OPINION: The law that isn’t

This morning, I did a double take. Maggie Haberman of The New York Times wrote in the Wall Street Journal of former President Trump, “when he was President, he was protected because of a Justice Department opinion against indicting a sitting President.” Ms. Haberman is missing something, and she isn’t alone. Like many others in the media, as well as the legal scholars and politicians they interview, many have repeatedly made similar statements over the years and hurriedly glossed over a stunning implication: Presidents are immune from indictment because of an opinion.

I’m no lawyer but it is my understanding an “opinion” is not a law, hence the crux of the issue with Ms. Hagerman’s statement. The U.S. attorney general issued this opinion in 1973 after the resignation of President Richard Nixon. This “policy,” written by a team of attorneys, has achieved a life of its own, never questioned, never revisited, and most importantly, never established by Congress into law. Within this monumental opinion paper, it establishes no limits on what would be considered a criminal act by a president. It simply arrives at a conclusion, paraphrasing, that to criminally indict a president while in office would be extremely disruptive to the daily duties and responsibilities of the president and, therefore, indictment should not occur.

One of the rationales listed in the Department of Justice position is the argument it would be impossible for a jury of everyday Americans to be able to arrive at a judgment against someone whose position is outside of the “… experience and contemplation of ordinary, everyday life.” (pg. 231 of “A Sitting President’s Amenability to Indictment and Criminal Prosecution” by the Department of Justice). Isn’t this a little presumptuous — and perhaps a little condescending? We ask juries every day to decide questions about guilt or innocence on all types of crimes, against circumstances they have never personally encountered or imagined, crimes clearly outside the normal contemplative existence of a general citizen. It is an imperfect system and we are imperfect human beings, but I have faith the general American will follow the expectations and rules of deliberation, established by a judge, as has been done in thousands of criminal trials throughout our history.

Why are we not challenging this “policy?” Why are we accepting this as an act of law when it isn’t? It does not matter whether you are a Trump or Biden supporter. This “policy” protects every sitting president and their successor. If the Founding Fathers wanted special protections for the president, I’m sure they would’ve established immunity within the Constitution. Having just won a war of independence against a monarchy where the king and head-of-state was outside the law, I believe we can reasonably surmise there was no contemplation about giving the same “rights” of a king to the president.

The president may indeed require some level of immunity while in office. But an issue of this magnitude must be resolved by our elected officials in Congress, not a few unelected attorneys within the executive branch.

I call on Sen. Lisa Murkowski, Sen. Dan Sullivan and Rep. Mary Peltola to be the first in Congress to bring this forward and respond to this issue. If they fail to respond, then I call on the media to ask the hard questions and aggressively report this fundamental question. This isn’t about a jury of 12 Americans overriding the decision of an election. By that logic, no politician, elected to any office, can or should ever be convicted of a crime. Our democracy is being held hostage by a legal opinion never established in law. Let’s re-establish some equality under the law and accountability for the office of the presidency, no matter who is in office.

Will Hastings is a retired U.S. Air Force lieutenant colonel who served as an Air Force intelligence officer for 20 years. He is a 1993 graduate of the U.S. Air Force Academy and holds a Bachelor of Science in history, two master’s degrees and an associate’s degree. He worked 5 years on the North Slope for BP as a facility operator and now lives in Wasilla, where he has a small farm.

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