Just 24 hours after Donald Trump was declared the winner of the 2024 presidential election, the Department of Justice (DOJ) and Special Counsel Jack Smith announced two federal indictments against Donald Trump and an ongoing They are reportedly discussing how to drop the criminal charges. multiple news outlets. Although the Justice Department has not made any announcements on the matter, the special counsel's actions are generally mandated by long-standing Justice Department policy, as documented by multiple Office of the General Counsel (OLC) records. It is thought that there is. memo, This means that a sitting president cannot be prosecuted.
However, the department has made serious mistakes on at least two counts. First, the memo and the policies it describes are not applicable at this time. Second, this policy itself is wrong and is not a constitutional requirement in any case.
Co-author Richard Painter and I explain: article We recently published in the University of Southern California Law Review that the case for a previously indicted person who becomes president in the middle of a criminal proceeding is not quite the same as the case for a president who is indicted midway through his term. .
For those who were indicted for federal crimes before taking office, there is no concern that they were prosecuted to obstruct the administration's operations. However, there are serious concerns that a previously indicted individual in this case is using the presidency to avoid prosecution for his own alleged crimes. Therefore, it would be problematic if the Department of Justice's policy suppressed ongoing and pending legal issues regarding a candidate if he or she were elected president.
Regardless of whether the Department of Justice's policy is right or wrong, the OLC cannot give such an opinion constitutional binding because it is only an advisory to the department. They are not laws and there is no legal obligation on anyone to comply with them.
Even if we accept this policy, there are several other concerns when applying it to this case.
If Jack Smith continues to prosecute the two federal cases until the presidential inauguration on January 20, 2025, Donald Trump will either fire Smith immediately after taking office or ask the new attorney general to do so. It is widely expected that this will happen. But as Painter and I discussed, elsewherethis would probably be something like obstruction of justice Despite the president's broad authority to remove members of the executive branch under the “single executive branch” concept of the president's Article II powers, it applies under federal law.
If the sole purpose of removing a federal official is to immunize the president from investigation into his own wrongdoing, it is an abuse of presidential power and has no bearing on the protections the executive office should provide.
If the Justice Department drops the case before Inauguration Day, it would save President Trump from sabotaging himself. From a rule of law standpoint, the Justice Department should proceed with the prosecution and leave President Trump to serve as special counsel. Trump would then have to commit a crime to remove Jack Smith from office, a crime that could be prosecuted when Trump leaves office in 2028.
Furthermore, unlike the investigation into former President Bill Clinton, it was conducted under a now-defunct “law.”independent attorney law” After protecting Ken Starr from removal, Jack Smith was appointed by Attorney General Merrick Garland and formally sworn in at the president's will. If Trump were to fire Smith, his obstruction would be a personal capacity violation because his purpose was to cover up criminal conduct and avoid responsibility. Indeed, avoiding responsibility for the commission of a crime is a typical act of individual capacity. The Supreme Court has not been able to define what constitutes an act in an official capacity, so the issue is currently left largely to lower court judges.
By preemptively firing Mr. Smith and eliminating the risk of prosecution against Mr. Trump, the Justice Department would be making three serious mistakes. 1) It would have supported Mr. Trump's intended obstruction of justice without putting him at any political or legal risk. 2) It would set an important precedent, confirming that those who have already been indicted fall under the Justice Department's (incorrect) policy regarding indicting sitting presidents. 3) It diminishes the mission of the Department of Justice by determining prosecutorial decisions according to political rather than legal imperatives.
These are all aspects of a decision that fundamentally undermines the rule of law in ways that the Department of Justice and the country will never be able to overcome.
Claire Finkelstein is the Algernon Biddle Professor of Law and Philosophy and a professor in the Center for Ethics and the Rule of Law at the University of Pennsylvania.
