A scant 24 hours after Donald Trump was declared the winner of the 2024 presidential election, the Department of Justice (DOJ) and special counsel Jack Smith are reportedly discussing how to withdraw the two federal indictments and ongoing criminal prosecutions against Donald Trump, according to multiple news outlets. While the DOJ has made no announcement on the matter, the move by the special counsel is generally thought to be mandated by the department’s longstanding policy, as captured in several Office of Legal Counsel (OLC) memos, that says that a sitting president cannot be indicted.
The department is making a grave mistake, however, in at least two respects: First, the memos, and the policy they represent, are inapplicable to the present moment. Second, the policy itself is mistaken and, in any event, is not a constitutional requirement.
As co-author Richard Painter and I explain in an article we recently published in the University of Southern California Law Review, the case of a previously indicted individual who becomes president in the middle of a criminal proceeding is not at all the same as that of the president who is indicted in the middle of his term.
In the case of a previously indicted individual charged with a federal crime before he became president, there is no concern that the indictment was brought to interfere with the work of the administration. But, in this case, there is a grave concern that a previously indicted individual is using the presidency to shield himself from prosecution for his alleged crimes. Therefore, the DOJ policy is problematic if it suppresses any ongoing, pending legal matters with respect to a candidate when that individual wins the presidency.
Whether the DOJ policy is right or wrong, the OLC cannot render it constitutionally binding, since such opinions are only advisory to the department. They are not laws and they do not impose legal obligations on anyone to adhere to them.
Even if one accepts the policy, there are several other concerns with applying it to the instant case.
It is widely anticipated that, were Jack Smith to continue to prosecute the two federal cases until Inauguration Day on Jan. 20, 2025, Donald Trump would fire, or ask his new attorney general to fire, Smith immediately upon taking office. However, as Painter and I have argued elsewhere, this would arguably constitute obstruction of justice under federal law, despite broad presidential power to remove members of the executive branch under the “unitary executive” conception of the president’s Article II authority.
If the sole purpose of the removal of a federal employee is to immunize the president against investigations into his own wrongdoing, that is a misuse of presidential authority, and one that is unrelated to the protections that the office of the presidency is meant to afford.
If the department were to withdraw the cases prior to Inauguration Day, the DOJ would be rescuing Trump from his own obstruction. From the standpoint of the rule of law, the DOJ should continue with the prosecutions and let Trump be the one to pull the plug on special counsel. That way, Trump would have to commit a crime to fire Jack Smith — a crime that could potentially be prosecuted once Trump leaves office in 2028.
In addition, unlike the investigation of former President Bill Clinton, which took place under a now-defunct “Independent Counsel Law” that protected Ken Starr from removal, Jack Smith was appointed by Attorney General Merrick Garland and formally serves at the pleasure of the president. If Trump does fire Smith, the obstruction would be a personal capacity offense since the purpose of it would be to cover up and avoid accountability for criminal activity. Surely avoiding accountability for the commission of a crime is the quintessential personal capacity act. The Supreme Court has failed to define what counts as an official capacity act, and thus, the matter is currently left primarily to lower court judges to decide.
By preempting firing Smith and ridding Trump of the risk of prosecution, the DOJ would be committing three critical mistakes: 1) it will have assisted Trump in his intended obstruction of justice without ever requiring Trump to take a political or legal risk; 2) it will have set an important precedent confirming that an already indicted individual falls under the (mistaken) DOJ policy regarding indicting a sitting president; and, 3) it will have degraded the DOJ’s mission by determining prosecutorial decisions in accordance with political, rather than legal, imperatives.
These are all aspects of the decision that fundamentally damage the rule of law in ways the department and the country will never overcome.
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy, and the faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.
