Rudy Giuliani recently went on TV to announce that Robert Mueller assured him that he won’t try to indict the president while he remains in office. According to the president’s lawyer, “They can’t indict. Because if they did, it would be dismissed quickly. There’s no precedent for a president being indicted.”
Actually, there are many top-notch lawyers and legal scholars who say that a sitting president CAN be indicted. According to George Washington University law professor Jonathan Turley, “Nothing in the Constitution bars indictment of a sitting president.”
Turley is of the opinion that an indictment of Trump would be preferable to an impeachment, but these are not the only two options.
Before discussing the options to indictment, however, it is worth pointing out how the conversation has changed over the past year.
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Initially the president’s position was he had done nothing wrong. Now they seem to be admitting he did things wrong, it’s just that he can’t be indicted for his crimes. That is a huge shift in position and shows that the disclosures made over the past year have led to most people believing that Trump in fact did something wrong. This means it is indeed NOT a “witch hunt” but an investigation with real substance.
According to Turley, there is “a long-standing Department of Justice policy that holds that a sitting president can’t be indicted.”
First, of course, the special counsel has to conclude that there’s enough evidence to prove that the President broke the law. If so, the Justice Department’s Office of Legal Counsel decides what to do. In 1973 and 2000 they concluded that “an indictment of a sitting president would be too disruptive to the country.”
Deputy Attorney General Rod Rosenstein doesn’t have to follow those opinions, and if he did, Mueller could still go to court to challenge them.
But a better way to handle evidence of a president’s crimes might be the “unindicted co-conspirator” approach. This has been used in the past.
This would be used if the special counsel indicts a group of conspirators, says the president was part of the conspiracy but brings no charges against him. A special counsel can always delay an indictment. He could wait until the President leaves office and indict him at a later time.
Of course, there is no requirement that someone be charged or indicted for crimes. The special counsel may decide to simply drop all charges. That’s not likely, but is possible. We have to remember we don’t know exactly what is in Mueller’s files.
Another approach, favored by Turley, is that the special counsel refer the case to Congress for impeachment proceedings. He thinks this would lead to a worse outcome for Trump than an actual indictment. “Trump might actually fare better if he’s indicted, and not impeached,” he said. “Even if Mueller does not seek an indictment for constitutional reasons, he could easily do so if Trump is removed from office or after the president completes his term. That sequence would work against Trump’s interests as a criminal defendant.”
The Office of Legal Counsel memos said that “an impeachment proceeding is the only appropriate way to deal with a President while in office.”
But Turley thinks an impeachment proceeding would be bad for Trump because it would hurt his chances at a later criminal trial:
“Not only is the criminal process fairer to defendants, the fact of a prior impeachment proceeding can be deadly for a later criminal defense. Faced with an impeachment, a president must decide whether to testify at the risk that anything he says can be used at a later criminal trial. And there’s the potential that in the course of impeachment proceedings, otherwise privileged or confidential information could become part of the public record and thus accessible to prosecutors in a later indictment.”
“If Democrats regain control of Congress during his presidency, he could face impeachment proceedings during office. Even if he survived impeachment like Bill Clinton, Trump could find himself facing awaiting prosecutors with a ready indictment and detailed knowledge of his defense. The difference would be that his liberty, not just his office, would be at stake.”
Giuliani and Trump may think they are smart by saying that Trump can’t be indicted, but they are not and it is possible that the lack of an indictment by Mueller will increase Trump’s legal jeopardy later on. One thing we know for sure is that Mueller understands every implication of what he is doing and whatever decision he makes will be based on one overriding goal: to find justice.
I am a lifelong Democrat with a passion for social justice and progressive issues. I have degrees in writing, economics and law from the University of Iowa.
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