Impeachment will never happen so long as we have a Republican Congress. And Mueller knows this. I hope he is closer to proving Treason, money laundering and collusion with Russia.
And who knows, he may be finding out that Pence was also involved when he said he knew nothing about Flynn's meetings with the Russians. It is hard to believe the Pence was kept in the dark. If Pence lied, then there goes one of those subpoena's that Mueller obtained in Virginia.
And it sounds to me as if Nunes and Ryan are colluding as well.
I cannot believe that this plot is still thickening.
It will make a great documentary on PBS.
7
As the wheels of justice grind closer to Trump, this vile, shameless liar seems ready to destroy the public faith in our government to evade his crimes. This may be the lowest, and perhaps the last, chapter in the history of our republic as we know it.
4
I'm not sure I agree with Mr. Katyal. The hurdles for a successful impeachment are too high. Whether or not Trump can be pressured to resign, is another story.
Let's say, as sitting president, that he indeed cannot get indicted. But his son Don Jr. and his son-in-law Jared can. Let's hope they get charged by the State of NY and not the federal government, so they cannot be pardoned by the wannabe dictator or even (shudder) Mike Pence.
Even this may not compel Trump to resign - he seems to be the type to be perfectly happy to thrown Don Jr. and Jared under the bus. But, at least it would be something, and a stain on his family for all to see.
2
Great article. Reminds me of the legend of the Gordian Knot. When Alexander couldn't untie the know, he simply drew his sword and cut it in half. In short, he couldn't succeed by following the rules, so he made a new rule and conquered Asia. The arguments made in this essay are valid only insofar as the Trumpers are willing to obey the laws of the land. They do not appear to be so inclined. Watch for them to cut the knot. I fear for the future of the republic.
2
Never forget: Mueller was Director of the FBI and oversaw the "Fast and Furious" campaign that flooded Mexico with American-sold weapons. His idiocy in that spectacular scandalous failure and his defense of the NSA's continuing warrantless wiretapping should have prevented his ever having a job in government again.
1
The only so-called perjury trap is the result of Mr. Trump's own inability to tell the truth, even when he really should.
Two opinions that a sitting president cannot be indicted must be considered along with other opinions that a sitting president can be indicted.
Either way, we deserve to know the truth about Russia and about Trump's actions during the campaign.
1
Whenever Trump's crimes and the potential for indictment are discussed in the media, there is a fairly consistent failure to mention an aspect of the crime that is of grave import.
While we don't want a murderer sitting in the White House, the crime that should determine his absolute removal from office and indictment is the one that blatantly and directly undermines or affects the People's right to choose its representatives. Should an official be removed and indicted for corruption and illicitly pocketing profits? of course. For groping women or rape, of course. But this crime, of all crimes--the one that directly seeks to impede the very Democracy that the President of the United States is obligated to protect and hold dear above all others demands a removal from office with little ado. This is the betrayal and breach of contract with hundreds of millions of us. We pay taxes to a democracy--the President should be allowed not one speck of activity to undermine it in an election. Let's get THAT message to the the GOP Congress. The People demand protection of democracy, and a President who does not comply must be punished for the ages.
7
I am a criminal defense attorney. It has been repeatedly made clear to me that Justice Department policy is not law. Nothing in the US Attorney's Manual is binding on the Justice Department. The cited opinions were made in the abstract, meaning that in the worst case, the Nixon Administration at the time, the country would survive having a crook for a president. Not so now.
Also, as Lawrence Tribe noted and Katyal does too, would a sitting president be able to get away with murder? Could he shoot Melania and just go back to tweeting? The entire premise is misguided. Look at Netanyahu. Look at Charles I. This is not the way that civilised societies operate. Either the rule of law applies to everyone, or it applies to no one.
3
"Either the rule of law applies to everyone, or it applies to no one."
That's a ridiculous oversimplification. The US Constitution mentions impeachment and trial several times. You should note, in particular, this paragraph:
"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." (Art. I, Sec. 3)
3
Faced with indictment or impeachment Trump is not like Nixon. All his life he have refused to accept legal limits on his actions. His response will be to seek to evade the law and the Constitution provoking a Constitutional crisis. His fanatical followers are already forming militias, stockpiling arms and training for civil war.
