So here’s a novel idea for Congress—it can legislate. It can, and should, enact a statute with two basic provisions: (i) henceforth, a sitting president may be indicted; and (ii) in the event that the Department of Justice nevertheless declines to charge a sitting president, then any period of time during which the president serves in office shall not count toward the running of the statute of limitations for offenses with which he could be charged.
The OLC opinion itself is ripe for a legislative fix. Even in 1973, the arguments for conferring a sitting president with absolute immunity from indictment were quite insubstantial. OLC itself acknowledged that neither the text nor history of the Constitution actually provides any such protection. Indeed, the 1973 opinion was principally focused on whether a sitting vice president could be indicted—the opinion was prompted by the Spiro Agnew Investigation—and concluded that he could be. Seemingly as an afterthought, OLC concluded that a “balancing” of costs and benefits tipped against indictment of a president because such criminal proceedings would “unduly interfere in a direct or formal sense with the conduct of the Presidency.”