BE CAREFUL WHAT YOU WISH FOR!

-->

The recent revelations of the thuggish conduct of this President and his associates raise, once again, the President's susceptibility to criminal indictment while in office.

Earlier this year, Mueller gave the President a pass on obstruction of justice charges because of a DOJ policy barring criminal prosecution of a sitting President. While experts challenged the legal basis of presidential immunity and noted it had no judicial support, William Barr's DOJ nevertheless stuck with the policy, and Mueller concluded he was bound by it.

But now, at the urging of the President's own legal team, we do have a direct judicial examination of that DOJ policy. Conclusion: It is a misstatement of the law.

The court decision came about when the President challenged a subpoena issued by a New York grand jury examining into the question of whether state criminal laws were violated in the handling of the Stormy Daniels payoff during the 2016 presidential campaign. The touchstone of Trump's objection was the demand for his accountant's copies of his federal tax returns, which form the basis of his state tax returns.

The President's argument that he had "absolute immunity'' from criminal proceedings required the District Judge to make the first-ever judicial review of the DOJ immunity policy and the two DOJ Office of Legal Counsel memos on which it is based. After a detailed analysis, Judge Marrero concluded:

"Because the arguments the President advances are so substantially grounded on the supposed constitutional doctrine the DOJ memos present, a close review of the DOJ memos is called for. On such assessment, the Court rejects the DOJ memos' position... . The case law does not support the President's and the memos' absolute immunity argument ... ."

The first of the two OLC memos in question is referred to as the Dixon memo. Mea culpa: in 1973, on behalf of our client Vice President Agnew, I was part of the legal team that prompted the Dixon memo. During a criminal investigation of our client, we asserted that the Vice President had absolute immunity by reason of his incumbency. Attorney General Elliot Richardson disagreed. He told us it was his view that there was no conclusive constitutional language supporting executive immunity, and therefore the DOJ could prosecute. Nixon's Chief of Staff agreed. And Solicitor General Bork, while finding the question of executive immunity to be "difficult and momentous," nevertheless also concluded the Constitution did not support it. To buttress his decision to proceed with the criminal investigation, Richardson asked for an opinion by the OLC.

That request produced the Dixon memo, which agreed with Richardson's and Bork's opinion about the lack of Constitutional language supporting the notion of executive immunity. But while  concluding the Vice President therefore had no immunity, Dixon answered a question he was not asked: he opined that the President did have full immunity from criminal investigation or prosecution!

The second OLC memo (the "Moss memo") was issued in 2000 and dealt with the susceptibility of President Clinton to criminal prosecution. That memo, while relying on and agreeing with the Dixon memo's conclusion about Presidential immunity from prosecution, disagreed with Dixon's conclusion that the president enjoyed immunity from the investigation (as distinguished from prosecution) of a sitting president.

In the end, Judge Marrero held that both memos lacked any clear constitutional basis and were based upon "abstract doctrine":

"Because the constitutional text and history on point are scant and inconclusive, the DOJ memos construct a doctrinal foundation and structure to support a presidential immunity that substantially relies on suppositions, practicalities, and public policy, as well as on conjurings of remote prospects and hyperbolic horrors ... ."

While Judge Marrero's opinion basically shreds both OLC memos, the court could have gone even further: i) the very existence of the Mueller investigation is a direct refutation of so much of the Dixon opinion that bars even a criminal investigation of the President, and more importantly, ii) the Dixon memo is corrupt: There is unrefuted reported evidence  https://time.com/5541213/donald-trump-michael-cohen-indictment/  https://londonsbh.blogspot.com/2019/05/ that before finalizing his conclusion, Dixon informed the Attorney General's office that the historical evidence was "inconclusive" and asked, "How do you want this to come out?" He was instructed on the Attorney General's views, and he obeyed!

After reviewing Supreme Court decisions involving Aaron Burr, Bill Clinton, and Richard Nixon, Judge Marrero concluded that in connection with criminal proceedings,

"[The] Supreme Court would reject an interpretation and application of presidential powers and functions that would sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances ... ."

Further, the court noted that the case for presidential immunity is even weaker when it comes to state proceedings i) because of federalism and comity considerations and, ii) because arguments offered in support presidential immunity, such as Executive control of the prosecutorial function and the President's pardon power have no application to state criminal proceedings.

Bottom line, the President's propensity to sue has left him worse off than he was before. The District Court's powerful analysis torpedoes the DOJ immunity policy with respect to both state and federal investigations and prosecutions of sitting presidents.

Now, if we only we had a real Department of Justice ... .