Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person's conduct "constitutes a federal offense." U.S. Dep't of Justice, Justice Manual§ 9-27.220 (2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast , a prosecutor's judgment that crimes were committed, but that no charges will be brought , affords no such adversarial opportunity for public name-clearing before an impartial adjudicator .5
The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report , could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President's term , OLC reasoned, "it would be very difficult to preserve [an indictment 's] secrecy, " and if an indictment became public, "[t]he stigma and opprobrium" could imperil the President's ability to govern." 6 Although a prosecutor's internal report would not represent a formal public accusation akin to an indictment, the possibility of the report 's public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining "that the person's conduct constitutes a federal offense ." Justice Manual § 9-27.220.
