Why did Mueller say that going against the olc opinion would be unconstitutional?

[drray23]

I am not a lawyer so I dont understand the reason. I thought that the only body that could rule about the constitutionality of something is the supreme court ?

The department of justice policy about not indicting a sitting president is just the result of a legal analysis by a team of olc lawyers. It has not been tested in court ( as far as I know) .
I find it hard to believe that the executive branch can just draft opinions and declare that part of the constitution. What am I missing ?

[PoliticAverse]

1. Ultimately the Supreme Court is the final authority but everyone can have their own belief...

and act accordingly.

Mueller was working under the DOJ and the OLC opinion is the (current) official policy belief on the matter.

(A similar issue is occurring now and has in the past with the issue of the DOJ, criminal contempt of Congress and
executive privilege).

The real problem is that the DOJ is part of the executive branch. This is why the only real fix for issues like this is impeachment.

[FBaggins]

2. Where does he say that?

The reason he couldn’t go against it was because it’s DOJ policy (and has been for decades) and he was part of the DOJ. The AG or the President could change that... but the executive branch is responsible for indictments... even the Supreme Court couldn’t change that.

[drray23]

5. He explicitly said so during the hearing.

He answered that he could not go against the OLC opinion because it would be unconstitutional. The fact he is reticent to break department policy I understand. What I dont get is why he qualified that as being unconstitutional.

[FBaggins]

7. Again... can you point to where?

Who was questioning at the time?

Some way to find the actual wording. I don’t remember anything like that.

[Nevermypresident]

10. I heard him say it as well.

[drray23]

11. I was listening on Sirius xm driving to work.

It was this morning early in the hearing. I have not found a clip yet. Maybe they will release the transcripts.

[FBaggins]

12. That's why I was asking

The most likely reason for something that doesn’t sound legally correct (from someone like Mueller)... is that he didn’t actually say what you thought you heard.

Here’s what I found so far:

"You would not indict because under the OLC opinion a sitting president cannot be indicted. It's unconstitutional," Mr. Mueller said in response to questions from Mr. Nadler.

That would be easy to mid-hear. But it isn’t a statement that going against the OLC opinion would be unconstitutional... it’s an accurate description of the OLC’s opinion.

[drray23]

13. Found the transcript.

Jerry Nadler:                 03:25                Is it correct that if you had concluded that the president committed the crime of obstruction, you could not publicly state that in your report or here today?

Robert Mueller:            03:34                Well, I would say you, I could… The statement would be that you would not indict, and you would not indict because under the OLC opinion, a sitting president, excuse me, cannot be indicted, be unconstitutional.

It is at
https://www.rev.com/blog/robert-mueller-testimony-transcript-house-congressional-testimony

[FBaggins]

16. As I said above... that's not at all what you described

It’s a statement about what the opinion says, not an evaluation re: whether it would be a constitutional violation to go against that opinion.

[The Velveteen Ocelot]

3. Because at this time there is no legal authority to the contrary.

No court has ruled on the issue, and if a prosecutor ever tried to indict a sitting president that indictment would be challenged on the basis cited in the OLC memos, the constitutional doctrine of separation of powers. The question would surely wind up at the Supreme Court, and maybe we don't want this court to make that decision. But because a court has not decided the issue, the OLC memos are the only thing Mueller had to rely on.

[Claritie Pixie]

4. Did he use the word unconstitutional?

[drray23]

6. Yes explicitly which is what surprised me.nt.

[Claritie Pixie]

8. I didn't hear that, thanks.

Article II gives Congress the authority to impeach and remove from office. I understand why the DOJ policy exists, so that the DOJ can't usurp Congressional authority.

That's probably why he said it.

[elleng]

9. I don't think he put it that way,

but rather he stated OLC's conclusion vis a vis indicting a sitting president.

[Hermit-The-Prog]

14. the Constitution provides a way to convict a President

The Department of Justice is a part of the Executive Branch, which is headed by the President. That alone makes it a problem for a DOJ employee to indict a President. An indictment would have the body attacking the head. An indictment would mean a trial. Which court? If convicted, who arrests?

The U.S. Constitution says that the House has the sole power of impeachment and the Senate has the power to try such impeachments, with removal from office upon conviction. It does not provide for a part of the Executive Branch to remove a President from office.

[EffieBlack]

15. He didn't specifically say that

He said the OLC opinion is that indicting a sitting president would violate the Constitution.