Prosecutorial Decisions During the Charging Stage

¶This Office conducted its investigation against the background of the Department's prior legal determinations with respect to the potential criminal liability of a former President for official acts. The longstanding view of the Department was that the Constitution's separation of powers precludes prosecution of a sitting President for official or unofficial acts. See Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting Presidents Amenability to Indictment and Criminal Prosecution,²⁴²⁴ See ECF No. 252 at 19 & nn.77-79; SCO-02295943 at 3 (Presidential Daily Diary 11/22/2020); SCO-00767550 at 9-12, 18 (HSC Tr.). Op. O.L.C.²²²²²² Press Release, U.S. Attorney's Office for the District of Columbia, Three Years Since the Jan. 6 Attack on the Capitol (Jan. 5, 2024), https://www.justice.gov/usao-dc/36-months-jan-6-attack-capitol-O. (Oct. 16, 2000) (2000 OLC Opinion); Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (1973 OLC Opinion). But that same legal conclusion recognizes that former Presidents could be held criminally liable for conduct undertaken while in office. 2000 OLC Opinion at 255 & n.32, 257. The Department's constitutional analysis of the "temporary" immunity of a sitting President, id, drew no distinction between official acts and unofficial conduct.

¶Consistent with that analysis, former Department of Justice prosecutors had historically investigated presidential conduct based on the understanding that no criminal immunity would bar prosecution if the President had used his official powers to violate federal criminal law. Significantly, no President whose conduct was investigated (other than Mr. Trump) ever claimed absolute criminal immunity for all official acts. During the Watergate investigation, for example, prosecutors examined whether President Nixon was liable for the obstruction-of-justice conspiracy charged against the Watergate conspirators. Although President Nixon was not indicted, the grand jury named him as a co-conspirator, United States v. Nixon, 418 U.S. 683,687 (197 4), and in the Supreme Court, President Nixon acknowledged his exposure to prosecution after leaving office, see United States v. Nixon, Nos. 73-1766, 73-1834, 1974 WL 174855, Resp. Brief at *98 (U.S. June 21, 1974) ("While out of necessity an incumbent President must not be subject to indictment in order for our constitutional system to operate, he is not removed from the sanction of the law. He can be indicted after he leaves office at the end of his term or after being 'convicted' by the Senate in an impeachment proceeding."). Similarly, President Ford's pardon of President Nixon rested on both Presidents' understanding that President Nixon was exposed to criminal liability. See Trump v. United States, No. 23-939, 2024 WL 1592669, Brief for the United States at 15-16 (U.S. Apr. 8, 2024) (Gov't Sup. Ct. Brief) (collecting sources). Later, Independent Counsel Lawrence Walsh and Special Counsel Robert S. Mueller III conducted investigations into presidential conduct. I Lawrence E. Walsh, Final Report Of The Independent Counsel For Iran/Contra Matters: Investigations and Prosecutions, ch. 27 (Aug. 1993);²² (Congressional Record 01/06/2021). Robert S. Mueller III, Special Counsel, Report On The Investigation Into Russian Interference In The 2016 Presidential Election (Mar. 2019) (Mueller Report). Neither investigation reflected the view that presidents, after leaving office, were immune from prosecution for their official acts. See Mueller Report at 168-181 (analyzing constitutional separation-of-powers issues and statutory clear-statement issues before concluding that the President was not categorically exempt from criminal law for his official acts); see also Gov't Sup. Ct. Brief at 17 (quoting Walsh Report: "a past President" can be "subject to prosecution in

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¶appropriate cases"). And counsel for former President Trump stated at his second Senate impeachment trial that declining to convict him on the article of impeachment alleging conduct related to January 6 would not place him in "any way above the law" because a former President "is like any other citizen and can be tried in a court of law."²² (Congressional Record 01/06/2021). Proceedings of the U.S. Senate in the Impeachment Trial of Donald John Trump, S. Doc. No.117-2, at 144 (2021 );¹⁶⁷¹⁶⁷ See ECF No. 252 at 48-49 & nn.251-254, 51-52 & n.274, 56-57 & nn.302-307, 58 & n.312, 65 & n.352; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); SCO-00310626 (Co-Conspirator 5 memo 12/06/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-12184337, SCO-12184338 (Email from Co-Conspirator 2 to Co-Conspirator 5 and Co-Conspirator 6, with attachment 12/23/2020) (memo); SCO-12101300, SCO-12101301 (Email from Co-Conspirator 2 to Co-Conspirator 6, with attachment O1/03/2021) (memo).Show full note CONG. REC. S667, S693 (daily ed. Feb. 12, 2021) ("[T]he text of the Constitution ... makes very clear that a former President is subject to criminal sanction after his Presidency for any illegal acts he commits."). This Office made its investigative and prosecutorial decisions based on the same understanding.

¶The conduct at issue in the Election Case involved both unofficial and official conduct. Much of the former President's alleged conduct involved actions in his private capacity as a defeated candidate for reelection seeking to overturn the result-e.g., his coordinated conduct with his personal attorneys, campaign staff, and other private advisors. Such private conduct does not implicate constitutional functions of the presidency. Other alleged conduct, however, did involve the former President's misuse of official authority-including using the power of the presidency directly by exercising his authority over agencies and personnel in the Executive Branch. In determining to bring charges in the Election Case, the Office therefore examined the former President's amenability to prosecution for that conduct through the lens of two doctrines: the separation of powers under the Constitution and clear-statement principles that limit the application of criminal statutes to presidential conduct in certain circumstances. The Office concluded that neither the separation of powers nor clear-statement principles barred prosecution for the limited instances of official conduct at issue.²⁶⁶²⁶⁶ The Office addressed separation of powers and clear-statement principles in the district court, see ECF No. I09 at 32-34, and the Supreme Court, see Trump, No. 23-939, Brief for the United States at 26-31. Neither the district court nor the majority opinion in the Supreme Cou1t addressed the application of clear-statement principles to the charges in the case.

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¶That determination was consistent with similar conclusions reached by Special Counsel Mueller after detailed constitutional and statutory analysis; his report concluded that "Congress can validly regulate the President's exercise of official duties to prohibit actions motivated by a corrupt purpose" and that clear-statement principles of statutory interpretation did not apply to preclude application of criminal obstruction statutes to corrupt presidential conduct. Mueller Report at 168-181. Based on the same principles and legal frameworks, the Office's analysis determined that the potential charges-conspiracy to defraud the United States, conspiracy and substantive obstruction-of-justice offenses, and conspiracy to deprive citizens of voting rights would not entail application of the statutes in a manner that burdened presidential prerogatives, and thus that the application of criminal law triggered neither clear-statement principles nor separation-of-powers concerns.