Policy against indicting a president 'shaky' not 'at all solid': former OLC chief

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The way matters show. We at nine eastern on MSNBC. It's been a tremendously busy day. A federal judge today has ruled that labor secretary Alex Kosta broke the law when he was US attorney and gave a secret non-prosecution agreement to a billionaire serial child sex offender, Alex Kosta is still serving as US labor secretary as of tonight, so far the White House has had no response to that federal judges ruling today also today in that botched election in North Carolina that has resulted in there being no member of congress seated from that district. We now know how we are going to get somebody seated from that district the state elections board today unanimously ordered that a new election must be run there from scratch also today lawyers for the president's longtime adviser Roger stone put Mr. stone on the stand to explain why he put a picture online this week targeting. The federal judge who. Who's overseeing his case that judge did not jail Roger stone today, which she might have done. She did issue a strict gag order. And she warned that if stone breaks the gag order by speaking publicly about his case in any way, he will go to jail ahead of his trial. The judge told him today specifically, quote, I will find it necessary to adjust your environment. So it's been a very busy busy news day. And of course, the weather system looming over everybody's environment right now is these reports from multiple news agencies that the molar investigation may soon be producing its report. Now as always the most important thing there is that nobody really knows other than Miller and his team and they don't leak, and they don't make public comments. So nobody really knows. But the expectation that Robert Mueller is about to produce his final report those expectations are more heightened now than they have ever been. And it is in context tonight that we are bringing you this Rachel maddow's show special report. This is something that we have been working on for a while now, and it's based on documents we have obtained most of which have previously never been seen by the public. So let me just give you a little little table of contents in terms of how this is going to go tonight. First of all there's a couple of sets of documents. I'm gonna show you that are. Things that have just never before seeing the light of day or certainly never widely seen the light of day. One of them adds a previously unknown element to our understanding of a recent president. Another set of these documents adds, a fairly explosive new set of facts to what we know about an important White House scandal. So couple of sets of documents one about a recent president one about a recent relatively recent White House scandal, but where we're going to land here is on some some documents and some revelations, including one very important interview, which have direct implications for some of the thorniest questions. We are facing right now when it comes to this presidency and the potential resolution of the existential scandal that has surrounded the Trump presidency and the Trump election from the very very beginning. Is that your table of context because you get comfortable deep breath. Here comes some stuff we have really never heard about before. All right, where we are going to start tonight is October nineteen Eighty-eight just a few weeks before the nineteen eighty eight presidential election, the nineteen eighty eight presidential election, of course, was between democratic nominee. Michael dukakis? Who is the sitting governor of? Of Massachusetts, and the Republican nominee who was sitting vice president of the United States, George Herbert Walker Bush. So it was just a few weeks before that election that October when those two nominees squared off in a presidential debate debate. That would become the stuff of political legend was the final debate that year it was held in Los Angeles on the campus of UCLA and the big moment that everybody still remembers from that debate. All these years later is actually a moment that came right out of the gate came right at the top of the debate the democratic nominee. Michael Dukakis was asked right at the start of the debate. What he would do if his wife kitty were raped and murdered. Sure, Michael Dukakis had long been opposed to the death penalty. But one of his wife kitty was raped and murdered would he still be against the death penalty? Then. Michael Dukakis got that question. It was the first question of the whole debate. And I don't know exactly how you would give a right answer to that question. But this at the time was seen as not the right answer. Governor if kitty Dukakis were raped and murdered. Would you favor and irrevocable death penalty for the killer? No, I don't Bernard. And I think you know, that I've opposed the death penalty during all of my life. I don't see any evidence that it's the deterrent. And I think there are better and more effective ways to deal with violent crime. I can't hard to know what the right way is to answer that particular question, but that dispassionate calm answer from governor Dukakis that was seen at the time sort of a political disaster that was seen as they. Oh my God. He just blew the whole election kind of moment. And in fact, the Dukakis campaign did not come back after that. Last debate Dukakis had had a huge lead over George H W Bush that summer of nine hundred eight I mean, vice President Bush was vice president, but he was essentially trying to run for a third term of the Ronald Reagan presidency. And it's always hard to ask voters to give the same party three. Presidential terms in a row. Papi. Bush was also