3

As contrasted with a federal-level proceeding

One of the pillars of the 2000 Office of Legal Counsel (OLC) argument to support the shield of a sitting president against federal indictment is the concept that such a proceeding would impose a significant burden on the president. (the 2000 OLC argument invokes presidential "burden" 38 times)

Even the 1974 OLC advocates concluded

The OLC memorandum in particular concluded that the ordinary workings of the criminal process would impose burdens upon a sitting President that would directly and substantially impede the executive branch from performing its constitutionally assigned functions...

So how could a state-level proceeding (criminal or otherwise), be any less burdensome to a sitting president?

And if so, should states be precluded from proceedings against the sitting president (at least on the same "burden" argument)?

(I have specifically chosen to post this to politics as it is not a question of law, but rather the political application of a legal brief - there is no law or directly applicable judicial precedent that applies here)

  • 2
    Wouldn't this essentially be a duplicate of your existing question: politics.stackexchange.com/questions/40862/… ? I suppose it's formally distinct in that you focus here on one specific reason it may be held unconstitutional, rather than inquiring about the constitutionality without regards to particular reasons why. – zibadawa timmy Jul 27 '19 at 17:17
  • @zibadawatimmy I am focused on the differences, if there are any, between the burdens might exist when comparing federal versus state proceedings. IMO, the interference (aka "burdens") that could occur are essentially the same. However, I am open to suggestions to the contrary, hence the inquiry. – BobE Jul 27 '19 at 19:40
  • I think a better question would be "Is the OLC opinion binding on states?" Because if not, then there's no point in even asking this question or your other one (at least not as currently framed). – Bobson Jul 28 '19 at 6:24
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    @JJJ and bobson - what I'm looking for here is NOT whether OLC is binding, but rather if the argument of 'too burdensome' has any distinction between federal and state level proceedings. This burden argument, suggesting that the normal functioning of the presidency would be impaired, is a pillar of the motivation to recommend that Federal proceedings should not be introduced against the president. Does that 'imparement of function' apply to state level proceedings, – BobE Jul 28 '19 at 16:10
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    @Bobson - I'm questioning the validity of the argument put forth by the the OLC - to wit: a federal indictment and prosecution of a sitting president would unduly interfere with presidential duties. Admittedly the OLC seems to be silent on state-level (after all they are only providing guidance to the US DOJ). But if the interference (at federal level) is so significant as to preclude disposition of justice, then I would anticipate a similar level of interference at a state-level. If the US DOJ were convinced of that it would expected US DOJ to intervene to block state-level proceedings. – BobE Jul 29 '19 at 3:12
1

Possibly, but to my knowledge there's no precedent allowing or disallowing prosecution of a sitting US president on the state level. This in contrast to prosecution at the federal level, which is not possible because of an opinion by the Office of Legal Counsel (OLC). While the word opinion may sound subjective, the OLC's task is characterised as follows on its own website:

OLCs core function, pursuant to the Attorney General's delegation, is to provide controlling advice to Executive Branch officials on questions of law that are centrally important to the functioning of the Federal Government. In performing this function, OLC helps the President fulfill his or her constitutional duties to preserve, protect, and defend the Constitution, and to “take Care that the Laws be faithfully executed.” It is thus imperative that the Office's advice be clear, accurate, thoroughly researched, and soundly reasoned. The value of OLC advice depends upon the strength of its analysis.

The OLC opinion that prevents bringing charges against a sitting president on the federal level is entitled A Sitting Presidents Amenability to Indictment and Criminal Prosecution. The 39-page memo starts with:

In 1973, the Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination.1 We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.

On the second page of the memo there's an important footnote saying that the analysis only applies to the federal level (emphasis mine):

Implicit in the Department’s constitutional analysis of this question in 1973 was the assumption that the President would oppose an attempt to subject him to indictment or prosecution. We proceed on the same assumption today and therefore do not inquire whether it would be constitutional to indict or try the President with his consent. The Department’s previous analysis also focused exclusively on federal rather than state prosecution of a sitting President. We proceed on this assumption as well, and thus we do not consider any additional constitutional concerns that may be implicated by state criminal prosecution of a sitting President. See Clinton v Jones, 520 U S 681, 691 (1997) (noting that a state criminal prosecution of a sitting President would raise “ federalism and comity” concerns rather than separation of powers concerns)

  • It would be well, since you mentioned it, to cite the original 1973 OLC Memo [ fas.org/irp/agency/doj/olc/092473.pdf ], titled:" Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office" (emphasis is mine to point out that the scope was Federal). Regardless, what my title question focuses on is what, if any, differences exist between Federal and State indictments that would make a Federal prosecution significantly more burdensome to the president. – BobE Oct 5 '19 at 0:51
  • @BobE so you're more interested in what constitutes the burden and how that compares federally vs. on the state level? – JJ for Transparency and Monica Oct 5 '19 at 0:55
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    Yes, That's what I intended with the question - both memos rely upon the concept that "the duties of the Presidency, however, have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution." hence my question - would a state prosecution be significantly less of a distraction (burden) – BobE Oct 5 '19 at 1:22
  • @BobE okay, that's probably doable by reviewing the OLC opinion and going through each of their considerations and comparing to what extent those apply to a prosecutions in one of the states. Given that I am not that familiar with the US legal system and that it would be rather time consuming, I'm not going to do this (yet). Perhaps there is also less authoritative material on this, maybe an (under)graduate thesis? It's certainly an interesting question. – JJ for Transparency and Monica Oct 5 '19 at 11:50
  • This is a good summary of the federal position, but doesn't really shed light on the heart of the question – K Dog Oct 5 '19 at 13:00
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Yes, it's less burdensome because states have less legal resources than the federal government, and their powers are correspondingly more localized and less sweeping than the analogous federal powers.

Also, the conviction rate of federal courts is higher than state courts.

  • It's a short answer, but I'm not sure how this ought or needs to be any longer. Unless the Q. is assuming as given that there's already a minimum burden that both states and the federal government both exceed -- if so, the Q. should specifically say so. – agc Jul 28 '19 at 16:34
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    Just so we are clear - the 'burden' argument used in the OLC relates to the degree of impairment of the president to perform his presidential functions. Obviously were a president be required to attend and participate in ( for example) a murder trial where he is a named defendant that would impact the president's ability to attend to the normal functioning of the president. In that context, I don't see how the "resources" of a particular state is pertinent. – BobE Jul 28 '19 at 16:56
  • @BobE, It's not about the resources of a particular state relative to some other state, it's about the resources of a state court vs. a federal court. A state murder trial is less dangerous to any powerful and guilty defendant than a federal murder trial would be. – agc Jul 29 '19 at 2:29
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    So are you saying that you believe that a state murder indictment and trial would be less distracting ( interrupting) than a federal crime (say for lying to a FBI agent)? BTW, generic murder is a state-level crime, so you really can't compare the two. – BobE Jul 29 '19 at 3:00
  • @BobE, I'm saying that if one were to stand in the middle of Fifth Avenue and shoot someone, then if that someone happened to be an FBI agent, (i.e. a federal murder), the resulting trial might be a little more distracting than if the victim were, say, a homeless person. – agc Jul 29 '19 at 12:28

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