Memo Discusses Legal Strategy for Potential Indictment of President and Vice President Amid Statute‑of‑Limitations Concerns

because of the reputational damage to the president: “The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.” Of particular interest is the memo’s consideration of whether criminal proceedings against a vice president are precluded. OLC found this to be a difficult question before concluding that a grand jury could indict the vice president. The memo notes that Vice President Spiro Agnew was said to be part of a conspiracy and that it would be difficult to have a proper indictment of co-conspirators without including the vice president (a point also true of a conspiracy involving a president). Moreover, Another circumstance counselling prompt presentation of evidence to the grand jury is that the statute of limitations is about to bar prosecution of the alleged offenders with respect to some or all of the offenses. The problem presented by the statute of limitations would be avoided by an indictment within the statutorily specified period. (The issue of statute of limitations arises as well in cases involving a president.) The Dixon memo concludes that “[a]fter indictment, the question of whether the Government should ... delay prosecution until the expiration of the Vice President’s duties involves questions of trial strategy” beyond OLC’s expertise. The conclusion that the sitting president should not be indicted was not necessarily a categorical constitutional-judgment conclusion but seems, rather, to be a balance of policy considerations. That, it appears, is how it was read by the office of Special Prosecutor Leon Jaworski—as I will describe below. 2. The Oct. 5, 1973, Brief for the United States in In re Agnew. Lawyers for Vice President Spiro T. Agnew argued that if a president could not be indicted while in office, that same immunity should apply to a serving vice president. The vice president should have the same immunity as the president, they wrote, because he “must maintain himself in a state of constant preparation to replace the president.” And as the official with responsibility for initiating the 25th Amendment removal process, he must “continuously ... monitor the ability of the President” to discharge his duties. These responsibilities, they argued, were incompatible with being a defendant in a criminal case. Agnew’s civil action, moreover, sought to enjoin the grand jury from even “conducting any investigation” into the allegations against Agnew as well as precluding “issuing any indictment.” The United States, in a response filed in U.S. District Court for the District of Columbia by Solicitor General Robert Bork, opposed any immunity from criminal process for a vice president. The solicitor general did inform the court, however, that if the grand jury were to return an indictment, the Department of Justice “will hold the proceedings in abeyance for a reasonable time, if the Vice President consents to a delay, in order to offer the House of Representatives an opportunity to consider the desirability of impeachment proceedings.” What was critical, according to Bork, was this: “The issuance of an indictment ... would in the meantime toll the statute of limitations and preserve the matter for subsequent judicial HOUSE_OVERSIGHT_030202