Special Counsel Robert Mueller has been forging full steam ahead in his Russia investigation since he was appointed in May after Mr. Trump fired former FBI director James Comey. Mueller has already made four indictments – former Trump campaign manager Paul Manafort, Manafort’s assistant Rick Gates, White House foreign policy adviser George Papadopoulos who pled guilty, and former National Security Adviser Michael Flynn who also pled guilty on charges of lying to the FBI.
‘Special counsel Robert Mueller’s Russia investigation has gathered enough steam that some lawyers representing key Donald Trump associates are considering the possibility of a historic first: an indictment against a sitting president.’
There are some legal experts who maintain that Mueller will be unable to bring criminal charges against Trump. However, it seems that at least two attorneys who are working with clients in the Russia probe think the opposite. These two members of the legal team think it is highly possible that Mueller could indict the president for obstruction of justice.
One of the lawyers went so far as to say:
‘If I were a betting man, I’d bet against the president.’
‘The second attorney, who represents a senior Trump official, speculated that Mueller could try to bring an indictment against Trump even if he expects the move to draw fierce procedural challenges from the president’s lawyers – if only to demonstrate the gravity of his findings.’
This attorney said:
‘It’s entirely possible that Mueller may go that route on the theory that, as an open question, it should be for the courts to decide. Even if the indictment is dismissed, it puts maximum pressure on Congress to treat this with the independence and intellectual honesty that it will never, ever get.’
There has also been an ongoing public debate about whether a federal prosecutor can actually indict a sitting president. Several attorneys who have been involved in the Russia investigation are enjoying following this debate through online op-eds and on Twitter. One of them even said:
‘It’s so much fun!’
If Mueller were to successfully indict Trump, he would be setting a legal precedent which would be huge in the history of the United States. According to POLITICO:
‘Several legal scholars say an effort by Mueller to initiate a case titled U.S. vs. Trump would, at a minimum, likely move quickly to the Supreme Court. There is no legal precedent for an indictment of a president — only a pair of Justice Department legal opinions, from 1973 and 2000 — saying it is not a viable option.’
The legal opinion given in 2000 said that the indictment or criminal prosecution of a sitting president “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Although independent counsel Kenneth Starr did not indict former President Bill Clinton, he did file a damaging report with Congress in 1998 and definitely strongly considered it an option. Starr’s legal adviser, Ronald Rotunda, wrote in a 1998 memo:
‘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.
‘In this country, no one, even President Clinton, is above the law.’
Rotunda explained in an interview though that Mueller has a different legal status than independent counsel Kenneth Starr. Starr’s powers were spelled out by a statute that expired in 1999. Rotunda went on to say that Mueller’s powers are different – powers of a U.S. attorney – and he must follow all Department of Justice “rules, regulations, procedures, practices and policies.”
Paul Rosenzweig, another former Starr deputy, wrote:
‘If we know anything about Mueller, we think we know that he follows the rules—all of them. Mueller will not indict Trump for obstruction of justice or for any crime. Period. Full stop. End of story. Speculations to the contrary are just fantasy.’
Still, there are attorneys working for Mueller’s team who wouldn’t so swiftly conclude this is the case. POLITICO reported:
‘One of the Russia defense attorneys also suggested what he called a “jujitsu move”: naming Trump as an unindicted co-conspirator in a larger obstruction of justice case that targets one or more associates.
‘Whatever Mueller and his deputies have planned, the attorney said, it is not likely to be anticlimactic.’
Here are some thoughts from Twitter:
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