Unconstitutional

In deciding whether New York prosecutors are entitled to receive Trump’s tax records”, Chief Justice John Roberts asserted today that “no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” That was in keeping with prior Supreme Court decisions requiring Nixon and Clinton to hand over evidence. That is poetic justice. As Trump famously called out about Hillary Clinton hiding or deleting thousands of her emails during the 2016 campaign, “What’s she got to hide?”, one is entitled to ask what has Trump got to hide regarding his tax returns, his bank records, and even his college transcripts. His refusal to release them suggests they are incriminating at worst, and reputation destroying at best.

Of crucial significance, Chief Justice Roberts’ assertion calls into question the legality of the Office of Legal Counsel’s rule against indicting sitting presidents which Attorney General Barr has been enforcing, knowing full well that the OLC rule was ordered by President Nixon in 1973 as Watergate was unfolding in order to protect himself. Nixon knew it was constitutional to indict sitting presidents, and that’s why he ordered the rule. In a perfect parallel with Trump, Nixon was not afraid of being removed from office following impeachment by a Democratic House of Representatives, because his own party controlled the Senate. The only real danger he perceived was being indicted and found guilty. Nixon’s thinking behind ordering the OLC rule was that it would not occur to anybody to find out who ordered the rule or whether it was corrupt, fraudulent, and unconstitutional. Nixon’s rule is clearly vitiated, written with the corrupt intent to protect a criminal president. That DOJ rule is Nixon’s rule. It is meant to obstruct justice. It is illegal. It is a fraud perpetrated on the American people.

Despite finding and detailing solid grounds for indicting President Trump on obstruction of justice and other grounds, Special Counsel Robert Mueller decided to follow the rule of the Department of Justice’s Office of Legal Counsel asserting that sitting presidents cannot be indicted, the rationale being that doing so would unconstitutionally intrude on and distract sitting presidents from their duties. But that DOJ rule is itself unconstitutional, apart from its corrupt origin, by violating the principle of “checks and balances”. That DOJ rule actually eliminates one of the most important “checks” on the executive, i.e., the check of the judiciary. That DOJ rule, with a shocking, scandalous origin, constitutes a serious danger for the nation, and must be rescinded. Immediately.

The rationale that indicting sitting presidents is unconstitutional because it would unduly intrude on or distract sitting presidents from their duties is patently fallacious and specious. In fact, indicting a sitting president is no more intrusive or distracting than impeaching. Since impeachment of a sitting president is constitutional, indictment of a sitting president must also be constitutional. It is scandalous that the DOJ rule against indicting sitting presidents has not been rescinded long ago. Those currently backing the rule to eliminate judicial checks on the executive branch are either third-rate constitutionalists or covert proponents of largely untrammeled executive power and of defending criminal sitting presidents.

The fact that the Constitution specifically provides for impeachment (Article II, Section 4) and not specifically for indictment of sitting presidents, does not mean indictment of sitting presidents is constitutionally excluded. In fact, impeachment and indictment are complementary, consisting of different procedures and different legal requirements, including different thresholds for determining guilt in criminal cases. The Constitution clearly provides for two checks on the executive branch, not one. In the case of a criminal president backed by a servile, corrupt, or incompetent Senate or House majority, removal from office would be precluded if impeachment were the only tool. The need for an alternative check on the executive, entirely separate from the Congress, should be obvious. That alternative check consists of the judiciary.

The Supreme Court and Congress must immediately address the issue of the unconstitutionality of the DOJ Office of Legal Counsel rule prohibiting the indictment of sitting presidents. Not to do so would be the height of incompetence, and a grave disservice to the nation and to democracy itself. This must be done before, not after the November presidential election. The question of whether a president or presidential candidate is a criminal must be answered as soon as there are legitimate, substantiated suspicions of guilt. Furthermore, attorneys general should be required to recuse themselves from all matters connected with the presidents who appointed them, in order to avoid even the semblance of conflict of interest. The judiciary must be called on to rule on the constitutionality of Nixon’s OLC rule. A brave District Attorney should disregard the OLC rule and indict Trump on the basis of the Mueller Report’s findings. Attorney General Bill Barr should be disqualified from enforcing the OLC rule as it applies to the president who appointed him. One can fairly say that Barr should be found guilty of obstructing justice if he persists in enforcing the corrupt unconstitutional OLC rule.

© Edward Sonnino 2020

July 9, 2020


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Edward Sonnino

Edward Sonnino

Born and raised in New York City. Best course in college: history of art. Profession: economic forecaster and portfolio manager. Fluent in French and Italian.