Why hasn't anyone challenged the OLC memo?

[mac56]

The one that claims that a sitting president cannot be indicted? If I understand it correctly, it was a memo written 46 years ago, during Watergate. It doesn't seem to be in the Constitution, and to my knowledge was never codified as law. It was one lawyer's opinion, written in a memo, like he was reminding people about an office potluck.

Why is no one questioning this? What am I missing here?

[rampartc]

1. the conclusion of the memo is just wrong

but everyone who is in a position to change it is vested in its permanence.

[LiberalFighter]

23. That is because their boss is the President.

[rampartc]

25. the memo could be superceeded by legislation

but the president would have to sign it.

some bold prosecutor could indict the president as a test case, this latest mlm fraud lawsuit seems to indicate a theft by fraud. would the courts uphold the indictment?

[The Velveteen Ocelot]

26. It raises a constitutional question that would have to be decided

by the Supreme Court. Any legislation would be challenged on constitutional grounds and would inevitably end up in court.

[rampartc]

28. in courts where increasing majorities of judges are federalist society

i guarantee that bret kananaugh can see himself as a founding father, with the original intent that article 2 makes the president a god emperor whose actions are unchecked and unbalanced by mere mortals …..

.

[cureautismnow]

2. I agree 100%.

I think Obama should have gotten Holder and the DOJ to throw it out on the trash heap of history. Or at least modify it to ensure that no one (including the POTUS) is above the law. The next Democratic POTUS can and should fix this wrong.

[global1]

3. I Asked The Same Question The Other Day......

Here is a link to my OP and the responses please check it out : https://www.democraticunderground.com/100212293212

In my opinion - it's worth the shot by the Dems to challenge the OLC Memo. Even if the most that happens is that more American People get exposed to it and realize how absurd it is that it can mean that a treasonous criminal can be president and can remain above the law.

Perhaps if more Americans can get incensed by it and challenge it - something can be done to negate it.

[Firestorm49]

7. Couldn't agree more.

[Baitball Blogger]

4. You're not missing anything at all.

Living in a suburb in Florida I can tell you that no one follows the rule of law, where mob rule takes precedent. You have Republicans who have no desire to have Trump impeached, and Democrats who haven't realized that it's time to think outside the box. They won't challenge the OLC until they have a majority in the House and the Senate, and only if the public makes it a priority.

And in the changes that take place at the Attorney General and the FBI is to put diversity hires in decision-making positions and break the misnomer that Republicans are the party of law and order.

[Igel]

5. Who could challenge it?

If you're a federal prosecutor, your boss is the president.

The OLC issued an opinion based on presidential authority.

The OLC opinion is binding because it's basically a boss telling his employees what they can and cannot do. Even if the president didn't write it, it points to the basic, fundamental problem.

If you're three layers down in the Facebook hierarchy from Zuckerberg, you're not going to conduct a large-scale investigation into Zuckerberg and, in the name of Zuckerberg, institute HR proceedings against Zuckerberg using Zuckerberg's authority.

In other words, you have to remember your basic civics. There are three branches of government. The legislature's role is to legislate; it has oversight *for the purpose of developing legislation." It also has a few other roles--treaties, advising and consenting, being the organ that polices the other two. The executive branch is all enforcement (and international relations). Judicial resolves charges, either between branches or when the executive branch enforces some law on citizens.

The DOJ is "enforcement." It's executive. And all executive authority, the constitution says, is invested in the president.

I guess Congress could set up a fourth branch of government to enforce legislation. Not sure how that would be constitutional. Then again, it's told the executive branch to write de facto laws, allowed the executive branch to waive entire sections of legislation, and to establish executive-branch internal courts.

[Firestorm49]

9. Thanks for bringing this into context.

[MarvinGardens]

13. Independent agencies are an example of such a fourth branch.

For example, the FCC, or the Federal Reserve System. The now defunct Independent Counsel is another example. Do these agencies answer to the legislative or executive power?

The easiest solution to this problem is to revive the Independent Counsel in some form.

[Maru Kitteh]

32. A State Attorney General

https://www.rawstory.com/2019/07/bill-barrs-doj-wont-indict-trump-while-hes-in-office-but-27-democratic-ags-can-ex-obama-lawyer/

“Last night a former Watergate assistant special prosecutor, Jill Wine-Banks, made a point about indicting a president that had not occurred to me,” O’Donnell noted, introducing a clip.

“The evidence of all the elements of the crime has been established and were he not protected by the Office of Legal Counsel — an opinion by the way that I think is flawed constitutionally and legally — I think it’s incorrect. It’s time for someone to challenge it or change it. It may take a state prosecutor indicting the president to take it to the Supreme Court for a decision and whether you can cover up your own crime and get away with it,” she noted.

[elleng]

33. 'Standing' might be the biggest problem, in challenging it.

[awesomerwb1]

6. Great question.

I wish someone in leadership would ask it. If anyone has, I missed it.

[Celerity]

8. Can the President Be Indicted? A Long-Hidden Legal Memo Says Yes

https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html

WASHINGTON — A newfound memo from Kenneth W. Starr’s independent counsel investigation into President Bill Clinton sheds fresh light on a constitutional puzzle that is taking on mounting significance amid the Trump-Russia inquiry: Can a sitting president be indicted?

The 56-page memo, locked in the National Archives for nearly two decades and obtained by The New York Times under the Freedom of Information Act, amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,” the Starr office memo concludes. “In this country, no one, even President Clinton, is above the law.”

