The DOJ is relying on a 1973 memo written during the Nixon administration on whether a president can be indicted. Rachel Maddow asks for analysis - by the people who were there.
February 22, 2019

Rachel Maddow definitely lived up to the hype last night. You don't have to have listened to her incredibly educational and relevant podcast, "Bagman" to understand last night's show, but if you have, it was that much more delicious. (If you haven't listened to "Bagman," run, don't walk.) As usual, she elegantly tied history to the present, which every astute teacher and journalist should do. In this case, under scrutiny was the long-held precedent upon which the Department of Justice has relied — that a sitting president cannot be indicted (or at least, that it is a knotty question) — and it was determined shaky at best, 100% wrong at worst.

When the Nixon/Agnew shenanigans were a-brewin', the Office of Legal Counsel's Robert Dixon wrote a memo attempting to settle the question of whether or not a president can be indicted. But the purpose of that memo was actually two-fold: to convince Nixon that he was safe from indictment, and that the vice president, Agnew was not (so as to pressure Agnew to resign.) Maddow had interviewed J.T. Smith, who was in the OLC at the time Dixon wrote that memo, who said about it:

...its purpose was to allow indictment and removal of Agnew and not to serve as the 'last word' on the indictability of a president. It would be timely and appropriate for the Justice Department and Robert Mueller to reconsider the shaky policy regarding the indictability of a sitting president first formulated 45 years ago. The durability of this opinion is curious.

"The durability of this opinion is curious."

Isn't it, though?

*channeling Yentl* Mueller, can you hear me?

Then, Maddow brought in Wallter Dellinger to interview. He was the head of the OLC and acting Solicitor General under President Clinton. Not only was Dellinger in complete agreement with J.T. Smith about the viability (or lack thereof) of that policy, he connected the light sentence Agnew received after he was driven from office with his campaign to seek out Saudi help in spreading anti-Semitism in the United States.

"What's that about an Agnew-Saudi anti-Semitism campaign in the U.S.?" you ask? That'll be my next post, don't worry.

Transcript of Dellinger interview below:

MADDOW: Joining us now is Walter Dellinger. He served our country as head of the Office of Legal Counsel as well as Acting Solicitor General under President Clinton. Professor Dellinger, thank you so much for being here with us tonight.

DELLINGER: You are welcome.

MADDOW: So it's accepted as common wisdom in the news business and I think in general right now that the president cannot face indictment because of Justice Department policy that precludes that. As someone who used to run the office that creates that kind of policy at the Justice Department, how solid do you see that policy as being?

DELLINGER: You know, I don't think it's at all solid. I don't think you can make a categorical judgment of that kind. And you've just, you know, added to the notion of how shaky that policy is. Your terrific podcast "Bagman" is the gift that keeps on giving. The '73 memo, Robert Dixon was a distinguished lawyer but it's always been seen by me at least as a really shoddy piece of work that doesn't explain why, when there's nothing in the Constitution, you can have a categorical rule against even indicting a president. Admittedly, you've got to postpone the trial proceedings while he or she is serving. But more to the point, Rachel, that memo was essentially repudiated nine months later. That September '73 memo was repudiated when the United States filed in the United States Supreme Court, in the United States v. Nixon, by Leon Jaworski, the Special Counsel, but acting on behalf of the Department of Justice said they did not accept the proposition, did not accept the proposition that a president could not be indicted and indeed strongly believe that he could be an unindicted co-conspirator, and did that with regard to Nixon. And I think the Agnew saga that you tell so well in "Bagman" tells us a lot too. One of the reasons Agnew resigned was that he was facing criminal prosecution and indictment and knew that he had to give up the vice-presidency as the bargaining chip.

MADDOW: In terms of -- you know -- sorry, go ahead, sir.

DELLINGER: Go ahead. We learned something very important from the anti-Semitic dances that Spiro Agnew did after he left the vice-presidency. Now, he was allowed by giving up the vice-presidency, he was allowed to plead guilty to one charge of a $10,000 fine and unsupervised probation. And that slap on the wrist, which as you tell it was so hard to take on behalf of the prosecutors in that case of his severe corruption, allowed him to lead a fairly distinguished life thereafter. And it makes me question whether that light a penalty for Agnew was really worth playing if it allowed him to have the kind of role he had with the Saudi's Jihad Project.

MADDOW: And of course all these things mesh together. I mean, Agnew felt compelled to resign because he believed he was subject to indictment. The Attorney General was able to bring that pressure to bear on him only because Nixon did -- excuse me, because Agnew had no reason, real reason to believe he was going to be immune from prosecution. It is striking to me to see this top aide to Attorney General Elliott Richardson at the time from the time the Dixon memo was written, saying that was never intended to be a definitive pronouncement on indicting a president, to the extent that that has laid some of the foundation for us believing as a country that that's completely off the question. That's curious. This shouldn't be seen as something that should be so durable either in the specifics of the Dixon memo or anything that's grown since then. Do you think, I mean, absent the politics of whether or not this is realistic, do you think this is something the Justice Department should revisit? Should Mueller or the Office of Legal Counsel go back at this question about the indictability of presidents and vice-presidents?

DELLINGER: I do think they should, especially -- especially if the president would not waive the statute of limitation for any crimes that time might expire during his time of service. If he won't do that, then I think they should proceed to an indictment if the facts of the law warrant it. And then proceed to prosecution when he leaves office. Remember, no one disputes that the president can be indicted once he leaves office, and that's only 22 months out from this term.

Can you help us out?

For nearly 20 years we have been exposing Washington lies and untangling media deceit, but now Facebook is drowning us in an ocean of right wing lies. Please give a one-time or recurring donation, or buy a year's subscription for an ad-free experience. Thank you.


We welcome relevant, respectful comments. Any comments that are sexist or in any other way deemed hateful by our staff will be deleted and constitute grounds for a ban from posting on the site. Please refer to our Terms of Service for information on our posting policy.