Here is the DoJ Policy:

The indictm ent o r cnm inal prosecution of a sitting President would unconstitutionally undermine the
capacity o f the executive branch to perform its constitutionally assigned functions

October 16, 2000

https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf

I PROMISE YOU, it would 'undermine my ability to perform 'work functions'.

I'll grant that I'm not running The State, but interrupting the rest of my life DOES SEEM to be one of it's purposes, IF that life is mostly composed of criminal activitity....

History of the '73 opinion:
Relies heavily on '73 highly questionable analysis "concocted" to deal with both Nixon & Agnew
--with Nixon impeachment looming and with prosecutors fearful that a Vice President known to have committed ongoing fraud and corruption could assume the Presidency. In questioning whether or not they could charge a sitting VP, they likewise had to address the issue for the Presidency. The fact of this poorly researched and ad hoc analysis was addressed in some wonderful interviews with the original Spiro Agnew prosecutors on Rachel Maddow's "Bagman" podcast. (highly recommend)
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Even Ken Starr did not agree with it.

https://www.lawfareblog.com/indicting-president-not-foreclosed-complex-history

5. The May 13, 1998, Memorandum to Independent Counsel Starr. This memorandum was written by professor Ronald Rotunda in response to an inquiry from Independent Counsel Kenneth Starr. Rotunda concluded that

In the circumstances of this case, President Clinton is subject to indictment and criminal prosecution, although it may be the case that he could not be imprisoned … until after he leaves that office.

The Rotunda memo is the least persuasive of the opinions in question. First, its status is unclear. It says that the question was posed by Starr, but it does not note whether Rotunda, who may have been a paid consultant, had any official governmental role. There is no indication that the opinion underwent any review by other officials.

The opinion seems to claim too much, in my view, by suggesting that a president could be not only indicted but actually put on trial while serving. (Rotunda does not even rule out imprisoning a president.) There is an informal and partisan flavor to the memo that makes it less serious than the other arguments put forth by the department.

Rotunda argues that the then-existing Independent Counsel Act contemplated that a president could be investigated and questioned, so therefore it must follow that he can be indicted. This is the obverse of the current argument made by some that since a president can’t be indicted, he can’t be questioned. Both positions are based on category mistake. No one has ever seriously suggested that a president can never be indicted. The only debate is whether any indictment of a president must be postponed until he is no longer in office. Since any president can indisputably be indicted when no longer in office, there is no permanent immunity that would obviate questioning of a president.

6. The 2000 OLC Memorandum. This opinion of the Office of Legal Counsel, signed by Assistant Attorney General Randolph Moss, is a thorough and thoughtful analysis of whether a president can be indicted and prosecuted while serving in office. It appears to have originally been drafted during the time of the Starr investigation of President Bill Clinton. The case against putting a president on trial is fully convincing to me. What is not so clear, however, is whether there is sound basis for withholding an indictment of a president even if any trial proceedings must await the end of his term. Like the Dixon memo, the 2000 opinion set out several obstacles to trying a president. None of those reasons, save one, applies to naming a president in an indictment.

The 2000 opinion gives so little thought to the possibility of indicting-and-postponing that it gives only one reason why such a course should be precluded: the idea that including the president in an indictment would cast a “cloud” over the presidency. The notion that reputational harm alone should preclude a normal part of the system of justice seems incompatible with the Supreme Court’s decision in Clinton v. Jones, in which the court set such a high bar for any presidential immunity from the normal process of litigation that not a single justice found that actually undergoing a civil trial was precluded.

because the majority probably would like it.

it's the code of conduct that he agreed to, the code of conduct expected of him by his employer, and the code of conduct that the authority of the executive branch has set up.

In other words, Mueller may derive authority as a prosecutor from his position, but his position is circumscribed by a set of rules and regulations that govern that position.

It's not a question of whether it is *required* by the Constitution; it's a question of whether the restriction is *prohibited* by the Constitution. It isn't.

Office of Legal Counsel. It is an opinion, not something in the Constitution.

the Constitutional separation of powers doctrine. Many Constitutional doctrines are not specifically set forth in the Constitution (for example, the right to privacy that is the basis of Roe v. Wade) but are the result of judicial interpretation. No court has ever ruled on the particular issue, but here's what the OLC said in 2000, analyzing and re-affirming the 1973 opinion: https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf It's long and thorough, and it's not an unreasonable argument. However, some other legal scholars, notably Laurence Tribe, disagree, and their argument is also reasonable. https://www.lawfareblog.com/yes-constitution-allows-indictment-president Mueller concluded that because he was operating under the direction of the DoJ he was obligated to follow the guidance of the OLC memos and not challenge their conclusion that to prosecute a sitting president would be unconstitutional. Had he done so the matter would be challenged in court, and we might not have liked the ultimate result - which probably would be the same as that of the OLC memos - except that it would now be the law and not just a guideline.

while so many "reporters" just report that "indicting a sitting president is unconstitutional."