3
To believe that the president is above the law is nonsense. If that belief were true, then immediately after taking office, the president could begin breaking the law and held harmless. Provided the Congress chose to abdicate its responsibilities (as it is currently doing), then what prevents a president from ever being held accountable? Did the Founding Fathers believe that the citizens would then have no choice but to sit around and fear the lawlessness for four years until the president could be voted out of office? I doubt it.
But, take it one step further. If an elected president broke the laws to initially get elected, then what would prevent him for repeating the process in the next election? Essentially, he would be committing criminal acts to get both elected and re-elected. One needn't be a constitutional scholar to determine that Founding Fathers never would have approved that.
2
Not that I think Trump can't or shouldn't be indicted, it is nonetheless difficult to imagine how an orderly criminal justice process plays out if Trump is, indeed, indicted: the filing of a formal charging indictment and public announcement thereof, defense motions ad nauseam, setting a trial date, jury selection, the trial process, and so on.
Seeing Trump sit in a courtroom day in and day out would be enough spectacle itself.
Please be correct. Please?! Now! I cannot bear this lunacy any longer.
One only needs need to look toward the end of Caligula’s reign for hope.
2
One angle I have never seen discussed is the possibility of civil forfeiture. The president may be immune, but his assets are not. If it is determined that his assets are the result of money laundering and other criminal activity, wouldn't Mueller be empowered to sue for forfeiture? And since the assets, not Trump himself, would be targeted, they would not be immune, nor could Trump pardon them. It seems that would be a potent weapon Mueller could wield to obtain Trump's cooperation and admission of wrongdoing for Congress to do with as it sees fit.
6
How was “cahoots” defined in your regulations?
2
How can anyone who has witnessed Trump's behavior over the past year and a half, not conclude that Donald Trump is the most corrupt and dangerous President to achieve Elected Office.
Make no mistake this titanic struggle will have one big winner and one big loser. If Trump wins (doesn't get impeached and sent to jail) then America loses. It loses ALL credibility regarding the principles of rule of law. It will also lose all its Allies and influence. Indeed its in the process of doing so.
Then what? As, is already happening, China will fill the void with its Authoritarian leadership.
Think that's good for America or the world? Consider its treatment of Tibetans and Uyghurs. Or other Chinese in Hong Kong and Taiwan. Or the way it has unilaterally declared that it "OWNS" the South China Sea.
When China achieves critical mass it will rule with utmost ruthlessness.
Trump is currently in the process of destroying the Western Alliance which is the foundation of the world economy and an American led free world.
If Trump prevails, that is all lost. When I see American's support for this deeply dishonest and dangerous President I shake my head in disbelief. They are supporting a man that will ensure the collapse of American hegemony. Of that you can be absolutely certain.
7
"No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience of the law is demanded; not asked as a favor." Theodore Roosevelt.
"The very essence of a free government consists in considering offices as public trusts, bestowed for the good of the country, and not for the benefit of an individual or a party." John C. Calhoun
"All that is necessary for the triumph of evil,is that good men do nothing." Edmund Burke
Therfore, it is now very apparent the concept that, no man is above the law, is in serious jeopardy.
3
Even if Mr. Mueller handed our current Congress irrefutable grounds for impeachment today, I have no doubt they would be incapable of drafting articles of impeachment before being booted out of office because the bifurcated Republicans in Congress are good at just two things, doing nothing and collecting paychecks for doing nothing.
4
many other policies, traditions and guidelines have been thrown out the window by this "president" - why should we not also throw out the policy of not indicting a sitting president?
3
Thanks Mr Katyal. It’s nice to be able to read something on the Opinions page written by someone who knows what he’s talking about. Has Trump tried to recruit you yet?
4
If the facts show a crime that is a security threat to the Country, an indictment and trial maybe the only remedy under the Constitution. There is sufficient evidence for probable cause of several felonies already by Trump and many in the transition. Conspiracy leads the list.
But there is no reasonable doubt standard in the impeachment proceeding and no real protections for the accused. But in a criminal indictment setting the rule of law and all the rights of the accused are in play.
In the criminal setting facts and the rules of evidence are really what convicts criminals. Here, it is those pesky facts that hopefully will prevail.
4
"If indictment is off the table then impeachment must be on the table. If impeachment is off the table, then indictment must be on the table..." Seems pretty clear that either way Trump et al will go down for their crimes. I can't wait! JAIL-TO-THE-CHIEF indeed.