Mr. Starr assigned Ronald Rotunda, a prominent conservative professor of constitutional law and ethics whom Mr. Starr hired as a consultant on his legal team, to write the memo in spring 1998 after deputies advised him that they had gathered enough evidence to ask a grand jury to indict Mr. Clinton, the memo shows.

snip

[Firestorm49]

11. Thank you.

[Celerity]

12. also (and yes it will go to the SCOTUS) state charges can be levied without the separation of powers

doctrine coming into play, as a state DOJ is not under the purview of the US DOJ.

I think it is madness that under the current legal construction a sitting POTUS is literally above the law.

Rump is setting an incredibly dangerous precedent for the future abuse, regardless of which Party holds the POTUS.

There are so many constitutional weaknesses/exploits that are upcoming or already here, ones that I fear will lead to a breakup of the union within the next 20, 25 or so years. The damn-near imperial level of powers being congealed over the past 50 years or so into the POTUS, the Senate (30% of the population will control 70% of the seats by the mid 2030's at current trends), the EC allowing a string of popular vote winners to be possibly be defeated, raw political gerrymandering being now ok'd by the SCOTUS, the SCOTUS itself being artificially brought to a possible 7-2 or 8-1 hard RW composition (via Senate Rethugs refusing to ever again fill a Democratic POTUS's nominations to the Court), systemic RW voter suppression at all levels, census manipulation (thus affecting the EC and the makeup of the US House) etc etc etc.

It is a long, slow, grinding shitshow to tyranny, loss of the rule of law as a controlling concept, the artificial RW/centrist slant of the House due to gerrymandering, and a nation held captive via an evermore radical minority.

[NewJeffCT]

21. silly

that only applies to Democratic presidents.

IOKIYAR

[Hotler]

10. There needs to be a referendum on the national ballot in 2020.

Any American President "Can Be" indicted for crimes during their term.

[onenote]

17. There is no such thing as a "referendum" on the national ballot.

In fact, there is no such thing as a "national ballot."

[The Velveteen Ocelot]

27. There is no such thing as a referendum in federal elections.

There is also no such thing as a national ballot.

[MineralMan]

29. There is no mechanism for such a thing to happen.

We do not vote on such measures nationally. It would require a Constitutional Amendment, and such an amendment would be impossible to enact and get ratified.

I recommend a re-reading of the Constitution.

[Hotler]

30. Are you scolding me? nt

[MineralMan]

31. Nope. Just providing information,

along with a suggestion.

[librechik]

14. We didn't have a situation like this really since Nixon, no reason to think about it

Impeaching Clinton was just an attempt to ruin his reputation for as long as he was in office, not removing him (successful, popular president who most people felt was being unfairly targeted over something not relevant to his performance as president.)

KKKabuki. This time monkeys are swinging from the chandeliers and shitting on the Constitution. Popular representaion has been connived away from the people and given to billionaire gangsters. We are not prepared for this, obviously. And their demonic lawyers know how to use the antiquated rules against us (Hillary gets 3..5 million MORE votes and the crooked RFascist wins anyway?)

Why can't we shut down the baby jails?

Is this the will of the people, or are we already imprisoned in a barely visible gulag?

[BlueIdaho]

15. Regardless of who is in the White House

It’s time to claw back the powers of the ever expanding executive branch. This OLC opinion is just one example.

[hlthe2b]

16. It can only be challenged by a prosecutor indicting and under current AG that is not going to happen

on the Federal level. A new AG under a new administration could, of course (and should) ask for OLC to reconsider. That would still only be an internal OPINION that would not totally answer the question as to its constitutionality, which could only come from court review.

However, (and in the absence of a new administration coming in), the best chance would come from a State AG filing charges. That indictment would then result in litigation that would ultimately end up at SCOTUS who would have to rule on the legality of indicting a sitting President.

Of course, if this happened after he left office, it would be moot in terms of the "rule" being reviewed.

[onenote]

18. And let's be careful about what we wish for

Do we really want the state attorney general (or even some local yokel prosecutor) bringing criminal charges against a Democratic president? Because if it was held that a sitting president can be indicted, then you can bet the ranch that will happen.

[hlthe2b]

19. The precedence "genie" is already out of that bottle, given civil suits allowed to advance

against Clinton. Whether or not SCOTUS would draw the line on criminal prosecution is not clear at all. But, yes, it could be as much a tool for abuse as Citizen's United decision was a devastating tool to "buy" elections.

[jcgoldie]

20. Seems like a bridge too far at this point

Not to be a defeatist but with Trump in complete denial about the most basic and obvious facts in the report, and the media swallowing that narrative... what do you think the reaction would be if they pushed changing what Mueller has spent weeks telling everyone is established justice department procedure?

[SweetieD]

22. Because Mueller and his people were never interested in really charging Trump.

.

[PRETZEL]

24. I don't know the OLC opinion very well,

and I've seen many, much more brighter individuals share their opinions (many of whom are attorneys, unlike me) but it seems the basis for the whole opinion is that it is in reference to "sitting" President and indictable crimes. I get that, but what still bothers me is the definitions.

We all know (as was the premise in Jones v. Clinton) that the alleged acts happened before (and the work before is the word I'm stuck on) they became President.

I guess my question ultimately is where in the OLC opinion is that prior misdeeds are shielded by the opinion.