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Background

In page 213 of the Mueller Report, the Special Counsel team describes thier considerations that guided their obstruction-of-justice investigation.

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions in violation of the constitutional separation of powers. Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. 515; 28 C.F.R. this Office accepted legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.

Regardless of the reasoning, it is the belief of the Special Counsel's team that a sitting president cannot be indicted regardless of the crimes he committed (at least in obstruction of justice in this particular case). This seems to directly contradict the "no man is above the law" principle outlined by the 14th ammendment of the constitution.

Question

Does the Special Counsel's non traditional prosecutorial decision making put the president above the law since he is unable to be prosecuted?

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    "we determined not to make a traditional prosecutorial judgment" This was "news" and many seemed to be surprised (or disappointed) by it. What puzzles me is why this wasn't made clear at the beginning of the process. Perhaps that should be another Question. – Keith McClary Jul 13 at 3:45
  • @Keith McClary, by another question you mean "Why wasn't the decision to not make a traditional prosecutorial judgement not made clear at the start of the 2017 Special Counsel Investigation?" or something like that? – isakbob Jul 13 at 12:20
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    @KeithMcClary, I just made a question that arose out of your comment here. – isakbob Jul 13 at 17:20
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Does the Special Counsel's non traditional prosecutorial decision making put the president above the law since he is unable to be prosecuted?

All federal government employees, including the Special Counsel, are required to conform to the interpretations of the law provided by the Office of Legal Counsel in the absence of a directly applicable court order to the contrary. But, the fact that the federal government attorneys are effectively prohibited from prosecuting the President for crimes while the President is currently in office does not put him entirely above the law.

  • This does not preclude state and local prosecutors from charging the President with state crimes while he holds office, and if those crimes do not arise from the President's conduct in an official capacity while serving as President (in which case Presidential immunity bars actions).

  • This does not preclude federal prosecutors from charging the President with federal crimes committing while the President held office or before the President held office after the President ceases to serve as President.

  • This does not preclude a federal court from declaring that the Office of Legal Counsel opinion by which the Special Counsel is bound on this issue is invalid, although it is challenging to think of a procedural context in which this issue could be squarely presented to a court. The OLC opinion could also probably be overridden by Congress in a law (that would probably have to overcome a Presidential veto), as the claim that the OLC decision is one that it is constitutionally required to arrive at is a weak one.

  • This does not preclude individuals or Congress from bringing suit against the President in a civil action, including a contempt of court proceeding in a civil action prosecuted by someone other than a federal government attorney.

  • This does not preclude Congress from impeaching the President and removing him from office.

Nonetheless, the Office of Legal Counsel opinion referred to by the Special Counsel certainly does significantly impair the extent to which a President can be punished for violating federal law as a practical matter.

This seems to directly contradict the "no man is above the law" principle outlined by the 14th amendment of the constitution.

I'm not sure what makes you think that the 14th Amendment is relevant in this case.

Section 1 of the 14th Amendment to the United States Constitution sets a minimum threshold for citizenship and sets for constitutional obligations that apply to U.S. states.

Sections 2-4 of the 14th Amendment to the United States Constitution govern issues particular to the Reconstruction era.

Section 5 of the 14th Amendment gives Congress the authority to pass legislation enforcing the other sections.

There isn't really a "no man is above the law" concept expressly stated in the U.S. Constitution (in contrast, France has had such a provision since the French Revolution). But, to the extent that one can construed a provision of the U.S. Constitution as setting forth such a requirement, it needs to be in a provision that applies to the federal government, rather than one applicable to state governments.

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    An answer to a different question on this site recently suggested that the "Equal protection of the laws" clause in the US federal 14th effectively constitutionalized the 'no man is above the law" principal which has been at least a rhetorical bais of US law since independence. That view may be in error. – David Siegel Jul 13 at 2:14
  • It seems to me that the best articulation of the "no man is above the law" principle is at the end of Article I section 3: "Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." – phoog Jul 13 at 3:31
  • "This does not preclude state and local prosecutors from charging the President with federal crimes" - State prosecutors can't charge federal crimes. Did you mean to say they can charge non-federal crimes? – D M Jul 13 at 15:12
  • @DM My bad. Fixed. That's was just a mistake that I didn't catch. I had originally written "non-federal crimes" and must have cut off some of it by mistake when I posted and didn't catch it. – ohwilleke Jul 13 at 20:34

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