Keep Factually independent
Whether you agree or disagree with our analysis, these conversations matter for democracy. We don't take money from political groups - even a $5 donation helps us keep it that way.
How does the Department of Justice handle allegations of lawbreaking by a sitting president?
Executive Summary
The Department of Justice follows a long‑standing internal position, articulated in Office of Legal Counsel memos, that a sitting president cannot be criminally indicted or prosecuted while in office, so allegations are investigated but formal charges are deferred until after the presidency; that guidance is internal policy, not settled constitutional law, and the Supreme Court has not squarely ruled on presidential criminal immunity [1] [2] [3]. Recent developments and court oversight show the DOJ’s handling of allegations against senior figures remains politically contested and actively litigated, with judicial scrutiny of prosecutorial conduct and public debate over whether the OLC rule should bind prosecutors [4] [5] [6].
1. Why DOJ’s “no indictment” rule exists and what it actually says — the structural argument that drives policy
The Department of Justice’s internal position relies on structural separation‑of‑powers reasoning: criminal prosecution of a sitting president would impede the executive branch’s constitutional functions, so the OLC memos from 1973 and 2000 advise against indictment while in office. Those memos reason that the Constitution provides political remedies—impeachment and the Twenty‑Fifth Amendment—for removal or disability, rather than criminal process during the term. The policy permits full investigation and evidence gathering but recommends deferring criminal charges until after the president leaves office. The memos are internal legal guidance and are not statutes or definitive Supreme Court precedent, and legal scholars and some courts have questioned or contrasted the reasoning with textual readings of the Constitution [1] [2] [7] [3].
2. The legal uncertainty — courts, scholars, and competing interpretations
Although OLC memos shape DOJ practice, the question of whether a sitting president is constitutionally immune from indictment remains unresolved by the Supreme Court. Lower courts have addressed related issues—civil immunity and aspects of criminal accountability for officials—but the Court has not squarely decided presidential criminal immunity, and commentators note that Article I and judicial precedent create grounds for dispute. Some legal scholars argue indictment is possible and consistent with constitutional text; others support the OLC’s functional approach. Because OLC guidance is internal rather than binding law, an Attorney General could alter it, and eventual judicial resolution would be required to settle the constitutional question definitively [1] [7] [3].
3. How DOJ acts in practice — investigate now, charge later, or use alternative tools
In practice, DOJ investigators may pursue thorough investigations of a sitting president, collect evidence, and recommend charges, but the current institutional default is to postpone indictment until the president leaves office. DOJ can pursue related prosecutions against co‑conspirators or subordinate actors where applicable, and Congress retains impeachment as the primary political remedy. The policy influenced high‑profile investigations in recent years; special counsels and prosecutors have had to navigate DOJ rules on charging decisions while balancing evidentiary and separation‑of‑powers considerations. The departmental stance thus shapes charging decisions even when debate about its legal firmness continues [1] [3] [8].
4. Recent developments showing political and judicial friction over DOJ handling
Since 2024, events and court hearings have placed the DOJ’s approach under intense scrutiny: federal judges have publicly questioned prosecutorial conduct in politically charged cases, and former special counsels have criticized perceived politicization of prosecutorial choices, citing examples where charges were pursued or dropped under controversial circumstances. Judicial remarks in hearings and appellate proceedings emphasize heightened scrutiny of DOJ impartiality, while commentators note that prosecutorial independence can be strained by political context. These developments illustrate that the practical effect of DOJ policy is shaped not only by legal memos but also by courtroom oversight and public controversy [4] [5] [6].
5. What’s missing from the debate and the consequences if the rule changes
Debate over the DOJ’s no‑indictment policy often omits that changing the rule would have immediate institutional and political consequences: an Attorney General could revoke the OLC guidance, prompting rapid legal challenges and potentially forcing courts to resolve a constitutional question with wide separation‑of‑powers implications. Conversely, Congress could pursue statutory or constitutional clarifications, though Article I mechanisms primarily address removal rather than criminal process. The unresolved nature of Supreme Court authority on this specific question means that any departure from current DOJ practice would likely produce protracted litigation and significant political fallout as courts, prosecutors, and Congress litigate the proper balance between accountability and executive functionality [2] [3] [7].