a little hamstrung by choice of a running mate. He had picked him in named Dan Quayle. It was a fairly well respected handsome, young Republican Senator to be his his vice presidential running mate. But even those Dan Quayle was like well enough as a Senator as a potential vice president he was widely seen as not ready for prime times seen as not up to the task of being heartbeat away from the presidency and in the summer of nineteen eighty eight when George H W Bush was really on the ropes when it looked like he was not going to win. It was way down in the polls. Definitely look like Dukakis was going to beat him. Summer of eighty eight. He secretly reached out to an old friend for help in trying to figure out how to come back and win that election. That debate in Los Angeles was held on October thirteenth nine hundred eight two days before the debate on October eleventh vice president George H W Bush wrote this note, check it out Ted as I head for the coast. I want you to know I got your last two letters. I think the quail attacks have not hurt long run now off to the last debate best wishes. Now, the Ted that vice president gee was writing to there was the honorable Ted Agnew Spiro Agnew. He was writing to Spiro Agnew. The disgraced convicted former vice president of the United States who had been absent from public life at that point for fifteen years since Agnew, it had to plead detaxation charges and resigned, the vice presidency in nineteen seventy three in a way that only quite narrowly avoided him going to prison. I mean two days before that key last presidential debate in Los Angeles in one thousand nine hundred eight maybe the most important moment of George Bush's political life up until that point and Bush was secretly consulting. A convicted felon for political advice. Since we released our little podcast series bagman about the amazing and mostly forgotten scandal that led to the removal of vice president Spiro Agnew from office. One of the things that's happened since we launched that that podcast series. And we got such a great response to it is that we have been able to get a hold of some new documents related to Spiro Agnew documents that we didn't have before and that haven't been publicly seen before. And they turn out to be documents that shed some light on details of modern American history that really haven't been known before documents like these previously unknown personal correspondences between George H W Bush and Spiro Agnew during the summer and fall of the nine thousand nine hundred eighty eight presidential campaign Agnew was meeting with at least one advisor to then. Vice President Bush knew was offering hints on handling the Dan Quayle attacks against Spiro Agnew at. This point was a convicted felon. He was the first vice president to resign. His office in disgrace. Everybody else in public life would run a mile. L to keep their distance from Spiro Agnew. But I mean, look at this one here was George H W Bush sitting vice president and presidential candidate during that presidential campaign writing to convicted felons Spiro Agnew quote. I'd love to have a paper from you with any suggestions you'd care to make. I welcome such a paper. I really would. This was him. Asking for written advice from Abdu on how Bush could best plan his campaign to beat Dukakis. And it's not like George Bush was naive or ignorant about Spiro Agnew past. As we found in back men. Poppy Bush was the Republican party chairman at the time of the scandal. He was brought into what looks very much like a criminal obstruction of Justice scheme orchestrated by the Nixon White House to try to pressure. The federal prosecutors who are working on the Adnew case that they should drop the case. I mean, George H W Bush was personally in on that he was part of that scheme. He knew exactly what had gone down with Agnew. But thanks to these documents that we have now obtained we can now see that Bush kept up this. If you SUV secret back channel communication with Agnew for years after that, including right through his own thousand nine hundred eight presidential campaign. So that Bush Agnew correspondence. I think is is basically a new piece of presidential and presidential campaign history. Which is worth knowing about pappy Bush in the nineteen Eighty-eight campaign worth knowing about Agnew, especially in light of Agnew's disgracing the way he was removed from office. But I tell you that in part to lay the groundwork for some of the other stuff that we have obtained in the course of the bagman research and thereafter. We have also obtained some other materials that don't just give us an interesting new footnote in presidential history. These are materials that I think are just simply pretty explosive. So let me just show you what we got what you are looking at here is a telegram telex that was sent in one thousand nine hundred eighty and as you can see at the bottom of the telex telex telegram that was sent by Spiro Agnew, former vice president of the United States, and in terms of the timeline here, you'll recall Agnew resigned. The vice presidency in nineteen Seventy-three. So this is a telegram. He was sending seven years later in one thousand nine hundred eighty when he was a private citizen, and he sent this message to as you can see his excellently his cues me his excellency. Ahmad Abdul will hop chief of Royal protocol kingdom of Saudi Arabia. What Spiro Agnew was asking. For in this telegram. He wrote to the Saudi kingdom. Was something very specific. He wanted an audience with the Saudi Crown prince at the time Agnew wrote quote. It would be deeply appreciated if your excellency could if your excellency could arrange for me to have an audience with his Royal highness prince Fahd as soon as possible