7
The ultimate power in a functioning democracy rests with the average voter. The question remains; will they choose to exercise it? A 54% turnout, as in 2016, doesn't quite cut it. Elections do have consequences. Vote.
21
First, I am am very, very curious to know why so many otherwise intelligent attorneys are echoing the manifest sophistry that a sitting president cannot be indicted.
1. The argument that a sitting president cannot be indicted is unfounded in precedent, ahistorical illogical and nonsensical contrivances by Department of Justice shysters contorting constitutional law to protect their then sitting presidents. Not a word in the U.S. Constitution says that a president is an immune sovereign (i.e., royal monarch) or that a president is above all state and federal criminal laws.
2. It is inconceivable that the drafters intended to expose a sitting president to civil litigation but no criminal prosecution. Such a fantastic notion flatly contradicts the Founders' express intent to establish a polity governed by the rule of law.
3. There is nothing to prevent a grand jury returning an indictment, especially under state law in a state system. The Department of Justice "rulings" are not binding upon anyone other than subordinate officials within that department. Rulings do not even have the full force of duly enacted regulations, much less statute.
4. If a court somehow determines that the prosecution a sitting president is contrary to public policy, the proceedings can be stayed.
5. If a sitting president could not be prosecuted, he would be immune from prosecution for crimes barred by a statute of limitations that expired during his term of office.
15
I quote Mark Slackmeyer, radio host of Doonesbury fame, when opining about the Watergate hearings: "Guilty! Guilty! Guilty!"
If he is not he would welcome the investigation that would surely prove his innocence.
t rump and his entire party know that the election was indeed rigged and they benefited from that rigging. The entire government that they lead is illegitimate and they fear what that revelation will do to their future prospects of turning US into the fascists States of America. Or Dumnassistan.
I wish to take this moment to remind anyone reading this: Had democrats turned out to vote in 2010 to help the President they had elected two years earlier, instead of sitting home patting themselves of the back for getting Obama elected, We the People would not be in this gerrymandered pickle; t rump would not be president, he might even be in prison; and the U.S. wouldn't be one misstep from going down the drain.
13
To claim that a traitor can't be judged and imprisoned for treason in America, no matter who that person may be is tantamount to stating that America is doomed as a nation. The Republican Party must be annihilated in all of the upcoming elections to remove not only Trump but all other traitors from office.
17
There is no PRECEDENT for indicting a sitting president, simply because there has been no need to. Once the Office of the Special Counsel delivers the results of their investigation – which I have absolutely no doubt will provide airtight evidence of many indictable crimes, including Fraud, Money Laundering, Obstruction of Justice, Colluding with a Foreign Adversary (i.e. Treason), Spoliation (destruction of evidence), ... Tax Evasion... etc etc etc... a list of “High Crimes and Misdemeanors“ as long as your arm... it will then be up to Trump and Congress: will he resign, and THEN face indictment(s!)... will Congress willfully overlook his crimes and refuse to impeach, convict, and remove him? Any way you slice it, Trump is the barking dog that finally catches the car bumper. Resign? Get impeached and removed? (And THEN indicted?)
Trump is motivated by one thing; “getting away with it.” He will continue to commit ever-greater crimes until he is forced to stop. What the machinations of that are, no one can know for sure, but it will end badly for him. He will undoubtedly self-immolate. The only question is... will we allow him to burn the nation down with him.
14
Trump is president, not king. He serves under law, not above it.
14
"Mr." Trump, "Mr." Giuliani, "Mr." Mueller. This tells readers what they're reading.
A sitting president can be indicted for treason and obstruction of justice. No one is above the law.
PROSECUTE RUSSIAGATE!
6
Can we just say that Mr Katyal's clear explanation of the rights of the President vs the obligations of a Special Prosecutor are much clearer than Guliani's nonsensical ravings?
17
I wonder if it is time for the NYT to convene a panel of its legal commentators and reporters who are working on this story to revisit the facts (as known) of the possible obstruction of justice charge. Everything I've read from legal scholars and reporters seem to conclude that it is weak due to the evidence needed for intent, and most prosecutors are loath to proceed with weak cases. Which would mean that the remaining indictable offenses might be of money laundering, for which little seems to be known.
4
Of course, no one really knows whether the evidence is weak or strong, because Mr. Meuller is running the tightest of ships - unlike the White House. It would be a serious mistake for anyone to make any assumptions regarding the evidence of which the Special Counsel is in possession until the investigation is concluded and the report is made public. Speculation is all anyone outside this investigation has, until it's complete. Speculation about evidence, ain't evidence. I'll wait, thanks.
