In the aftermath of the testimony from Special Counsel Robert Mueller before Congressional committees this week, we can view the Russian investigation and the hush money investigation in the Southern District of New York from a bit of a distance. In each case the President appears to have benefited from a Department of Justice guideline that prevents the indictment of a president while that person is in office. It appears that in each investigation there may have been sufficient evidence to obtain an indictment of someone who was not currently serving as President of the United States.
As a starting point, the guideline in question is a policy determination of the Department of Justice that applies only to that department. It is not dictated by the United States Constitution, which is silent regarding presidential immunity from prosecution. It is not dictated by federal law as Congress has not attempted to prevent the charging of a sitting president with a criminal violation. Finally, the Supreme Court has not decided any case involving the charging of a president with a crime although it has ruled that a civil action against a sitting president may proceed while that person remains in office. The guideline does not bind any state and local prosecutors. The policy was established by DOJ’s Office of Legal Counsel. It did so at the request of the Attorney General. Initially, the policy came into being in the 1970’s during the Watergate investigation. It was reviewed and affirmed in the 1990’s during the Whitewater series of investigations. We do not know whether the Attorney General sought review of the guideline during the Russian investigation.
In the Southern District of New York, the President’s personal attorney Michael Cohen pleaded guilty to charges involving election fraud for paying hush money to two women with whom Trump allegedly had sexual encounters. In filings to the federal court prosecutors referenced an unidentified co-conspirator at whose direction Cohen acted. The description and circumstances leave no doubt that Trump was the co-conspirator. It seems very possible that the President would have been charged in this case absent the DOJ guideline preventing it.
The Russia report chronicles instances of potential obstruction of justice by Trump. It makes clear that no decision on Trump’s culpability appears because the guideline prevented charging the President. While this case seems less clear than the New York case, there is in the Russia report substantial evidence of obstruction. Moreover, further analysis did not occur because the DOJ guideline made such further investigation and review pointless.
Finally, it is interesting to note that there does not appear to be any prohibition against charging a President with a crime after he or she has left office if the statute of limitations has not expired. This raises an interesting question of whether the statute of limitations would be tolled by the fact that the president was not indicted while in office because of a DOJ guideline stating that such charging could not take place.