Donald Trump should not assume he’s above the law. A sitting president can be indicted.
Despite Trump’s proclamation of there still being NO collusion, Democratic Senator, Richard Blumenthal told CNN that if Robert Mueller chooses to…he could indict the President… Veuer’s Chandra Lanier has the story. Buzz60
Donald Trump and Rudy Giuliani would be unwise to assume presidents can’t be indicted. The Constitution doesn’t bar it and Rod Rosenstein could allow it.
Faced with the possibility that his client is criminally exposed on multiple fronts, the president’s attorney Rudy Giuliani recently advanced this argument on behalf of the president: A sitting president, he contends, cannot be indicted. He is wrong, and his client should take scant comfort in this claim.
Giuliani’s assertion comes as President Trump faces at least four allegations of criminal misconduct. He and senior members of his campaign are under investigation for coordinating with Russians to win the 2016 election. There is also substantial evidence that he obstructed justice by engaging in a pattern of conduct aimed at interfering with that investigation and special counsel Robert Mueller’s investigation of his former aide Michael Flynn.
Trump also might have received an illegal campaign contribution from Michael Cohen in the form of a $130,000 payment to Stormy Daniels for her silence about an alleged affair with Trump. And Trump may have knowingly falsified his 2017 public financial disclosure form by failing to disclose his liability to Cohen if, as the president recently acknowledged, that payment was a loan.
Giuliani is relying on 1973 and 2000 opinions from the Justice Department’s Office of Legal Counsel (OLC), but both he and they are mistaken. Subjecting the president to the time-consuming need to defend a prosecution would not, as argued,unconstitutionally incapacitate the executive branch.
The Supreme Court heard similar arguments from Presidents Nixon and Clinton when they tried to avoid potentially damaging proceedings. In Nixon’s case, it was a criminal subpoena for his tape recordings of Oval Office conversations. In Clinton’s, it was a civil lawsuit brought by Paula Jones.
The Supreme Court rejected the presidential blocking moves both times. While a president is entitled to special accommodation, the court has held that a president enjoys no special immunity from court jurisdiction and the legal process while in office.
If in fact a president is so consumed by a legal defense that he or she cannot lead the executive branch, there are other options. The vice president is constitutionally permitted under the 25th Amendment to assume the office when a president cannot perform its functions. If Trump finds himself in a position where he cannot faithfully execute his official duties, he may resign, or invoke the 25th Amendment and step aside temporarily.
Those options, while obviously unpalatable to the president, are consistent with a basic principle of our democracy: No person is above the law.
There is no explicit declaration in the text of our Constitution that provides immunity to the president while in office for crimes that he or she commits. In addition, while the text of the Constitution is silent on presidential immunity, it is explicit on congressional immunity. No member of Congress may be prosecuted for what is said during speech and debate.
Plainly, the Framers knew how to provide for immunity when they wanted to — so their failure to do so for the president strongly implies that they didn’t believe it was appropriate in that case.
The closest the Constitution comes to addressing the matter is Article I, Section 3, which provides that after impeachment and removal from office, an individual “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
This provision does not imply that prosecution takes place only when a president is out of office; it is simply intended to show that impeachment is not the only remedy for presidential crimes.
The opinion that a president cannot be indicted has been rejected by those who have held the solemn responsibility of deciding how to handle potentially criminal conduct by a president. Leon Jaworski, the special prosecutor who took over the Watergate prosecution after Nixon fired his predecessor, Archibald Cox, ultimately asked a grand jury to refer evidence against the president to Congress.
However, that report said the grand jury was “deferring” to Congress’ “primary jurisdiction,” not that the grand jury was powerless to indict.
Furthermore, Congress had already begun impeachment proceedings, so it was clear that another branch of government would seriously grapple with holding Nixon accountable. (In addition, Nixon was named an unindicted co-conspirator in the major criminal prosecution in Watergate.)
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Independent counsel Kenneth Starr also famously reported evidence of possible articles of impeachment against Clinton to Congress. However, Starr’s team concluded that “it is proper, constitutional and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”
That brings us to the ultimate reason that Giuliani and the president would be unwise to rely on the Justice Department policy. Even if Mueller did acknowledge that as special counsel he cannot indict the president, as Giuliani claims, that is not definitive. Deputy Attorney General Rod Rosenstein may give him permission to override that limit.
The special counsel regulations and the authority Rosenstein enjoys as acting attorney general over this matter allow him to make that decision. Because of the legal infirmities of the OLC opinions we have described, that outcome cannot be considered off the table. Then it would be for the courts to resolve, and as we have shown, they have been hostile to similar presidential claims.
Make no mistake — we are not suggesting that the forbearance on prosecution that Jaworski and Starr demonstrated is a bad model for Rosenstein and Mueller. The indictment of our democratically elected leader would be an unprecedented and somber moment for our democracy.
Instead, we are arguing that pursuing an indictment of a sitting president is a last resort that is entirely consistent with our constitutional values and democratic norms. It should be on the table not because it is a perfect option, but rather because it is preferable to a world in which our president is above the law and can engage in criminal conduct with impunity.
Norman Eisen, chairman of Citizens for Responsibility and Ethics in Washington, was chief White House ethics lawyer for Barack Obama. Follow him on Twitter: @NormEisen. Elizabeth Holtzman, a former Democratic congresswoman, Brooklyn district attorney and New York City comptroller, served on the House Judiciary Committee during the Nixon impeachment hearings.
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