Isn't a president who is above the law like a king? This goes against everything our Founding Fathers stood for. The American people must rethink, or learn about, who we are as a nation, as well as educate themselves about our early history. To deny that is committing suicide and I am afraid this is what is happening now.
5
Trump was elected under conditions where no voter was aware of the items that would be in an indictment. Trump's line was that Mrs. Clinton was an unindicted criminal and that if elected she would be jailed. That would require an indictment. If Trump agreed that a President Hillary Clinton was in a position to suffer indictment (and trial and conviction and sentencing), he lost the argument before he was elected.
13
Can someone tell me in simple terms why scholars believe U.S. presidents are immune from indictment for the duration of their presidency?
7
Mr. Katyal writes "[i]f congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment."
I don't think that is an "if" anymore. Congressional leadership is currently criminally negligent in its oversight duties to the point where Speaker Ryan and Chairman Nunes have essentially admitted their own guilt in the underlying high crimes and misdemeanors that Congress should be investigated.
9
Interestingly, some of the problems associated with federal efforts to call Trump to account and prosecute him, don't apply to state prosecutions. New York particularly, where he has been well-known and reviled for years... If one is a New Yorker looking for a silver lining, consider that even if the legal process prevents incarcerating him in federal prison (God wouldn't have made inmate jumpsuits orange if she hadn't meant for Trump to occupy one), at least he'll have to avoid New York State like the plague not to end up in state prison. Not a perfect solution, but some solace to us New Yorkers who know this foul excrescence well.
10
Another failed strategy for Democrats. Instead of owning up to their seemingly endless shortcomings they adopt the Republican strategy of attacking the President with no plans of their own.
Fix our predatory healthcare system? NO
Address growing wage inequality? NO
Fight for equitable funding for education? NO
Rein-in an out of control and corrupt finance industry? NO
Lets just laugh at Trump's ignorance and point out how much smarter we are.....
If progressive people don't have the courage or forethought to dump the do-nothing Democratic Party, then we have nobody but ourselves to blame for the ongoing train wreck.
4
Unfortunatley it was people with your attitude who made the election of Trump possible.
2
You do understand that Republicans have had the majority in Congress since 2010, yes? And so, it is Republicans who have failed to accomplish any of the items you noted? And, it is Republican strategy that has failed?
3
I have spoken out strongly against trumpty because of his lies, probable criminal activities (including financial and alleged rapes), and the hateful policies he has pushed upon our republic. While I do hope that Mueller's investigation produces clear-cut, undeniable proof of trumpty's financial crimes as well as illegal campaign shenanigans, I am not holding my breath that such proof will result in him being impeached, indicted, or imprisoned. Why? Because it is very clear that the GOP is so guilty themselves and his base is so willingly misinformed that no matter what unassailable proof is provided, it will all be swept aside with claims of witch hunt, fake news, and alt facts. This is what many others have said and I believe it is what will happen. So the best option is to register our youth and all the others who don't vote, to vote in November. Let the ballot box be the referendum against trumpty and the GOP. I know the Dems are not coming out with a strong message, and shame on them for not stepping up, and I also know the Dems have some tough battles to retain Senate seats, but the message needs to be trumpism is not working for the majority of Americans; A Better Way Forward. Winning in November then shackles the GOP for the next 2 years and in 2020 trumpty will either choose not to run or be soundly defeated. If trumpty were removed via Mueller from office we'd end up with Pence and "Mother" in the WH. The base will not change, for the most part. Focus on voting.
8
The three most dangerous words I have ever heard from a president (uttered a few weeks ago and seemingly unnoticed by the press): "my Justice Department".
15
Mr. Katyal provides a technical explanation of the process to indict a sitting president under seemingly convoluted rules of Justice. The question that arises, as an ill-informed lay person not schooled in federal and constitutional law, is, 'why the questions raised by technical arguments are not referred to the SCOTUS? I would think that a complicated question of federal law that touches on the separation of federal powers under the constitution is fair game for a referral and opinion of the SCOTUS?