the matter to be discussed involves a personal emergency that is of critical importance to me. So this is former vice president Spiro Agnew writing to the chief of protocol of the Saudi Royal family in one thousand nine hundred saying I need to meet with the crown prince on something that is of critical importance personal emergency. Agnew says in this telex quote in the past his Royal highness has shirt me that he would be available. Should I need to see him? So this is a former vice president basically calling in a Chit of some kind. He once told me I could call on him if ever needed help them. Well, now, I need help what Agnew gets back in response to this telegram is this to his excellency Spiro Agnew read, your telex in which you have expressed your wish to have an audience with his Royal highness prince Fahd stop we can arrange for you to have an audience with his Royal highness on August, fifteenth regards. So then we get Agnew's response back to that telex back to the Saudi protocol. Chief, quote, I am very pleased to accept your kind offer to arrange an audience with his Royal highness prince Fahd on August fifteenth. So this is ABC News saying, okay, I'll be there, quote, please advise time and location when available so America's relationship with Saudi Arabia is complicated. Even in the best of times. Right. I mean think about what we're in right now as we speak the US Saudi relationship right now revolves around among other things a suspected illicit relationship between the Saudi Royal family and the National Enquirer, which is headed up by the president's longtime friend, David pecker questions about whether the National Enquirer might have been acting as an agent of the Saudi government when that publication went on the warpath against Amazon CEO in Washington Post owner Jeff Bezos, recently, the post has been critical of the Saudi government recently over the murder of Washington Post. Journalists mal kashogi inside a Saudi consulate Jeff Bezos has suggested that the Saudis may have retaliated against him for that coverage with an extortion and blackmail effort run out of the National Enquirer all this happening while the Trump administration continues to resist blaming the Saudi government for the murder at all. Just this week. It was announced that the Trump administration is also now being investigated by the oversight committee in congress over a secret plan to transfer highly sensitive nuclear technology to Saudi Arabia against the warnings of top national security officials and potentially against the law. This nuclear thing was a plan that several people associated with the president appear to have had a significant personal financial stake in. So the relationship between the us and Saudi Arabia has been complicated for a long time. It is still messy as all get out right now. But what we know from these documents, we've obtained is that the modern history of Saudi Arabia and presidencies in trouble might be even more complicated than we previously. Understood because what disgraced vice president Spiro Agnew wanted from that desperate plea. He was making to meet with the Saudi Crown prince that summer of nineteen eighty with this disgraced former US vice president was approaching Saudi Arabia about and asking for. Sort of breathtaking, but we're going to show you. Spiro Agnew was writing to the Saudi Royal family to solicit their help their financial support for him to lead a scorched earth propaganda campaign in the United States to expose the Jews to wage political war on Jews in America. No, really, the reason that Spiro Agnew sent that telegram asking for a meeting with the Saudi Crown prince is made clear in this draft of a letter that Agnew wrote to the crown prince just a few weeks later stated August twenty fifth nineteen eighty your highness at the request of Sheik Ahmed the protocol chief I am writing. This letter to explain the principal reasons for my urgent request to see you. Your highness is already familiar with the unremitting Zionist efforts to destroy me. During the time I was under attack from former attorney general Elliot Richardson in nineteen Seventy-three the reason for their need to drive me out with stated by Richardson several times he said that I could not be trusted to act properly in the Middle East. Therefore, I was framed and driven from office. The reason was that the Zionists in the United States knew that I would never agree to the continuance of the unfair and disastrous favoring of Israel, and they had to get me out of there. So I would not succeed Nixon since nineteen seventy four Zionists have orchestrated a well organized attack on me, the idea being to us lawsuits to bleed me of my resources to continue my effort to inform the American people of their control of the media and other influential sectors of American society. I'm sure that one of the lawsuits Agnew was then dealing with was encouraged by the banana breath. In conjunction with the publication of my book. I've taken every opportunity to speak out against the catastrophic US policies regarding Israel. This has spurred my Zionist enemy's onto greater efforts. I need desperately or financial support. So that I can continue to fight. Former vice president than asks the Saudi Crown prince to put two million dollars in a secret Swiss Bank account for him from which Agnew would live off the interest. And it would all be untraceable to Saudi Arabia. Coat if your Highness's willing to help me, but this method is not suitable. I would be grateful grateful for any other idea that would give me about two hundred thousand dollars a year for the next three years. I do so want to continue my fight against the Zionist enemies who are destroying my once great nation. And here's here's