I understand that the Justice Department can’t charge a sitting president with a crime, but what could they actually do if a special counsel like Mueller found that it seemed very likely the president committed a crime? Would they send the evidence to Congress, or would it just sit around in a cabinet forever?
What could the Justice Department actually do with the Special Counsel’s report if it said the president likely committed a crime?
If the crimes were serious enough, they could defer prosecutorial actions (defer all aspects of prosecution, including an actual official criminal investigation and charges, if any were warranted) until the President was out of office, which would set up a scenario of the President trying to pardon himself, or possibly resigning in a Nixonian deal where the resignation is paired with the subsequent office-holder issuing a pardon, which might set up yet more investigations.
From what Mueller has said, and contrary to what Barr has offered, the entire structure of the Mueller report was a road map for Congress to use if they wanted to push forward with impeachment proceedings.
In that regard, what the Justice Department could do is offer the full, unredacted (or as much as can be not redacted) report to Congress, and offer to make members available for any formal impeachment proceedings to provide testimony.
According to the statement made by Mueller today, they cannot have a sealed indictment. All the examples of Nixon are moot because all the legal theories about what is constitutional have not been tested since Nixon resigned. And he was subsequently pardoned by Ford. The only reason Nixon was in a position to make a deal with Ford was because the VP slot was vacant and Nixon had the choice of who to nominate for it. In general, a President would not have such an opportunity to make a deal. May 29, 2019 at 23:01
1@grovkin: In that case, the statute of limitations would be tolled until the President leaves office in either 2020 or 2024. He could be indicted and prosecuted at that time. However, this would set up the political spectacle of the ex-President being arrested at or shortly after his successor's inauguration, which I imagine the DoJ would prefer to avoid.– KevinMay 30, 2019 at 0:01
@grovkin - I'm not stating they would have a sealed indictment ready to go. I'm stating they would go through the process of a formal criminal investigation on the former president once that person left office. Ignore if there are some now-deleted comments between you and Kevin, and it was not my answer you were responding to. The "pardon" I refer to would be of the blank-check variety, for anything and everything done (as was issued to Nixon by Ford, and to the Iran Contra perpetrators by Bush the Senior, before any convictions or trials). May 30, 2019 at 17:31
1I see. Maybe you could add it to the answer. I didn't get that from the reading of it. May 30, 2019 at 17:58
@grovkin - That's very helpful feedback. I made some edits, let me know if it still seems muddled or not. May 30, 2019 at 20:16
Robert Mueller finally made a statement about his report today, 5/29/19. The statement was very short (~10 mins). And it was so universally covered, that I won't try to link to it.
According to the statement made by Robert Mueller today, special counsel cannot indict a sitting President nor can it produce a sealed indictment (an indictment secretly held until a future date with the purpose of waiting out a temporary immunity while not running up against a statute of limitations).
Robert Mueller stated that this DOJ guidance is due to the fact that indicting a sitting President would be unconstitutional. Because this question has never been taken up by SCOTUS, this is currently the most authoritative answer on the subject.
Referring it to Congress is the only course of action available to a special counsel.
A point which maybe worth noting is that the special counsel Mueller's office did not make a Congressional referral. While Ken Starr's report was referred to Congress. Obviously people will argue that this is due to them having different offices and responsibilities (Starr was an Independent Counsel while Mueller was a Special Counsel). But Mueller did have the option of making a referral.
A number of people have suggested that the language which Mueller used suggested that he was making a referral. But that is simply not the case.
He made a number of prosecution referrals during the course of the investigation. So making referrals outside of his office was within the scope of his powers.
He could have simply made the referral if he thought it was appropriate. He did not.
2BTW, what Mueller should have said was ' a group of lawyers at DOJ opined that indictment of a sitting president would be unconstitutional' and I am not the lawyer to challenge that opinion, which would allow the judges to establish what is unconstitutional. May 30, 2019 at 1:02
@BobE He clearly did not want to editorialize. Also, it's more than merely a "group of lawyers at DOJ." It's the legally accepted standard of the DOJ. To suggest it would be up to a court to make this decision would imply that a court should be making this decision. And a court only makes decisions when there is an existing case before the court. Such a suggestion could be interpreted that Mueller thought there should be a case before the court. And it almost certainly would be interpreted this way by anyone wishing to stretch it in that direction. May 30, 2019 at 1:15
u said "To suggest it would be up to a court to make this decision would imply that a court should be making this decision." The decision on constitutionality is made by the courts, not by the OLC. May 30, 2019 at 2:34
@BobE courts opine on constitutionality when there is lack of clarity and a case which turns on the point which needs clarification is presented to a court. If there is no lack of clarity or no challenge exists, the current practice stands as definitive. May 30, 2019 at 2:47
1Well you and I will just have to disagree on whether courts opine or declare on issues of constitutionality. My point is only that the proper body to sit in judgement on constitutionality is judiciary. The OLC memo is guidance for the DOJ, it has no force of law on it's own, as contrasted with a Court order, which has the force of law. Recommend reading the OLC memo that concludes that prosecution would "unduly interfere with the ability of the executive branch " to perform it's duties. May 30, 2019 at 3:10