Mr. Katyal, who authored legal rules subject to contradictory opinion, explains the path of indictment of a siting president. Paul Manafort's indictment should be construed in context of his role and position within and under President's Trump authority. If President Trump gets away with Russiagate and obstruction of justice allegations on legal technicalities, a second term in office will likely follow and historians will have an unequivocal demarcation point that confirms the decline of the American empire.
5
"why the questions raised by technical arguments are not referred to the SCOTUS?"
First, the glib answer: The US Supreme Court is not a law firm.
Now, the serious answer: Courts hear legal cases, so there needs to be grounds for legal action. In particular, there needs to be a party with standing to file a lawsuit or a defendant who has been charged with a crime. Therefore, the Justice department would have to actually indict the President, so that there would be a case before a US District Court.
Note that the US Supreme Court is an appeals court, so it does not usually hear cases that have not already been tried in a District Court.
For more, Google "federal court system".
4
The article describes an indictment as the prerogative of Mr. Muller. But the grand jury is an independent body, presided over by an independent judge, and the grand jurors decide whether to hand down an indictment by their own vote.
The Federal Rules of Criminal Procedure do require that an indictment be signed by a government attorney. But all government attorneys are prohibited from signing any indictment of a sitting president by virtue of a Department of Justice policy. That policy does not have the force and effect of law and is binding only upon DOJ personnel — not the grand jurors or the judge.
The combination of the procedural rule (Rule 7(c)(1)) and the DOJ policy would effectively grant a general immunity from federal criminal charges to all presidents and nullify the grand jury process. As far as I know, neither the Attorney General nor the DOJ has the authority to do any of that on a broad basis.
This situation is analogous to the DOJ attorneys being unavailable, as in a conflict situation. The presiding judge has the authority, under Rule 57(b) of the same Federal Rules of Criminal Procedure, to manage the process. The court could solve this procedural problem by appointing a substitute for Mr. Muller from outside the DOJ, or simply dispense with the signing requirement. Either course would allow the grand jury to complete its work and an indictment of the president to be handed down in open court — if the grand jury voted to do that.
5
This was an excellent and clarifying opinion piece. The key distinction -- at least theoretically -- seems to be this. It is not reasonable to indict a sitting president for public policy issues. For example, if a president decides to cut funding to public schools, individual students should not be able to sue him personally. That makes sense; otherwise the president would be at the mercy of every single person who is affected by every single law, and would have no time to govern. But if a president is making illegal actions in his personal capacity, particularly with respect to his own office, he should not be immune from prosecution. In this case, Trump's choice to hold onto all his businesses is another thing that can and should expose him to prosecution. He has repeatedly made foreign deals that are favorable to him and to Jared Kushner, demonstrating almost unmitigated corruption. In this sense, it is Trump -- by constantly mixing the personal and the political -- who is exposing his personal financial choices to indictment. He cannot then turn around and use the shield of the presidency to hide him from those personal choices.
6
Could we have a strong country without so much power invested in a single individual, i.e., POTUS? In responsible hands, perhaps the power is OK but now we are seeing what happens when Trump or someone like him gets the power.
It's time to re-evaluate and adjust the presidency to best suit modern times.
4
There is nothing stopping Mueller (or any other prosecutor) from charging (or getting a grand jury to charge) a sitting president for alleged acts committed BEFORE he assumed the office -- in Trump's case, as a regular citizen any time prior to or during the campaign up to Jan. 2017.
Bless you, Mr. Katyal, for upholding the rule of law back when you wrote the regulations, and today. (Also I LOVE that you ended your opinion piece with a preposition. Shows you right there that it is sometimes a good idea to break a rule!)
3
Indict him, anyway. Let's see what happens. Couldn't be worse than what we already have. Do it.
5
Well, you hit the nail on the head with your line about congressional leadership being in criminal cahoots with the president. That is certainly true in this congress, and the people are near helpless to change it because trump has promised that no future election will ever be fair or free from foreign interference so long as those foreign governments are paying him. To date China has given him $500M, the Saudi's have coerced the Qataris to bail out the Kushner real estate company, and we don't know how much he's received from the UAE or any other dictatorship.
5
Trump will lose ,the presidency,the Republicans hold on the House and Senate and everyone that is defending hims reputation and legacy.
We are witnessing the unraveling of a man that reached to high and is unable to hold on to a power position without corrupting himself, the office of the presidency and everyone around him.
This too shall end.
4
No, we are witnessing the unraveling of a once great nation.