my favorite part. This is the way that Agnew signs off this letter to the Saudi Crown prince he says, quote, my congratulations to your highness on the clear and courageous call to jihad. Designers have me a most difficult position. And I need help urgently without delay with great respect and warm, personal regards. I am respectfully Spiro Agnew the jihad. Congratulations reference, there appears to be a reference to the fact that the Saudi Crown prince just days earlier had publicly called for a holy war against Israel. So congratulations on that. From the American vice president. I mean, just to be clear. This is a former American vice president writing to a foreign government asking for their help in fighting Jews in America because the Jews framed him, and it's the Jews who are destroying America. And he'll lead the fight against the Jews for the low low price of two hundred thousand dollars a year in secret funding from the Saudi Royal family. And on the one end. Okay. This is what became old Spiro Agnew after. He was forced out of office. He became mired in legal battles and lawsuits, and he was constantly looking to drum up money and support in all kinds of ways, including this. On the other hand. This is the former American vice president approaching the Saudi government behind the scenes and saying help me wage war on the Jews in America. Which is exactly as it. Sounds. But it gets worse because you should also know that the correspondence that we have obtained here suggest that the Saudi government appears to have done it. Again, Spiro Agnew was asking for a two million dollar loan to be parked in a Bank somewhere. And then he was gonna live off the interest. Or maybe there was some other way he could take in about two hundred grand grand a year. Well about a month after he sent that urgent requests for financial support to the Saudi Crown prince give me money to fight the Jews. Look about a month later look at this Agnew drafted. Another letter thanking the Saudi Crown prince apparently coming through for him with the funds, quote, it is difficult for me to find the right words to adequately express my gratitude for the prompt response from your highness to my urgent communication. I am now in a position to meet my obligations for about six months under the framework set forth in my letter to you. And to make clear that what he's talking about. There is money Agnew says he's also going to try to drum up some additional business in Saudi Arabia, which will quote, give me the resources to continue the battle against the scientist community here in the United States Agnew, then appears to have received a letter back from the Saudi Crown prince wishing him great success in his efforts. So okay, less than ten years out of office. A former American vice president orchestrated a secret financial deal with Saudi Arabia to fight Jews in this country. That seems like something that maybe should matter even today in what's going on between our country. And there's right. I mean is it. Okay. That the Saudis. Royal government for Royal family and government funding Agnew to do that. Back in the day. I mean, it tells you something about Agnew. But it also tells you something about the Royal family as well, which is the same family. That's in charge now. We came into possession of these documents after they were uncovered by a historical document collector named Greg Schneider. He then shared them with us after we obtained the documents from Mr. Schneider and did our own due diligence authenticating them, we then consulted the great Michael Beschloss NBC's. Presidential historian who told us he thinks that these letters? These documents have never been known about publicly before. So like, I said the reporting we did for bag men has yielded some unexpected stuff. But as promised there is something else, we turned up in reporting this story that has quite direct implications for today, maybe even for this week and specifically for the no quite pressing question of how exactly the investigation into the current president might end specifically the question of whether the president could be indicted, and that is still stay with us. Rudy Giuliani was feeling on top of the world. It was may of last year is a little less than a year ago. Rudy Giuliani just gotten some news that for him one of the lawyers for President Donald Trump for him. It was like winning the Super Bowl and the way, you know, he felt like he had just won the Super Bowl was because he went around and talked to every single news outlet. He could find about it. And he was characterized on message with every one of them. Here's how NBC news reported at that day Muller doesn't plan to indict Trump because of DOJ rules Giuliani says it was the CNN headline Giuliani Muller's team told Trump's lawyers. They can't indict a president. This was the New York Times Muller won't indict Trump. If he finds wrongdoing Giuliani says a hat, Trump can be cannot be indicted game set and match right and Giuliani. Just went out to scream it from the rooftops. This is what he told to great reporters. Halley Jackson and Kirsten Welker. We're here at NBC news. That quote, the special counsel's office acknowledges the fact that they cannot indict us Giuliani told them BBC news on Wednesday. They know they don't have that power. So their function is to write a report, we would like it to be the fairest report possible. But even if it isn't we're prepared to rebut it in great detail. So we'd like them to do it. He said, quote, it's as clear as can be that. They don't have the right to indict under Justice department rules, and I know they're not going to indict. Rudy Giuliani has had a lot of not good days being president Donald Trump's lawyer. He has careened from