As the heat continues to escalate against the Trump administration, and Donald J. Trump in particular, there has been much discussion as to whether a sitting President can be indicted for criminal behavior. While this issue is not specifically addressed in the Constitution much has been made of a position paper, or memorandum, issued by the Justice Department to the effect that a sitting President cannot be criminally indicted.
The memo was written by Robert G Dixon, Jr, who was, at the time, an Assistant Attorney General in the Office of Legal Counsel and published on September 24, 1973. Those who have been following Rachel Maddow’s excellent series “Bag Man” have learned that this memorandum was written in the middle of the criminal case against then Vice President, Spiro Agnew and designed to hasten his exit from political office.
In the Fall of 1973 while most attention was on the burgeoning Watergate scandal, Agnew was embroiled in multiple criminal cases against him for bribery and tax fraud. The Department of Justice desperately wanted him removed from office to avoid additional Constitutional crises besides those involving Nixon. To that end, they were willing to essentially allow him to avoid any jail time in return for his resignation. However, Agnew, a malignant narcissist and career criminal in his own right, wasn’t having it. He continued to insist that, in his position as Vice President, he was above the law and could not be indicted or criminally prosecuted.
Thus, a strategy was born to convince Agnew that his office afforded him no protection from criminal prosecution. To that end, the Department of Justice, through the OLC, issued a memorandum to the effect that, although the President could not be indicted, the same was not true for the Vice President. To bolster his determination, Dixon references the fact that a previous Vice President, Aaron Burr, had been criminally indicted for the murder of Alexander Hamilton. The memorandum then goes to great lengths to examine the duties and responsibilities of the President as compared to those of the Vice President. Dixon describes the vast powers vested in the President and points out that those include all executive powers, including maintaining and enforcing the law and conducting foreign policy, etc. By contrast, Dixon specifically lists the duties of the Vice President as being limited to presiding over the Senate, breaking a tie in the Senate, and becoming active President in the event of removal, death, resignation, or inability to discharge his duties as provided by the 25th Amendment. In short, while the President is an important and busy guy, the Vice President is a coffee boy. The author concludes that, while the President may be immune from criminal actions, owing to the magnitude of his duties and responsibilities, no similar protections are available to the Vice President. Faced with this determination, Agnew quickly conceded the point and resigned on October 10, 1973.
In view of the circumstances in which this document was produced, it is a reasonable inference that the memorandum was actually less about the protection of immunity available to the President, than a clear effort to demonstrate to a sitting Vice President why he could not reasonable be expected to be afforded similar protection. From this perspective, and absent any judicial determination to the issue, it appears that the dictum that “a sitting President cannot be indicted” is far from settled law.