Good read

are not in the Constitution. This is why they hope to reverse the decision. But we all are aware of it. Many, after Mueller's recent appearance took from him that not indicting a sitting president was in the Constitution. It is not, only being interpreted this way and should be reported as such by our "media" and pundits.

And like you, I think the text of the clause is pretty plain.

I love reading your posts. You explain things so clearly and thoroughly!

Your posts are so reasonable, and we need a whole lot more of that around here.

On both counts.

It is explicitly separate from and independent of impeachment.

Those DOJ memos are balderdash. Each was written to protect a specific president and they are strictly political, written by employees of those presidents.

"The Constitution explicitly says you can indict any lawbreaker in the Government." My copy does not "explicitly" say that.

Article 1 Section 3 Clause 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

"the Party convicted" -- past tense.

It doesn't say "you can indict any lawbreaker in the Government" while they're in office. This clause refers to the penalties for "judgment in cases of impeachment.""

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

This means that an official a person impeached and removed from office can be criminally charged after removal- by definition, this does not apply to a sitting president

It only says you can be impeached and indicted; it does not say you have to be impeached and convicted before you can be subject to indictment. It is saying the two processes are entirely independent of each other.

And by whose definition does this exclude a sitting President? That is not in there whatsoever.

It says that once someone is impeached and convicted, the only penalties available are removal from office and disqualification from holding appointed federal office, but "but the party convicted" can be charged with a crime. It does not say that a sitting president can be indicted. It says that a convicted and removed president can be be indicted. Two different things.

If the drafters had intended to say that a sitting president (or any other sitting officer) could be indicted of any crime while in office, they would have stated it outright and included it elsewhere in the document - most likely in Article II under the presidency. They wouldn't have buried this instruction in the impeachment clause and attached it to one very narrow class of person ("a party {impeached and} convicted".)

I'm not arguing that a president cannot be indicted while in office - just saying that nowhere does the Constitution expressly authorize the indictment of a sitting president.

Convicted = removed. The context is a president who has already been convicted and removed from office.

All we need is to grill Trump on Cspan for few days, because there are like a dozen or more inquiries. He wouldn't last one hour, next stop, mental health facility.

If one is convicted, one is thrown out of office. Once out of office, the person is then subject to indictment.

The language is inclusive, not exclusive.

In that it refers to a very specific status of person, thereby excluding all others not specifically described. This specific reference applies ONLY to a party convicted and removed from office. That doesn't mean that the same rules don't apply to others (since other people also can be indicted under the law), but the fact that this particular provision refers to one class of persons makes it exclusive, not inclusive.

You are referring to exclusive/inclusive of classes of Officers.

Once again, it says "... but the Party convicted shall be....". Someone impeached and subsequently convicted shall be thrown out of office, and once that occurs, that person shall be subject to indictment and trial by jury. Were the two things not related, they would have been written in different clauses.

the president because of the separation of powers, and because the Constitution clearly gives that power to Congress. It has never been tested in the Supreme Court, and I wouldn't want to test it with this court and this president.

that while there's weight to the separation of powers argument, there's a YUGE practical concern with the conclusion that presidents are prosecution-proof:

Suppose the president actually kills someone, and the evidence is incontrovertible. Suppose, for example, Trump shoots much-loathed reporter Jim Acosta on live television during a press conference. The OLC opinion says he can't be investigated, arrested or prosecuted for it; he just gets to carry on as president as if nothing had happened. How would the country be able to tolerate that? How can it be said that we just have to wait until the House impeaches him and the Senate convicts him? Of course, the process would probably be expedited - maybe it would take weeks instead of months - but in the meantime, what damage could the president do, knowing that he'll eventually be turfed out of the WH and prosecuted? Could he hide the body in the Rose Garden and dispose of the weapon and claim that it was an imposter that did it? Take off for a country with no extradition treaty (Russia?) before he can be impeached or prosecuted? Kill more people? Set fire to the White House?

Of course, this is an extreme example of a hypothetical that's not likely to happen (Trump would never do his own wet work), but it does make the point that a blanket holding that presidents are immune from prosecution could lead to a result the framers of the Constitution never would have intended.

And it can't be argued that it was "because their boss said so" - since Clinton was on his way out when it was finalized - and it came AFTER impeachment, so it wasn't intended to impact Clinton's rights.

And as the Constitution says, his previous impeachment does not exclude indictment, so he was still "in need" of protection.

It wouldn't have made any difference if he was indicted in October 2000 or on January 21, 2001 - he wouldn't have gone to trial for months if not years, so a couple of months wasn't going to matter.

The OLC memo wasn't updated and ratified to "protect" Bill Clinton. It was updated and ratified because the OLC attorneys believed that was the state of the law.

FYI, the Office of OLC is staffed primarily by career attorneys and is not known to be political. They call them as they see them.