one damaging new development to another as we have all watched like this. But that day in may last year that was like the best media day over for Rudy Giuliani. He said that special counsel Robert Mueller's office told him they told President Trump's legal team that under Justice department rules. They know they cannot indict President Trump, even if they find that Trump has definitely committed serious crimes and the reference that Giuliani kept making it all of those interviews that day that phrase under Justice department rules that is a reference in fact to the standing internal Justice department policy that says a sitting president of the United States can't be indicted. It's not a law that says, the president can't be indicted. It's not written into Justice department regulations. It's just a department policy, and it is a policy that derives from a very specific place. And if Mr. Giuliani was on cloud nine that day back in may when he felt like that revelation about Justice department policy meant that his client is in the free and clear. No matter what he did. I hope for the sake of Mr. Giuliani's happiness level that he is maybe not watching right now. Because in reporting out the story for our podcast series bagman about Spiro Agnew. We hit upon something that I think is now important and definitely provocative in light of the news that all of these different news outlets are now reporting that we may be coming to the close of the Muller investigation, and in fact to some sort of report about Muller's findings. So this is the crux of our special report tonight. We're about to break some news here that has not been reported. Elsewhere do stay with us. This is Robert Dickson Robert Dickson in the fall of nineteen Seventy-three was the head of the Justice Department's office of legal counsel. The we'll see is the office inside the Justice department that essentially advises the attorney general on the legality of complex legal matters. The all see drafts legal opinions. They researched the constitutionality of certain issues that arise they give the attorney general official Wilsey guidance on legal stuff and in the fall of nineteen Seventy-three when Robert Dickson was the head of the oil. See there was one specific important matter that dropped on his desk like a load of bricks and it had to do with Spiro Agnew who was then the vice president of the United States. And also a crook a team of young federal prosecutors in Baltimore had discovered earlier that year in the spring and nineteen Seventy-three the vice president Agnew had been conducting a bribery and extortion scheme for the better part of a deck. Paid demanding cash kickbacks in exchange for government contracts that he controlled Agnew started running this criminal enterprise when he was the top elected official in Baltimore County. Maryland, he continued it when he became governor of Maryland and in nineteen seventy three right after Agnew had just been re elected to his second term as vice president. These federal prosecutors had discovered that he was running that same criminal scheme from inside the White House as vice president he was literally taking on voluptuous of cash bribes inside his vice presidential office. And because of what those prosecutors had turned up that fall of nineteen Seventy-three attorney general Elliot Richardson had a problem because he knew what Spiro Agnew had been up to. He knew that if Richard Nixon where to go down and Watergate an active criminal was next in line to replace him. But it was not entirely clear to the attorney general if he if the Justice department could actually bring charges against the vice president wasn't clear if it was legal to indict a sitting vice president of the United States Spiro Agnew defense lawyers. In fact, we're loudly proclaiming that you could not they were saying to anybody who would listen that Agnew was immune from prosecution simply because he was vice president. And that's where Robert Dickson came in. Because that full as head of the it was Dixon's job to figure out what exactly the Justice Department's policy on this what the Justice Department's position on this question should be. Can you indict a sitting vice president? I mean, this wasn't a theoretical concern at the time. There was a forty count felony indictment against the vice president simmering on the proverbial stove and a US attorney's office in Maryland ready to be served up at any time. Was he in fact, immune from such federal charges? Could that indictment be filed against him? I mean, legally they needed. To know also practically with Nixon teetering because of Watergate with the threat that the guy who would succeed Nixon was a known and active criminal who had been taking bribes inside the White House. The attorney general Elliot Richardson needed to know if he could use at least the threat of being able to indict Agnew in order to force Agnew out of office, thereby protecting the presidential line of succession. Now, Robert Robert Dickson had been a law professor before he was head of the it was respected legal voice, especially on voting rights and election law. But now he was being asked to figure out if it was constitutional to indict a sitting vice president, and what Robert Dickson ultimately concluded back in the fall of nineteen Seventy-three just ahead of Agnew resigning. His office in the midst of that crisis around that criminal vice president Dixon's answer when he was asked that question about Agnew for decades. Now, it has been used to support the position that he president can't be indicted. But what Robert Dickson went through that fall and trying to formulate that opinion, it turns out to be kind of stunning. One of the people who we interviewed for bagman was a former