That *would be* vs. that *is* unconstitutional

[AndJusticeForSome]

The wording is awkward and imprecise.

The wording would be correct if Mueller were saying that the DOJ policy *is* unconstitutional.

Otherwise, the wording would have been "that *would be* unconstitutional" (to charge a sitting president).

[elleng]

1. OLC:The indictm ent o r cnm inal prosecution of a sitting President would unconstitutionally

undermine the capacity o f the executive branch to perform its constitutionally assigned functions.

https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf

as stated in OLC memo.

[AndJusticeForSome]

2. Yes; but the wording he used is not correct

The stand-alone sentence is: "That IS unconstitutional."

What is?

[elleng]

3. 'In 1973, the Department concluded that the indictment or criminal prosecution

of a sitting President would impermissibly undermine the capacity of the executive
branch to perform its constitutionally assigned functions. . .

We believe that the conclusion reached by the Department in 1973 still represents the best interpretation
of the Constitution.'>>>

[eleny]

4. Wouldn't the courts be the final word on the constitutionality of the department's decision?

At this point it seems like it's just the department's opinion.

[elleng]

5. Yes, and yes,

but as an employee OF the department, he correctly determined he had to comply with it's 'opinion.' Others might not do so, in this and/or other circumstances.