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I have seen many news articles mentioning that the Department of Justice has long argued that it cannot indict a sitting President; instead the appropriate course of action is for the DOJ to present evidence of criminal wrongdoing to the House of Representatives so they can consider impeachment proceedings. But my question is, does the Department of Justice have any actual rules or regulations which prohibit federal prosecutors from indicting a sitting President? Would a federal prosecutor who convened a grand jury to indict a sitting President be subject to disciplinary action by the Department of Justice?

And if there are any such rules or regulations, do they apply to Special Counsels? This may all become relevant depending on the outcome of Robert Muller's Obstruction of Justice investigation into President Trump.

  • Please see my updated answer (though I make no claims of its accuracy). – tonysdg Jun 20 '17 at 21:21
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Updated answer based on discussion with OP (see comments).

First, a disclaimer: I am not a lawyer, so there's a good chance I'll mess something up here.

I'll begin by noting that a special counsel, such as Robert Mueller, is considered an attorney for the government. As such, the rules and regulations of the Department of Justice apply to him just as they would to any other DoJ employee.

Furthermore, as an attorney for the government, a special counsel is "subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties...". In other words: the usual rules of practicing law still apply to special counsels (in addition to the DoJ rules, or vice-versa if you so prefer).

Now comes the crux of the matter: what would happen if a special counsel, or any attorney for the government, tried to indict a sitting president? As far as I can tell, that would fall under CFR Chap 28 Section 77.4 . Specifically, under the condition "Inconsistent rules where there is a pending case." (Note: I'm assuming that somehow, this made it through a federal judge. That ain't going to happen, but the OP wants to assume it does.)

As I read it, the "inconsistency" here stems from the fact that there is no settled law, short of the memos from the Office of Legal Counsel cited below, pertaining to such a scenario. The regulations therefore suggest that

...the attorney is encouraged to consult with a supervisor or Professional Responsibility Officer to determine the best course of conduct." (Source)


Beyond that, I think an argument could be made that a special counsel trying to indict a sitting president would violate CFR Chap 5 Section 2635.101 Subpoint B.14:

Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.

Given that it's been reasonably-well established (again, see memos below) that the president is immune to any form of criminal indictment, I think trying to do exactly that could be considered a violation of this statute. Violation of this statute (and any of the other ethical guidelines)

... may cause the employee's agency to take disciplinary action, or corrective action...in addition to any penalty prescribed by law. (Source)

Again, though -- I am not an attorney, so this is just a reasonably well-educated citizen's attempt at reading the U.S. Code of Federal Regulations. Make of it what you will.


Original answer follows.

This particular issue was settled in the 1970s (specifically, 1973) during the Watergate scandal. As part of the investigation, the DOJ's Office of Legal Counsel was tasked with determining whether or not the President and/or other federal civil officers could be indicted or criminally prosecuted while in office.

In a memorandum issued in 1973 and reaffirmed in 2000, it was concluded that the President is immune from indictment and criminal prosecution while in office. The rationale is that allowing such an indictment or prosecution "would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions." All other federal civil officers, including the Vice President, do not share this immunity.

Note that the President is only immune while in office; if removed via the impeachment process, they lose this immunity and may then be indicted and prosecuted. However, the 1973 memorandum also addressed this issue, noting that while it may be possible

...to indict a sitting President but defer further proceedings until he is no longer in office ... given the realities of modern politics and mass media, and the delicacy of the political relationships which surround the Presidency both foreign and domestic, there would be a Russian roulette aspect to the course of indicting the President but postponing trial, hoping in the meantime that the power to govern could survive. (Source)


Unfortunately, I was only able to find the text of the 2000 memo; the link is above. If I can find the 1973 memo, I'll add it as well. Link updated!

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To elaborate on Tony's excellent answer:

There is a continual misunderstanding of the Department of Justice and Special Counsel. I think that most people judge by their own point of view. Such as if I, as a private citizen, were to steal something from a coworker, the cops will come, charge me with a crime, a judge will look at my case and give me a punishment.

This does not apply to the Office of the President, who has only one superior authority and that is The Constitution. The office of the President, in accordance with The Constitution, can be removed from office by Congress and/or Impeached. That is it, they are the only ones that have power over The President. A lot of power because the "High Crimes" can be anything that Congress says it is including "We just don't like the President"

Going back to my scenario: I am now President and I go down to the lobby of the White House, pick a tourist and take his wallet in front of many witnesses. Who is coming to Arrest me? No one can except for the Attorney General, except as soon as he approaches me (he is also my best friend, i did the favor of giving him a lot of power) I fire him. I, as President can keep firing the next Attorney General in line of succession because I can also appoint the next person in that same line of succession. So no one can arrest me without being stripped of Police Powers.

None of that matters because someone from the leadership in Congress can call any of the witnesses before a committee and ask anyone (including people who heard about the incident from a third party) and as long as the witness is on record and there is enough votes to remove the President, can remove them. Subsequently, now that I'm no longer President, the tour security guard can now slap handcuffs on me and take me to the Federal Lockup to await trial.

