If I had a dime for every time a cable news pundit’s used the 1973 memo sent by the OLC (Office of Legal Counsel) as the excuse for why a shamelessly corrupt president like Donald Trump can’t be indicted, I’d have a lot of dimes. Even more, if you add the amount of attorneys, including Special Counsel Mueller’s deputy, Andrew Weissman, who claimed they used the memo as the sole reason for why charging Trump wasn’t directly recommended in Mueller’s Report.
Yet, in spite of everything we’ve seen, in spite of all the crimes against The Constitution committed by this president, so far, he’s been proven right. He is above the law. Thanks, solely, to the above mentioned memo. Yet, the memo, itself, isn’t even a law. Nor does it appear to be an official DOJ mandate. In fact, no one seems to be sure what is. One things for sure, whatever it is, it certainly appears to be a paper tiger. Fake news. A faux premise, given more weight/credence over the years every time it’s mentioned in print.
As Harvard’s SCOTUS expert Walter Dellinger points out in his brilliant 2018 article, Indicting a President Is Not Foreclosed, the memo, sent by OLC head, Robert Dixon, is a procedural anomaly, rife with inconsistencies. Not only was the memo not addressed to anyone specific, or refer to any specific situation, and most likely not even made public, it wasn’t even mentioned by any of the attorneys during the Watergate hearings. Even though those hearings took place just two weeks after the memo was written. Nor does The Constitution ever mention anything remotely resembling conferring immunity upon the president.
Add to that the small fact that Nixon, himself, was named as an unindicted co-conspirator, a charge upheld by a federal judge and defended by United States attorneys, and there’s no basis not to indict this president. Or any other. Yet, Bill Barr’s epically inappropriate and misleading framing notwithstanding, the reason a good portion of the American People think president Trump was innocent is due in no small part to the fact, after years of investigating, the special counsel did not recommend an indictment.
Moments after Trump pardoned confessed traitor, Gen. Mike Flynn, Joe Scarborough exclaimed, “Why can’t a president be indicted?” Well, why can’t he? Why do we keep referring to a memorandum as if it’s the final word? It’s just an opinion. It wasn’t written by the founding fathers, it’s not a Constitutional amendment, it’s not included in any historical document. At best, it’s just a well-worded suggestion. A suggestion offered up by one guy in 1973 - a time when the world was unrecognizable compared to today.
How different were the times back then? Republicans actually chose country over party. Yet, here we are, fifty years later, and this mysteriously vague, unsubstantiated memo is still being referred to and revered by lawyers, government officials, and talking heads on both sides as the End All, Be All in Constitutional Guidance. Seriously, WTF is wrong with us? You’d think if this was such an important subject, which it is, there’d at least be congressional hearings debating its merits/legality. Instead, we take it as gospel.
We appear to have the same dilemma re: Trump’s desperate quest to pardon himself. A Constitutional crisis is most likely just around the corner with this president, yet, thanks to the fact there’s nothing in our most sacred of documents specifically addressing this matter, either, we’re left to once again twist in the wind as we try to interpret what our forefathers meant.
Like crack addicts hoping to find that last bit of rock in the rug, here we sit. A confused, lost nation, desperately searching for anything resembling an official document in the hopes it will guide us through these uncharted waters. No matter how flimsy, flawed or minuscule the 'rock’ might be, we’ll take it. “If it was written by a lawyer, has a lot of pages, and cites a lot of examples, it must be true.” If the greatest country in the world basing some of its most important/Democracy-defining decisions on the equivalent of laws/policies written on the back of a cocktail napkin weren’t so tragic, it’d be funny.
What’s not funny is a criminal president laying waste to our longstanding norms and policies like a prehistoric monster trashing the countryside. As we scramble about trying to stop the thing with our tiny bullets, it crushes everything in sight.
One can’t help but wonder what would happen if a current, sitting DOJ attorney simply sat down and wrote another memo stating a sitting president can be indicted? More importantly, why hasn’t one done so, or at least challenged it, in the nearly fifty years since the original? Why couldn’t Mueller have indicted Trump and, when asked about the conflict that might arise given the 1973 memo, said, “I’m basing my recommendation on the actual law. Or, the lack thereof.”
But, who are we kidding? From what we’ve seen the past four-plus years, even if Congress were to put fourth an amendment updating the inexplicably absent, undefined guidelines relating to such an important part of our Democracy, our spineless Republican leaders wouldn’t even put it up for a vote.
As we now know, a Democracy isn’t good at preparing for something that hasn’t happened yet. Be it Watergate, 9/11, or a Russian asset POTUS. Now that we’ve experienced, firsthand, the damage an unhinged, unchallenged president can do to the fabric of our Democracy, including scaring the very people investigating him into not investigating him too much, perhaps our new president, along with a surprisingly repentant, suddenly patriotic Congress, will make it a priority to update our Constitution to back up the obviously inaccurate claim, “No one is above the Law,” with muscle. However, given our obvious propensity for ignoring sections of our Constitution in dire need of repair, i.e. the obsolete mess that is the Electoral College, I wouldn’t hold my breath.