We Need Accountability

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Attorney General Bill Barr thinks Special Counsel Robert Mueller could have reached a decision on whether the president committed obstruction.  He’s right. 

And his assessment only reinforces my longstanding belief that something is missing regarding The Mueller Report:  accountability.  

In two critical instances, monumental decisions were made by individuals not answerable to the people.   

The first has its origins in 1973, when in the midst of the Watergate investigation, Robert Dixon, then the head of the Office of Legal Counsel (OLC) within the Justice Department, wrote an opinion concluding that the president cannot be indicted while in office.     

Dixon reasoned that the burden of a criminal case would hinder the executive branch from “accomplishing its constitutional functions.” 

That opinion has never been tested in court - although in 1997, the supreme court did allow a civil suit to proceed against President Clinton.  

And it has long been debated by legal scholars.

In 1974, it was rejected in a memo from the staff of Watergate Special Counsel Leon Jaworski who argued that President Nixon could be indicted while in office.

In 2000, the policy against indicting a sitting president was re-affirmed by the OLC.   

But in 2017, a long- hidden memo came to light after The New York Times filed a freedom of information act request and caused its release from the national archives.  

It revealed that a law professor named Ronald Rotunda, then working as a consultant for independent counsel Ken Starr, reached a different conclusion: 

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “in this country, no one, even President Clinton, is above the law.”

Enter Robert Mueller.

Mueller abided by the OLC policy and its logic.  His report said: “….a federal criminal accusation against a sitting president would place burdens on the president’s capacity to govern….”  

He chose not to render a conclusion on obstruction of justice, overlooking that a special counsel is to provide the attorney general with a report “explaining the prosecution or declination decisions reached by the special counsel.”  

He didn’t do that.

And Mueller went one step further. 

Mueller claimed it would be unfair to establish a criminal case against a president in office where there’d be no trial in which the president could seek exoneration. 

That’s why he made no finding on obstruction of justice.  

The report said:  

“Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”

The problem is that neither Robert Dixon, the original author of the justice department OLC policy, nor Robert Mueller, who took the policy one- step further, were acting pursuant to an express provision of the constitution or edict of the congress.  

Both were singularly setting policy with no accountability to the people.  The OLC guideline is not a constitutional provision, statute or regulation and is subject to change by the mere stroke of a pen at The Department of Justice. 

That needs to change.

If it is the will of the people that a sitting president cannot be indicted, congress should pass a law saying so.

Before acting, congress might want first to consider that the president has no such protection against being charged by a state.  

And that if we were to expressly offer the American President protection while in office, we’d be an outlier.  Consider Israel, where Prime Minister Benjamin Netanyahu is preparing for a pre-indictment hearing in the early fall.  Israel has no prohibition against indicting a sitting prime minister.   

Plus, the idea that a sitting president would be incapacitated by facing trial while in office is belied by President Trump himself.  While he currently faces no charges and hence no trial, according to TIME, he is nevertheless the subject of more than a dozen other investigations and lawsuits looking into him, his businesses, his family and his associates.  That doesn’t seem to have interrupted his ability to function. He seems to thrive on it. 

Bringing accountability to this process isn’t a Republican or Democratic idea.  It’s just the right thing to do.