Justice department official at the time named j t Smith JT Smith served at the CIA served at the defense department, and that fall of nineteen Seventy-three he was serving in the Justice department. He was one of the closest advisors to the attorney general Elliot Richardson, he was Richardson's executive assistant and JT Smith was there was there. When Richardson asked the head of the Robert Dickson to come up with an official Justice department answer to this suddenly very pressing question about whether a sitting vice president could be indicted, and what JT Smith told us in an interview for bagman is that Robert Dickson that pressure packed fall of nineteen Seventy-three. Robert Dickson really wasn't. Sure. What the right answer was to that question. He was asked by the attorney general. As one should do to write an objective legal opinion on the amenability of the vice president. To criminal process and his office dug through two hundred years of constitutional deliberations. And opinions I think they ended up being instead of head head-scratching place where. The opinion could come out either pro or con criminal process for the vice president. And. At that stage. One evening. I took a phone call from the late Robert Dixon who said do you have any idea how the attorney general wants this to turn out? Jay, you have any idea how the once the stuttering out. And honestly who could blame Robert Dickson? It's it's not like, you can just pull out the constitution and find an answer to this question of whether the vice-president can be indicted. I mean, nobody had thoroughly grappled with this question before what J Smith says he told Robert Dickson on the phone that night is that attorney general Elliot Richardson, very much hoped that opinion would come out in favor of the position that you could indict a sitting vice president. Of course, we know that Richardson was looking for anything he could use to get Agnew out of office and out of the line of succession, Robert Dixon's opinion, ultimately did conclude as Richardson wanted that a vice president can be indicted, but listen to what J T Smith says here. Listen to what else got folded into the opinion in order for Robert Dickson to get to that desired position. He could have written it either. Yes, or no. And he wrote it. Yes. But in order to get to yes, he had to draw a distinction between the vice president and the president. So the opinion came down on the side that the president's constitutional duties or so important, but it is not acceptable for the president to be subject to criminal process while in office, but by distinction. The vice president whose duties are nowhere near as important can be subject to criminal process. And that's one of the memos now cited for the proposition. But when it was written. It was a very. Close question. And we. Professor in charge of the office of legal counsel wasn't clear. How to answer, but a got answered against the imperative of dealing with the the Agnew heartbeat away problem answer against the imperative dealing with the Agnew heartbeat away from the presidency problem and that sort of critical here right for them. And for now what the Dixon memo said in nineteen Seventy-three. What what that memo said was you couldn't device president? But incidentally, you couldn't indict a president. And the way that the history of it has been remembered since then is that that nineteen Seventy-three LLC memo was written specifically with the Richard Nixon Watergate problem in mind, and it was a definitive look at the issue of whether a president can be indicted, and even the context of Watergate, they believed that Nixon really it was about Agnew and specifically trying to get to an outcome where the answer would be. Yeah, you can bring charges against Agnew J T Smith is saying here. And again, he was there when it was written is that in the. Of expressing the view that vice president can be indicted, which was the imperative of the moment Robert Dickson upheld on the president's Amine ability to indictment, but that wasn't the intent of the memo in the first place it just asserted that about the president in order to make the relevant case about the vice president. Which is important about that history. It's also important in terms of how that memo became woven into what we currently understand is how the Justice department works because to some extent the Justice department position right now that the president can't be indicted it rests on the conclusions of that nineteen Seventy-three office of legal counsel opinion, by Robert Dixon. I mean, that's where it started. That's the foundation. The Justice department did take another look at the matter in two thousand during the Clinton administration, but the roots of this position, which is a position that stands as DOJ policy. Today. It starts with this nineteen Seventy-three DOJ opinion. We've spoken to j t Smith some more about this in recent weeks, and what he says about the drafting of that opinion in nineteen Seventy-three as somebody who was there. It's just striking given the role that that memo now plays in lending defacto immunity to the president from prosecution. Got remember he told us, quote, one prepared its purpose was to allow indictment and removal of Agnew and not to serve as the last word on Indika billet, excuse me. Indict ability of a president. He also says that we'll see opinion before concluding that a sitting president can't be indicted, it reviews, some important historical material that actually could support an opposite conclusions. And when you read that nineteen Seventy-three opinion in full what J T Smith is saying. There is true. I mean in terms of the historical record Dixon's a well, see opinion states right there in black