5
M'thinks you give Mr. Giuliani's words too much truthiness. He makes thinks up our of whole cloth. Does anyone know if he ever, since he has been "hired" as the #PLIC's lawyer, talked to Mueller?
1
In the 16 months he's been in office, Trump has transformed our democracy into a dictatorship. Dissenters are purged. Corruption is rampant. Children are being murdered in their classrooms as congress fiddles. Government agencies, run by cronies, is being systematically dismantled. The rule of law is dying. Republican party uber alles.
It grieves me to concede Putin got what he paid for.
5
"... Trump has transformed our democracy into a dictatorship."
Dictators aren't subject to term limits.
2
We’ll see just how willing he is to go. My guess, not too willing. He has no regard whatsoever for the Constitution, the laws of the land or the institutions this nation was founded upon. He cares only of himself and his 4th-grade ego.
Remember his words regarding Xi?
2
Every time I read one of these convoluted stories about Special Counsel and Trump, I am further amazed and enlightened as to the brilliance of our fore fathers in drafting the Constitution. In today's world, everything is complicated and contorted, or can be made so by people like Trump and his band of fools. And yet, nearly every contingency, as outlined in this article, has been covered and accounted for. One way or another we are checked and balanced whether that is from the framers of our Constitution, the separation of powers and ultimately, thank God, the U.S. Supreme Court. One way or another, the truth will out in the end. This scenario is so reminiscent of the Nixon debacle, anyone who doesn't see that, is well, uh, a Trump supporter.
113
I just wish the check and balance could happen more expeditiously, but it does take time to track down and analyze all the facts before the truth can out.
9
I share your thoughts that all is not looking doomed, but I do believe the SCOTUS has been corrupted into a tool of the GOP and all the other traitors in Government.
17
The Constitution is only a useful tool if our elected representatives abide by it. The GOP went off the reservation in stealing a SCOTUS seat. I am nostalgic for your feeling: "Thank God the US Supreme Court."
The court has been corrupted.
21
Indictment or impeachment is a trap. Trump's team is orchestrating a conspiracy theory campaign of unwarranted, malicious attack based on personal animus and obstructionism.
When Bill Clinton was impeached, his approval ratings soared.
17
Department of Justice personnel have a constitutional duty, statutory duties, and a moral imperative to investigate and prosecute felonies and high crimes, especially treason, malfeasance in office, and obstruction of justice.
Political considerations should not enter into the investigation, though Rosenfeld and others unquestionably must play along with Trump's political games to prevent a complete collapse of constitutional law.
Comey allowed political considerations to prompt him to violate DOJ regulations to disclose the reopening of the Clinton email case and that is one of the reasons American democracy is on the verge of total failure.
15
Bill Clinton's approval soared because his impeachment was unwarranted and was rightly seen as a legislative coup. Clinton had a consensual extramarital affair and lied about it; Trump, it appears, colluded with a hostile foreign power to undermine our elections, and continues to bend national policy to benefit foreign powers that are paying him.
17
The best course for Mueller might be to come out with an indictment of conspirators and name Trump as an unindicted co-conspirator as they did in the Watergate case. I believe that would allow a full report from the Grand Jury and Mueller's team which could fully inform the public, while preserving the opportunity to either impeach Trump for high crimes or misdemeanors and remove the president (assuming a change of congressional leadership from Republican to Democrat in 2018) or indict him after he leaves office.
8
If it's true that a president's ability to perform his duties could be hampered by an indictment while in office, it's also true that it could be argued that there has been a remedy for this since the passage of the 25th Amendment, requiring the president to vacate the office while impaired.
5
Giuliani and Trump - a slime-ball "lawyer" representing a slime-ball president.
11
The average life span of a great civilization is about 200 years. Most have succumbed to internal forces, corruption, easy living, and the shifting of societal responsibilities to paid servants i.e. privatizing or outsourcing. Responsibility for doing the work of the community e g voting, becomes, oh so, inconvenient. We have passed the 200 yr mark and appear to be in our twilight years. And we seem to be doing nothing to be the exception. Sad.
6
That's fine. But if it reaches that point, I expect Mr. Trump would rather have the guys with guns, military and civilian police, backing him than the guys with legal briefs.
1
Doubtful they would do that. Their oath is to "protect and defend the constitution" not the president. Many of them, particularly in leadership take their oath seriously, none of them can be comfortable knowing that the ultimate irrational loose cannon (Trump) can order them into harm's way.
