Trump Can and Should Be Indicted
President Trump makes a statement to the press after a meeting with
governors-elect in the Cabinet Room of the White House December 13, 2018, in
Washington, DC.
Brendan Smialowski / AFP / Getty Images
By Marjorie Cohn, Truthout Published December 17, 2018
Part of the Truthout Series
Human Rights and Global Wrongs
As evidence of law breaking by Donald Trump continues to emerge,
commentators are speculating about whether a sitting president can be
indicted. The Department of Justice has twice opined in the negative -
during both the Nixon and Clinton administrations. But nothing in the
Constitution would prevent Trump from being criminally indicted while he
occupies the Oval Office.
Trump is apparently implicated in at least three federal criminal
investigations. Special Counsel Robert Mueller is examining violations of
campaign finance laws in connection with Trump Tower Moscow. Prosecutors in
the Southern District of New York have documented campaign finance
violations stemming from hush money paid to Trump's alleged paramours in
order to influence the presidential election. And the New York US attorney's
office is analyzing whether Trump's inaugural committee received illegal
payments for presidential access and policy influence.
State lawsuits and investigations also spell legal peril for Trump.
Attorneys general in Maryland and Washington, DC, have issued subpoenas in a
lawsuit alleging the Trump Organization's business dealings violated the
Emoluments Clause. Located in Article I, Section 9 of the Constitution, the
clause prohibits US officials from receiving anything of value from foreign
governments, including foreign government-owned businesses, without the
approval of Congress.
And New York officials are reviewing possible income tax fraud by Trump and
the Trump Foundation.
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Moreover, Trump's former lawyer Michael Cohen; longtime Trump ally David
Pecker, head of American Media Inc.; and Allen Weisselberg, chief financial
officer of the Trump Organization, are providing information to Mueller that
could incriminate the president.
A Sitting President Can Be Indicted
The Constitution provides for impeachment of high government officials for
treason, bribery, or other high crimes and misdemeanors.
"Nothing," however, in the "text, structure, or history" of the
Constitution, or Supreme Court precedent, prevents the indictment of a
sitting president, according to Harvard law professor Laurence Tribe.
Yet Trump lawyer Rudy Giuliani told "Fox & Friends" that Mueller's office
had informed former Trump attorney Jay Sekulow that the special counsel did
not have the power to indict a sitting president.
If Mueller did say that, he would likely be relying on two memos from the
Department of Justice's Office of Legal Counsel. During both the Richard
Nixon and Bill Clinton administrations, the Office of Legal Counsel took the
position that sitting presidents are immune from criminal prosecution for
policy reasons, if not constitutional ones.
But in 1974, Watergate Special Prosecutor Leon Jaworski's office concluded
that "the Framers did not specifically provide for Presidential immunity
from indictment."
And a 1998 memo from independent counsel Kenneth Starr's investigation of
Clinton says a president can be indicted for criminal activity: "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."
Some legal scholars argue that the Constitution provides the remedy of
impeachment for a law-breaking president, who can only be charged with a
crime after he leaves office.
The Jaworski memo, however, notes that while impeachment is a "political"
process that does not require the commission of a felony, the criminal
justice process exists for a different purpose: "to prosecute crimes with
reference to an apolitical code applied objectively to all citizens."
Furthermore, the Jaworski opinion points out, "the disruption caused by
indictment and trial of the President would be no greater, and possibly
less, than that caused by the impeachment process," which "promises to be a
terribly drawn out, divisive, and possibly inconclusive process . on a
variety of less distinct charges."
Although the Supreme Court has not ruled on whether a sitting president can
be criminally indicted, it held in the 1997 case of Clinton v. Jones that a
president could be the subject of a civil lawsuit while in office. The high
court stated that although a federal court's judicial process "may
significantly burden the time and attention of the Chief Executive," that
"is not sufficient to establish a violation of the Constitution." If such a
"burden" is acceptable when it comes to civil matters, it seems clear that
it should be acceptable when there are serious allegations of lawbreaking
against a sitting president.
