The Atlantic – “What’s astonishing is that presidential criminal immunity has no grounding in actual law. It’s not in the Constitution or any federal statute, regulation, or judicial decision. It is not law at all.”

“One conclusion is apparent following Donald Trump’s four years in office: A sitting president is perhaps the only American who is not bound by criminal law, and thus not swayed by its disincentives. What’s astonishing is that this immunity has no grounding in actual law. It’s not in the Constitution or any federal statute, regulation, or judicial decision. It is not law at all. Instead, the ban on the indictment of a president rests on an internal personnel policy developed by the Department of Justice under two harangued presidents: Richard Nixon and Bill Clinton. In essence, the policy directs federal prosecutors to stand down when it comes to criminally charging a president. This is a dangerous state of affairs, and Congress must eradicate this policy with legislation—and it must do so soon, in case Trump does run for another term. In the American system of separated powers, “Can the president do that?” is the wrong question. The right question is “If he does that, what’s the consequence?” The answer to the latter must lie in one or both of the other two branches: Congress, through impeachment and removal, or the federal judiciary, through indictment and trial. Impeachment and removal are clearly not working as a check on criminal abuses in the Oval Office. That leaves the courts. But courts can hear only cases brought to them; the federal criminal docket is exclusively populated by federal prosecutors. And their ultimate boss—the president, through the executive-branch chain of command—won’t let them bring cases against a sitting president. In effect, the DOJ memoranda excise the judicial branch from the work of addressing criminal conduct in the White House—with no clear constitutional authority to do so. (I explain this in detail in a recent law-review article – Kimberly L. Wehle, Law and the OLC’s Article II Immunity Memos, 32 Stan. L. & Pol’y Rev. 1 (2020))…”