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1] Acting AG Matthew Whitaker went on record yesterday before Congress on the DOJ's policy to not indict a sitting president, saying: “That is still the policy of the Department of Justice." We hear that a lot. But does that really preclude an indictment of a sitting president?
2] Some background: There are 2 kinds of agency regulations: (1) substantive rules, and (2) interpretative rules, general statements of policy, or rules of agency organization, procedure. Chrysler Corp. v Brown, 441 U.S. 281.
3] A substantive or "legislative-type rule" is affects individual rights and obligations. The Supreme Court has explained that only these types of rules have the force of law. @Tom_Winter
4] Federal law authorizes an Executive department head to create regulations for the government of his department, employee conduct, and performance of its business. 5 USC § 301. The Supreme Court has called this a "housekeeping statute."
5] Courts have concluded these regulations are internal rules intended solely to guide the Attorney General and other Department personnel. US v. (Paul) Manafort, 312 F. Supp. 3d 60. @JillWineBanks
6] U.S. Attorney's Manual: "provides only internal DOJ guidance" and "is not intended to, does not...create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal." US v. Lee, 274 F.3d 485. @BarbMcQuade @NBCNews
7] This statement puts criminal defendants on notice that they lack enforceable rights in DOJ policies and procedures." US v. Lee, 274 F.3d 485. So, even violations of Manual policies by DOJ attorneys or other federal prosecutors afford a defendant NO enforceable rights.
8] Criminal defendants often try to challenge their own prosecutions alleging violation of USAM or DOJ policies. They are often unsuccessful.
9] In the Manafort (DC) case, the Court observed that even the Special Counsel Regulations are just internal "rules of agency organization, procedure, or practice," and not substantive rules that affect the rights and obligations of individuals outside the DOJ. @NBCPolitics
10] While Whitaker agrees it is "DOJ policy" not to indict sitting president, what if one of the 93 US Attys decided to violate that internal regulation? What if US Atty. for the Dist. Virgin Islands decided to indict? (assuming crime + jurisdiction, and just hypothetically).
11] I may be missing something but DOJ policy is not an impenetrable force field, nor does it invalidate a prosecution. I could be wrong, but does it not really matter what DOJ policy is on indicting the president? A unique situation. @NBCLatino