Office of Legal Counsel Won't Prevent Indictment of Trump
The Office of Legal Counsel memos stating that a sitting president is immune
from criminal prosecution do not necessarily protect Trump, according to
some legal experts.
"The justifications underlying the general practice of treating [Office of
Legal Counsel] opinions as binding on executive branch officials do not
necessarily apply to the Office of Special Counsel, which is supposed to be
insulated from the influence of political appointees when assessing the
president's exposure to criminal liability," Harvard law professor Andrew
Crespo wrote at Lawfare blog. The Office of Legal Counsel memos, Crespo
noted, were written by presidential appointees beholden to the president.
Neal Katyal, solicitor general in the Obama administration, says the Office
of Legal Counsel opinions may not prevent Trump from being indicted because
they "don't necessarily apply to a circumstance in which the actual crime
may have involved him obtaining the presidency in the first place."
"Nothing in the Constitution prevents [Trump's] indictment for directing a
criminal conspiracy to steal the presidency," Tribe wrote in a December 10
tweet. "Certainly not a DOJ [Department of Justice] policy."
Indeed, the DOJ's Office of Legal Counsel has issued other opinions that
twisted the law to support presidential policy. As I testified before the
House Judiciary Committee's Subcommittee on the Constitution, Civil Rights,
and Civil Liberties in 2008, the Office of Legal Counsel during the George
W. Bush administration purported to justify torture in opinions that flew in
the face of the Convention Against Torture and the US Torture Statute.
Statute of Limitations Could Prevent Later Indictment
There is some urgency to Trump's potential prosecution. The statute of
limitations for campaign finance violations is five years, which means
charges for which Trump may be implicated would expire in 2021. If he is not
reelected, Trump could be prosecuted on January 20, 2021. But if he is
elected to a second term, Trump would either need to waive the statute of
limitations (pursuant to a plea bargain) or Congress would have to extend
it. Although the House of Representatives controlled by the Democratic Party
that takes office in January may vote for an extension, it is unlikely the
GOP-led Senate would follow suit. In any event, Trump would veto such
legislation.
Delaying a criminal trial would "increase the danger of prejudice resulting
from the loss of evidence, including the inability of witnesses to recall
specific facts, or the possible death of a party," as the Supreme Court
cautioned in the Clinton v. Jones civil case.
If Trump Isn't Indicted, He Could Be Named Unindicted Co-Conspirator
"If Mueller decides he shouldn't indict @POTUS in DC," Tribe tweeted, "the
US Attorney for SDNY might give thought to doing so in NY. He has the
evidence now."
But if neither Mueller nor federal prosecutors in New York ask a grand jury
to indict Trump, they could request that the president be named an
unindicted co-conspirator in an indictment of other individuals.
There is precedent for this course of action. In 1974, a grand jury indicted
seven associates of Nixon for the cover-up of the Watergate burglary. At
Jaworski's request, the grand jury named Nixon as an unindicted
co-conspirator.
Ultimately, if Trump isn't indicted, he may not be able to refuse a subpoena
to testify before a grand jury by claiming the privilege against
self-incrimination. He could not incriminate himself due to his alleged
immunity from prosecution.
Richard Painter, chief ethics attorney in the George W. Bush administration,
said on MSNBC that Trump's only chance to protect himself and his family
from legal jeopardy is to strike a plea bargain with prosecutors. "Donald
Trump is in serious trouble," Painter stated. "His lawyers ought to be
telling him to negotiate a plea deal. Get him out of the White House. Have
him resign, plead guilty to lower charges and let's move on as a country."
If Mueller does pursue indictment, Trump would likely prevail upon his new
attorney general to fire Mueller or constrain his actions. But under the
regulations, an attorney general must give "great weight to the views of the
Special Counsel" and could only deny Mueller's request if "the action is so
inappropriate or unwarranted under established [DOJ] practices that it
should not be pursued." If that occurs, the attorney general must report and
explain his or her actions to the Senate and House judiciary committees. The
Democratic Party-controlled House Judiciary Committee could then choose to
make that report public.
The Constitution does not prohibit indictment of a sitting president. Will
Mueller recognize this reality in his actions going forward?
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