The debate around the investigation of sitting presidents by federal prosecutors is increasingly pressing, as former White House special counsel Richard Sauber argues in an analytical piece. The Office of Legal Counsel (OLC) maintains that the indictment of a sitting president remains constitutionally impermissible, thus creating challenges for special counsel and federal prosecutors.
Despite the Supreme Court’s decision in Trump v. US that confers immunity on sitting presidents for “official acts,” the scope for investigation remains on actions undertaken prior to office. As Sauber outlines, this ambiguity can lead to constitutional crises and uneven applications of justice.
The problem is compounded by the absence of clear guidelines for prosecutors concerning the actions they can take upon concluding investigations. Prosecutors continue to investigate presidents despite a consensus that they cannot bring charges against them, leading to inconsistent and often politically charged outcomes. The regulations require prosecutors to issue reports detailing their prosecution decisions. However, the lack of specific guidance on what prosecutors are permitted to do once their investigations conclude leaves a gap filled by subjective interpretations, resulting in varying approaches by figures like Robert Mueller and Robert Hur.
Mueller, for instance, cited fairness among reasons for not explicitly declaring President Trump’s criminal activities, yet insinuated obstruction was not proven. Hur approached differently, concluding no charges were necessary while inadvertently highlighting controversial points about President Biden’s conducts. Such inconsistencies signal a need for systematic reform.
According to the OLC, impeachment stands as the constitutionally appropriate recourse for addressing presidential misconduct. This perspective, long held since the OLC’s conclusions in the 1973 and 2000 opinions, recommends that criminal investigations of sitting presidents be forsaken in favor of legislative processes, thus preventing disruptions to presidential duties and maintaining constitutional integrity. Given the sensitive nature of these investigations and the profound implications they carry, the need for a universally coherent approach is evident.