The big problem with comparing Trump to Nixon

Donald Trump may look a lot like Richard Nixon right now. But there is one glaring difference between these two men’s presidencies: Fox News.

Trump and Nixon are similar in a lot of ways: they both faced major FBI investigations, were accused of obstructing justice, lashed out at the media, and oozed raw sexual charisma. Some pundits look at those similarities and assert that, like Nixon, Trump will also face impeachment. But Nixon never had Fox News. As trust in mainstream media has collapsed over the past 40 years, the amount of conservative media has exploded. And sources like Fox News have spent months casting doubt on the FBI and the Mueller special investigation. Without a uniting narrative in the media, it’s unlikely Trump will face impeachment or that Republicans in Congress will be the ones to hold the president accountable for his actions, regardless of what Mueller ultimately finds.

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.]

Why Mueller’s final move could be a grand conspiracy case

In 1988, senior members of Reagan’s administration, including Lt. Col. Oliver North, were charged with conspiracy to defraud the United States over their alleged roles in illegally selling arms to Iran and passing the proceeds to rebels in Nicaragua.

The affair was investigated by Congress and independent counsel Lawrence Walsh. By the time it was over, 14 people were criminally charged and 11 were convicted — although all 11 either had their convictions overturned or received pardons from Reagan’s successor, George H. W. Bush.

Walsh later complained bitterly that the Reagan and Bush administrations stymied his investigation, including through those pardons, which were pushed hard by Bush’s then-attorney general, William Barr. Barr later recalled: “I favored the broadest pardon authority.” Perhaps not  coincidentally, Barr has now been called back to the DOJ by Trump to oversee the final stages of the Mueller investigation.

.. Renato Mariotti, a former prosecutor and close Mueller-watcher, argues that the special prosecutor is unlikely to roll out a grand conspiracy — for the simple reason that it would be extremely difficult to prove beyond a reasonable doubt.

After all, even behavior that appears to be a clumsy attempt at coordination might fall short of serving as evidence of conspiracy: Recall when Trump famously asked Russia to hack Hillary’s emails in the middle of the campaign.
By making that call during a press conference, Trump actually made it harder to prove in court that he was somehow intentionally conspiring with Russians in the hacking of her computer, which took place later that same day.
“I think most prosecutors would be reluctant to charge that, because he could say it was said in jest,” said McQuade.

Trump’s biggest nightmare isn’t Mueller

As accomplished and respected as Mueller is, the SDNY has important structural advantages. While Mueller is limited by his appointment to investigating coordination between Russia and the Trump campaign (and matters that “arise directly” from such coordination), the SDNY has no substantive constraints and can go wherever the evidence leads.
.. Mueller faces political pressure from Trump and the Department of Justice to finish his investigation; the SDNY isn’t going anywhere and can take whatever time it needs. The SDNY is also not subject to the special counsel regulations, which require attorney general approval for major prosecutorial decisions and through which Mueller ultimately must filter his findings.
And, unlike Mueller, the SDNY cannot be fired or defunded; sure, Trump could fire the US attorney for the SDNY, but there will still be 150-plus apolitical career prosecutors ready to carry on.