and white that quote, there is no express provision in the constitution, which confers such immunity upon the president. And that's noteworthy because the constitution does expressly provide some limited forms of immunity from prosecution for other officials, including members of congress. But there's nothing in the constitution, providing immunity from prosecution to the president Dixon also notes in the opinion that when you go through the various writings of the founders the constitutional convention debates, quote, there are strong statements by others to the point that the convention did not wish to confer such privileges meaning immunity on the president later on. He says quote the. Historical evidence on the precise point is not conclusive. And yet he ultimately puts in at the end that even though you can't really make heads or tails of what the framers of the constitution intended quote during the past century, the duties of the presidency have become so onerous that president may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution. So this is where it all comes from. This was the original document, the full reasoning from the sea in this opinion about indicting the president is that there's nothing in the constitution about it. We don't know what the framers intended about it at all. But the job of being president has become so hard now that it would be really hard for a president to get his work done. If he was prosecuted. I mean, that's that's the thickness of it. That's laid out in this nineteen Seventy-three LLC memo. And again, the issue was revisited in the year two thousand, but this isn't part the foundation for the view today, which we've all basically come to accept that. A sitting president is immune from indictment. Except maybe we haven't all come to accept it. I mean, looking back at the thinness of these foundations and the contemporaneous commentary of people who were there and saw that stuff was written. It's interesting to see now, that's that common. Wisdom being challenged one of the things that has been fascinating to watch just over the last few weeks and months is high ranking Democrats in congress quietly but steadily starting to call the question on whether internal Justice department policy, which is in part based on that nineteen Seventy-three memo whether Justice department policy really does definitively preclude an indictment against a sitting president Democrats expressing doubt about that. Now include the chairman of the House Judiciary committee, Jerry Nadler, and the chairman of the house oversight committee Elijah Cummings and the chairman of the intelligence committee, Adam Schiff, it also includes the speaker of the house. Do you believe the special counsel should honor and observe the department of Justice guidance that states a sitting president cannot be indicted? My not saying that that is conclusive Noah do not I think that is an open discussion in terms of the law open discussion in terms of law. Democrats have been telegraphing for a few months now that they believe a sitting president can be indicted by the Justice department, despite whatever you might have heard about what current internal Justice department policy is on this matter. Earlier this week that was report at politico dot com that quote legal circles are buzzing over whether SDN y might buck Justice department guidance and seek to indict a sitting president. In other words, the talking about the prospect that federal prosecutors in the southern district of New York specifically, they might not necessarily feel beholden to that Justice department policy about a president being off limits from indictment. And now, we have someone who was there when the roots of that Justice department policy was first crafted saying in pretty blunt terms that the opinion formed back then was never meant to serve as the last word on the indict ability of president. And just to put a fine point on it. JT? Smith told us, quote, it would be timely appropriate for the Justice department and Robert Muller to reconsider these shaky policy regarding indict ability of a sitting president I formulated forty five years ago, in this opinion in one thousand nine hundred seventy three JT Smith told us, quote, the durability of this opinion is curious. We all believe that the president can't be indicted because that's Justice department policy that says you can that Justice department policy talking to people there at the outset of what made that policy say that the durability of that idea is curious, and this is shaky policy in his shaky policy that ought to be reconsidered by the Justice department. According to someone who was there at the creation. That's the policy that is supposedly preventing any potential indictment against a president even today. So what do we do with that? Now, especially right now, given what's going on with this president? We've got just the person you would wanna ask about it next. Joining us now is Walter Dellinger. He served our country as head of the office of legal counsel as well as acting solicitor general into President Clinton, fester Dellinger. Thank you so much for being here with us tonight. You are welcome. So it's accepted as as common wisdom in in the news business, and I think in general right now that the president cannot face indictment because of Justice department policy that precludes that as someone who used to run the office that creates that kind of policy at the Justice department. How solid do you see that policy as being, you know, I don't think it's all solid. I don't think you can make categorical judgment of that kind. And you've just added to the notion of how shaky that policy is you're terrific podcast bag, man. That's gift that keeps on giving the