“Is it possible to get rid of the DOJ policy preventing prosecution of a sitting president?”

— Teresa R.

Hi Teresa,                    

Yes, it is. But I wouldn’t expect that to happen anytime soon, and the Supreme Court still stands in the way of such prosecutions in any event.

Let’s first understand where the policy came from: opinions by the Justice Department’s Office of Legal Counsel, which serves as the executive branch’s legal adviser. OLC issued opinions against indicting and prosecuting sitting presidents in 1973 (during Richard Nixon’s presidency) and 2000 (during Bill Clinton’s presidency).

The fact that OLC considered the issue again in 2000, when it reaffirmed the 1973 opinion, shows that it could’ve reached a different conclusion than it did in 1973. So, it could reach a different conclusion in the future.

But the Supreme Court is an obstacle to such prosecutions for two related reasons.

First, while last year’s immunity ruling in Donald Trump’s favor dealt with former presidents, its rationale could apply with at least as much force in favor of sitting presidents. Therefore, because OLC would examine any relevant Supreme Court precedents when reviewing the current state of the law, the Trump immunity ruling (however unpersuasive it is) could be a factor in keeping the policy.

Second, even if a new OLC opinion repudiates its prior view, any attempt to prosecute a sitting president would be challenged in court, up to the Supreme Court if needed. In that scenario, the court could officially grant at least as much protection for sitting presidents as it did for former presidents; the court could even bar the prosecution of sitting presidents completely.

So if the goal is to prosecute a sitting president, that could require not only a new DOJ policy but also a new Supreme Court majority.

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