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(I should note that the U.S. Attorney’s manual cautions against naming persons as unindicted co-conspirators “[i}]n the absence of some significant justification.” Here, of course, the “significant justification” would exist if a sitting president is the only individual in the country who is immune from indictment. Thus, for that individual alone, the usual better course of indictment would not be available.) Here I want to review each of the half-dozen times that the executive branch has addressed the question of whether a president can be prosecuted, indicted or included as an unindicted co-conspirator. The opinions that conclude that a president cannot be indicted deal mainly with the question of whether a president can be put on trial. While the discussions of the option of indicting but postponing trial are more than a mere afterthought, that option was not the focus of the opinions and received scant analysis. The relevant briefs and memoranda are: The Sept. 24, 1973, OLC Dixon memo The Oct. 5, 1973, brief for the United States in Jn re Agnew The Feb. 12, 1974, memorandum to Independent Counsel Leon Jaworski The June 21, 1974, reply brief for the United States in U.S. v. Nixon The May 13, 1998, memorandum to Independent Counsel Kenneth Starr The Oct. 16, 2000, OLC memorandum These documents are worth review not only for their value as precedent but also for the extensive argumentation they contain on the pertinent issues. 1. The Sept. 24, 1973, OLC Dixon Memo. This memo, signed by the head of the Office of Legal Counsel, Robert Dixon, is a procedural anomaly: It was not addressed to any official and may not have been made public at the time. It was not mentioned in the submission by the solicitor general two weeks later in the Jn re Agnew case. An SP YY Dixon noted that there was no express provision of the Constitution conferring any immunity upon the president. The “proper approach” he wrote, “is to find the proper balance between the normal functions of the courts and the special responsibilities ... of the Presidency.” He concluded that “criminal proceedings against a President in office should not go beyond a point where they could result in so serious a physical interference with the President’s performance of his official duties that it would amount to an incapacitation.” Thus, “a necessity to defend a criminal trial and to attend court ... would interfere with the President’s unique official duties.” Finally, Dixon addressed “a possibility not yet mentioned”: that a sitting president could be indicted but further proceedings could be deferred until he was no longer in office. Unlike placing a president on trial, this would not result in a “physical interference” with the president’s duties. Nevertheless, the memo concludes that this step should not be taken HOUSE_OVERSIGHT_030201