seventy three memo Robert Dickson was distinguished lawyer. But it's always I think Missy by me at least as a really shoddy piece of work of that doesn't explain why. When there's nothing in the constitution. You can have a categorical rule against even indicting a president middle. You gotta postpone the trial proceedings while he or she is serving but more to the point. Rachel that memo was essentially repudiated. Nine months later. It was a September Seventy-three memo was repudiated. When the United States filed in United States Supreme court in United States versus Nixon by leeann Joe Warsi, the special counsel, but acting on behalf of the department of Justice said that they did not accept the proposition did not accept the proposition that a president could not be indicted, and indeed a strongly believe that he could be an unindicted co conspirator and did that with regard to to Dixon, and I think the. The the Agnew saga that you if you tell so well in bagman tells us a lot to one of the reasons Agnew resigned was that he was facing criminal prosecution an indictment and knew that he had to give up the vice presidency as the bargaining chip. In terms of sorry. Go ahead, sir. Go ahead. We learned something very important from the anti semitic. Dances said Spiro Agnew did after he left the vice president. So you know, he was allowed by giving up the vice president he was allowed to plead guilty to one charge of a ten thousand dollar fine and unsupervised probation, and that slap on the wrist, which is you tell it was so hard to take on behalf of the the lion. Prosecutor in that case of his severe corruption that allowed him to lead a fairly distinguished life thereafter, and it makes me question. Whether that light a penalty for Agnew was was really worth playing. If it allowed him to to have the kind of role he had with US Saudi so jihad project, and of course, they all these things meshed together Agnew felt compelled to resign because he believed he was subject to indictment. The attorney general was able to bring that pressure to on him only because Nixon did excuse me because Agnew had no reason. Real reason to believe that he was going to be immune from prosecution, it is striking to me to see this top aide to attorney general Elliot Richardson at the time from the time, the Dixon memo was written saying that was never intended to be a definitive pronouncement on indicting president to the extent that that has laid some of the foundation for us believing as a country that that's completely off the question. That's curious. This shouldn't be seen as such something that should be so durable. Either. In the specifics of the Dixon memoir and anything that's grown since. Then. I mean, do you think I mean, absent the politics whether or not this is realistic? Do you think this is something that the Justice department should revisit should Muller or the office of legal counsel, go back out? This question about the indict ability of presidents and vice presidents. I do think they do they should especially. Especially if the if the president would not waive the statute of limitation of for any crimes, Tom might expire during his time of service if you won't do that. Then I think they should proceed to an indictment if the facts of the law warranted and then proceed to prosecution when he leaves office. Remember, no, one disputes that the president can be indicted once he leaves office, and that's only twenty two months out from this term Walter farmer, head of the office of legal counsel acting solicitor General, Sir. We're really really happy to be able to get you here to talk with us about this night. Thank you so much for making time. Thank you. You're welcome. All right. Up next something to watch for tomorrow in the special counsel case against the Trump campaign chairman tomorrow, we are about to get something that is going to be in my estimation, red hot at least something you are definitely going to want to read stay with us. That's next. Today. Former Trump campaign chairman Paul Manafort got a new sentencing date in Virginia. He's going to be sentenced on Friday, March eighth that this is the jurisdiction where Manafort was convicted on eight felony counts of Bank fraud and tax fraud. Prosecutors say the sentencing guidelines suggest a nineteen to twenty four year sentence for Manafort just in Virginia. Now that March eighth sentencing date comes five days before his other sentencing date and the other jurisdictions where he's been charged that sentencing will be less than a week later on Wednesday, March thirteenth in Washington DC in that case judge recently ruled that Manafort broke his cooperation agreement when he deliberately lied to Muller's investigators about important stuff, including his contacts with a man who prosecutors say has active ties to Russian intelligence eek. I should tell you that tomorrow we're expecting to get a detailed sentencing submission from Muller's. Prosecutors in that case we've already seen that in Virginia. That's where we got the nineteen to twenty four year range were expecting the DC sentencing submission from Muller's prosecutors tomorrow now. It will be interesting. I mean, I don't have any inside knowledge. But given what we know about these types of documents. This filing will be narrative. It will be something. You will definitely want to follow the news about whether or not Robert Muller's report is imminent. The sentencing report on Manafort in Washington DC will be something you want to pay attention to. So that's my way of telling you that tomorrow night show is going to be a doozy. We'll see then that does it for us tonight. The legal meadow show, weeknights at nine eastern on MSNBC.

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