2
More legal speculation. The bottom line is that Mueller's scope is no longer expanding like the universe, and he doesn't seem to have enough evidence to indict.
We have no idea what evidence the Special Counsel has or what he intends to do with it or when, so your bottom line is merely is more speculation, only less well informed.
9
Your speculation that Mr. Mueller's scope is no longer expanding is without basis, since we don't know yet all that Mr. Mueller has uncovered and what leads he is following. He has a reputation for taking his time and doing it right. Some investigations of organized crime often take months to get all the crooks involved. We can be patient.
9
Patience.
5
So what if DOJ regulations would require Mueller to send a report to Congress? Trump could simply order him to not do so. And I think the conservatives on our politicized and weaponized Supreme Court might back him under their "unitary executive" theory.
Of course, they would answer differently if a Dem was President, but that's another matter.
3
"Everything having to do with President Trump and Russia, whether it is Mr. Trump’s demand for an investigation into the investigation by the special counsel Robert Mueller, or whether Mr. Trump will testify, requires an answer to one essential background question: Can Mr. Mueller seek to indict the president?"
Oh? The single best argument that the president and his team have against the continuing Special Counsel investigation is that the answer to this question is no. That could well be an incorrect answer, but it's the one they are making.
Even at its most persuasive, that fails to recognize the imperative to investigate and prosecute ANYONE other than the president who either sought to interfere with our elections, either as a foreign actor or as a citizen who abetted them. How can any American be opposed to doing that??? Isn't it obvious that the Special Counsel inquiry is absolutely necessary with or without the president as a target?
By framing his op-ed piece this way, Mr Katyal frames the inevitable constitutional crisis in the best possible light for the president. Trump wants nothing more than to make it all about the office of the presidency.
1
How is it that in this country, "Nobody is above the law", but some still believe that the "President" is?
That's one of those "bedrock beliefs" that everybody takes for granted in this country. Indeed, if there was ever one to truly believe in, it would be that.
Unless the President is a "King", he should be subject to all of our laws, despite any and all arcane "Justice Dept." rulings.
Not to disparage the Justice Dept., but it's only because the Supreme Court has never had to "rule" upon whether or not a President could be indicted are these Justice Dept. "rules/protocols" even germane.
I have a feeling that this "question" is finally going to be settled soon by the Supreme Court. That fact that it needs to be settled at all points to a glaring omission in the Constitution that's been hiding in plain sight forever.
Unless Trump is successful in scuttling the Mueller investigation, we will finally get the "official" answer to the question that most of us thought we already knew.
8
If the question of presidential indictment is ever brought up before this SCOTUS I believe we can guess how the majority would vote.
My feeling is they would side with trump and make it illegal to indict a sitting president.
4
"If the question of presidential indictment is ever brought up before this SCOTUS I believe we can guess how the majority would vote.
My feeling is they would side with trump and make it illegal to indict a sitting president."
I wouldn't put a lot of money in either direction, but if I was forced to pick a side, I'd probably lean toward your line of thinking.
Although, if given the chance to essentially "affirm" once and for all that "nobody is above the law" in the United States, I'm reservedly hopeful that at least a few of the more "moderate" conservatives like Kennedy and Roberts might be swayed by that opportunity.
Doubtful in the extreme. Chief Justice Roberts has already demonstrated on several occasions that he will rule against GOP priorities, there is little doubt that he regards his place in history most seriously. The same for Justice Kennedy, nor will the Court be willing to cede its "checks and balances" power over the executive. I would expect to see such a vote go 8/1 or 9/0.
1
"If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment." Interesting observation, that. The "end game" to this prosecutorial journey will be fascinating.
4
Etienne--And, that is exactly our current situation. Indict him. How about crowd sourcing for the Mueller investigation?
7
ChesBay, if it comes to crowd sourcing to protect the investigation I'm for it.
Guiliani discussions with Mueller? I smell rancid fish.
3
Donald Trump is a joke. With him, the United States is becoming a punchline.
21
Sadly, we already are.
LOOK!!!!!!
Stop with all this "....a sitting President cannot be indicted" nonsense.
Those claiming this, what they won't say, in fact, they'll go to great lengths to assert that's what they mean when the fact of the matter is this: There is NO PRECEDENT for indicting a sitting President. So?
