Visiting Professor, Corey Brettschneider, wrote an op-ed featured in The Guardian that lays out his views on the validity of the Department of Justice’s policy against indicting a sitting president.
There is no statement in the Constitution granting immunity to sitting presidents. Instead, this privilege is a Department of Justice policy based on two memos written by lawyers in the Nixon and Clinton administrations. These lawyers argued, based on their reading of the Constitution and case law, that a sitting president cannot be subject to indictment or criminal trial for two reasons: a criminal indictment would create too much of a distraction from the president’s job and would undermine the dignity of the presidential office.
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In my view, the arguments for the current DOJ policy are so flawed that it should have been overridden. The indignity to the office comes from allowing a criminal president to continue to occupy it, not from indictments. And the idea that presidents are too busy to be indicted is simply false. The constitutionally enshrined impeachment process is also time-consuming. And as the example of President Clinton’s subpoenaed testimony in Clinton v Jones made clear, presidential schedulers can figure out how to balance a president’s responsibilities as chief executive with his participation in a legal proceeding. The failure to indict the president on obstruction was Barr’s responsibility, not Mueller’s. And in light of Barr’s heavily partisan pre-release press conference, this failure is both predictable and regrettable.