You Have Some of the Finest Minds in the Country ..

elicit okay the four issues are this is
it treason no no one issue you can you
solicit Ukraine is Ukraine is an ally
can you cook is it bribery no the can
you stretch it doesn’t apply to solicit
political benefited foreign entity is it
is it extortion no there’s no quid pro
quo last one your point yes thank you
okay is it a violation of the camp
finance campaign finance law the Justice
Department has said through OLC the
answer is no now you can solicit a
foreign government for political
advantage you believe that that’s
anybody’s read on that statute stop
asking for an investigation in in the
words of the Justice Department OLC memo
is not a thing of value therefore it is
not an illegal foreign campaign
contribution period end of story now you
know you may not like that you may not
agree with it that’s fine people
reasonable people can disagree but you
have some of the finest minds in the
country at the at the Office of Legal
Counsel making a judgment about that but
it’s not asking just for an
investigation here’s how we know they
already investigated it you know that
and I know that frankly they’ve
investigated it twice right so Shokan is
looking at it that’s why this forest
about Biden is so silly
he had this corrupt guy looking at his
sons business when new was sleeping on
it he gets rid of him they put in loot
Senko who’s a good prosecutor who turns
the screws up on it eventually says
there’s nothing here closes it then he
talks to Rudy Giuliani and reopens it
that’s not new
that’s going back to something you
already well investigate that the
president made clear all right he wants
a certain outcome that’s very convenient
to be able to say that and what was X
and what was the result of all that any
untoward investigation lead to anything
that was we don’t know it was harmful to
we don’t know who the vice president we
don’t know yet other than the fact that
the Democrats have now made this a big
issue the only end result of which will
be the president manual sink this
they’ll sink the vice president’s camp
ad I won’t give you that the reasoning
is always strong that’s why I love
having you on the show

Is Mueller Bound by OLC’s Memos on Presidential Immunity?

The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment. By contrast, two different memos—authored by the Office of Special Counselinvestigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion.

That these different offices have repeatedly disagreed on this central question isn’t really all that surprising. They have different institutional roles, different missions, and different cultures, all of which might impact their respective approaches to the issue. For present purposes, however, the most important practical question is whether the current special counsel, Robert Mueller, is free to exercise his own independent judgment on the immunity issue, or whether he is instead bound to follow OLC’s take. If it’s the latter, then those two OLC memos would together constitute the single greatest shield protecting President Trump from prosecution: No matter how strong the evidence against him may become, if OLC’s memos are binding then the President simply cannot be indicted until after he leaves office—by which point, it bears noting, the statute of limitations for any relevant conduct may well have expired.

.. To my mind, there are at least three such points here. First and foremost, the justifications underlying the general practice of treating OLC opinions as binding on executive branch officials do not necessarily apply to the Office of Special Counsel, which is supposed to be insulated from the influence of political appointees when assessing the president’s exposure to criminal liability.  Second, the formal regulations setting out the special counsel’s authority do not clearly compel him to follow OLC’s lead. And third, historical practice suggests that he need not do so.

.. As Nelson Lund explains, that practice reflects the reality that “OLC does not serve as the mouthpiece for the Solicitor General or the litigating divisions” of the Department of Justice, which “will often defend” or advance a proposition in court “even if OLC would have advised against it.”  When the ball is in the litigating divisions’ court, in other words, OLC typically defers to their authority to articulate the position of the United States.  And when the litigation at issue is a potential criminal prosecution of the president of the United States, the relevant “litigating division” is the Office of Special Counsel.

Yet, in an apparent deviation from its articulated best practices, OLC issued the presidential-immunity memos in the thick of two separate pending cases. Indeed, the first memo actually contradicted the litigating position that Special Counsel Jaworski soon articulated on behalf of the United States to the Supreme Court. And the second opinion was prepared as the Office of Independent Counsel was considering a draft indictment of President Clinton, in a process that had also already generated litigation. The fact that OLC may have deviated from its ordinary best practices to issue these memos—thereby perhaps usurping the special counsels’ rightful authority to articulate the government’s litigating position—may be yet another reason not to treat the memos as binding. [Editor’s Note: An earlier version of this post suggested that the Special Counsel’s Reply Brief in United States v. Nixon was filed in July of 1973. The brief was filed in July of 1974.]