Many people look at the Federal Regulations (CFR's to quote that there is the authority for the DOJ to regulate the head of the Executive Branch. But they don't apply to the President. You can read for your self in the Wikipedia Article about CFR. Here is a quote:

The CFR was authorized by President Franklin D. Roosevelt on October 11, 1938, as a means to organize and maintain the growing material published by federal agencies in the newly mandated Federal Register. The first volume of the CFR was published in 1939 with general applicability and legal effect in force June 1, 1938

That means the CFR was created by the President. It is the Employee handbook for employees of the Executive Branch. The President is not an employee, because it is an entity that derives it power from the President. All Cabinet members and departments are employees. Including the FBI and CIA.

One caveat to my scenario. It is legally possible that a member of a Police force from a state can arrest the President if the crime was committed in the jurisdiction of the Police Force since the States derive their police power from their State Constitution. I'm not legally sure how that would go but I assume that the policeman would have to go through the armed forces (both national guard and regular) and secret service in order to do it. THat would be a hell of a sight.

  • Let me reiterate what I said in the comments: you might believe that the President is above the laws of Congress and that he cannot be indicted or convicted, but there are people who disagree with you on this. If a federal prosecutor was one of the people who disagreed with you on this, and he tried to convene a grand jury in, say, a Federal District Court, then the court would have to make a decision as to whether it is legal. Now you might have an opinion as to how the court will likely rule (or should rule). But none of that is relevant to my question, which is about DOJ rules/regulations. – Keshav Srinivasan Jun 19 '17 at 19:21
  • My question is not about whether a federal prosecutor can legally indict a sitting President. My question is about whether if a federal prosecutor were to try to do so, before the courts even decide the legality, would the prosecutor be violating any rules or regulations of the Department of Justice? – Keshav Srinivasan Jun 19 '17 at 19:24
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    @KeshavSrinivasan: I think at this point, the short answer is going to be that no, there probably isn't a rule somewhere in some DOJ handbook saying "thou shalt not try to impeach the president even if thou disagreeth with thy bosses". But I can guarantee you that if you're looking for rock-solid evidence of that, you're not going to find it on Politics SE. – tonysdg Jun 19 '17 at 19:27
  • @tonysdg Well, I'd even be satisfied with a general rule of the form "Federal prosecutors are not allowed to bring cases if the Office of Legal Counsel thinks that the Justice Department cannot legally bring such a case." or even a more general rule like "Federal prosecutors are not allowed to act contrary to OLC Memos." – Keshav Srinivasan Jun 19 '17 at 19:31
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Instead of elaborating on Tony's answer I will do the opposite, clarify it.

The president is the head of the Executive branch. That includes the DOJ. As such he is not only immune from prosecution for most crimes we have a law for, but he also has the power to legally fire any member of that branch.

He could fire every single DOJ employee if he saw fit and it would be perfectly legal. He can demand that any investigation, including the Russia one, or any that might involve him personally, be ceased.

Two people have explained that to you now, but the answer you want is "what if they tried to prosecute him anyway," in which case they would be breaking the law and anything after that is conjecture.

Also, to clarify another point, impeachment does not remove a president from office. DJT could be impeached tomorrow and still serve out the rest of his term, just like Clinton did when he was impeached.

  • There are people who disagree with you on whether the President is immune from prosecution, and a federal prosecutor could be one of them. By the way, here's the thing, it might be true that the President has the ability to fire every employee of the Department of Justice. But as a political matter, firing a prosecutor who is investigating and prosecuting you might significantly raise the probability of both impeachment and subsequent conviction in an impeachment trial. And so he might decide not to fire the prosecutor in question. – Keshav Srinivasan Jun 19 '17 at 19:46
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    @KeshavSrinivasan - I realize that. My point is that the DOJ is not allowed to act unilaterally like that. The DOJ must follow the law and the law says that POTUS is immune. That's like asking if I get enough people to sign a petition could I fire my boss. No. It just doesn't work like that. Further, this is not a matter of opinion, so other people "disagreeing" is irrelevant. Those that "disagree" are plain wrong. Some people "disagree" that the earth is round. Facts are facts, buddy. – iwrestledabearonce Jun 19 '17 at 19:52
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    I think opinion might be the wrong word. Judges aren't supposed to make judgements based on their opinions of the law, but rather their interpretation of it. If the law states "President is immune from indictment" no one is going to decide that the true definition of that law is anything other than "President is immune from indictment." – iwrestledabearonce Jun 19 '17 at 20:15
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    This does not provide an answer to the question. To critique or request clarification from an author, leave a comment below their post. - From Review – SleepingGod Jun 19 '17 at 20:36
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    @sleepinggod.. my 4th paragraph is a direct answer to the question. – iwrestledabearonce Jun 19 '17 at 20:40

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