The Office of Legal Counsel (OLC) has issued an opinion finding that "t he indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions" in violation of "the constitutional separation of powers." 1 Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations , see 28 U.S.C. § 515;28 C.F.R. § 600.7(a), this Office accepted OLC's legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC's constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct. 2
Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President's term is permissible. 3 The OLC opinion also recognizes that a President does not have immunity after he leaves office. 4
HTH.
Cheers,
Scott.