That does NOT mean the President cannot be indicted. For cripes sake, this is The United States of America. Doesn't this mean anything to anyone, especially your elected representatives. Senators can be and in the past have been indicted. Representatives also. So why not the President. Just because there's no PRECEDENT? Come on!!!!
31
funny, when it was Bill Clinton on the hot seat Giuiliani said on the record: "he has to testify," if supeoned. of course that was a long time ago, he was still cheating on his second wife, not his third.
35
It's absurd to say a sitting POUS can't be indicted.
What if commit murder or rape?
What if he conspires with foreign enemies?
The current occupant of WH belongs in a solitary confinement in a federal pen. Knowing his history, if the Red Army invade Alaska tomorrow and Putin promised him to stay president, he will send a tweet thanking Putin.
It's, and will always be, about him. Nothing else matter. Nothing.
19
Read “How Democracies Die” by Steven Levisky & Daniel Ziblatt.
7
Unfortunately, we were never really a democracy...we are a “representative republic”. As long as there’s an electoral college, no term limits for congress and unlimited money we will never be a true democracy. Which means, we will never be a true democracy.
1
"If congressional leadership, for example, was in criminal cahoots with the president..." Count on it. (NYT|FBI ought to follow the Ryan/Nunes/McConnel money trail). Indeed, if GOP continues in control, neither impeachment nor indictment will go anywhere-> there is no crime for which GOP will not forgive Trump. (e.g., the Chinese 1/2billion $ payoff last week to Trump Resorts, in exchange for Trump letting ZTE continue to spy on U.S. - i.e. this meets the criteria for TREASON .. but GOP is fine with that - again, who else got paid by China?)
20
We no longer live in the horse and buggy days of early America. Technologies existing within foreign country's --- can defeat our country in days. If greedy, corrupt, and treasonous officials collude against America; how much time will there be to counter an invasion? We elect vice president's in order to take command when the President is undermining national security! You really think the founding fathers were so senile or incompetent that they would leave opportunities for America to default back to a monarchy? The King (sitting President) cannot be indicted; The King or (sitting) President is royalty or a living God! Getting up from this all time low will take a long time!
9
Even worse for us: Mueller can't indict this President because there's no 'Justice System' left to do it. That would be just fine with 'TrumpLiani'.
1
The biggest problem Trump has is Guiliani.
1
And the biggest problem the United States has, is Trump.
3
Well, maybe not the biggest. But a problem nevertheless.
1
From the time Donald Trump announced his candidacy until today, the daily writing and theorizing about him has made for interesting, and occasionally, educating reading. However, it has been the equivalent of spitting into the wind. Nothing of substance has come of it. The country continues to have an aspiring despot as it's President with the Republican members of Congress, and a vast majority of brain dead voters standing firmly behind him. And thus it shall remain until Trump is either voted out of office in 2020, an unlikely event, or time has its way with him as constructed by the wisdom of our founding fathers in limiting a president's term of office. Sooner or later the chickens will come home to roost, and we will see the damage Trump has wrought, and America's capacity for survival.
8
I have confidence in Mr. Mueller's work. Ultimately, we are a nation of laws and there are enough honest and law abiding people in our judicial system to make sure justice is served.
3
We are at a crossroad in American history. Our country is clearly in trouble. Our constitution is being attacked by the very people who were elected to serve and protect "we the people."
The Republican party is colluding with the White house to hold on to power. That politicians have become so greedy they would sell out the country for a buck is clear.
11
Trump is not going to be jailed, indicted or anything else, these articles are pure hyperbole and wishful thinking for the left.
We know you wanted to happen, but it's not going to happen, it's just not...
1
"The best defense is a good offense" seems to be the playbook rule followed by Trump's opponents. It's not working out so well for them since their opponents are following the same rule.
Thanks for that hot take champ. So nuanced and full of on topic evidence. A+ stuff.
Do you think that if you keep repeating it, it just won't happen?
1
I have long been a sceptic of outright collusion by Trump (although this weekend's Times reporting about various Trump Tower meetings seems really solid and stinks to high heaven) but I know for sure he is a crook, almost certainly laundering money for various oligarchs. Once we get those books opened up and exposed to the world this Administration is toast.
16
"the Supreme Court ruled that Clinton was not immune from a lawsuit filed by Paula Jones, who accused him of sexual harassment. It is settled law, the court said, "that the president is subject to judicial process in appropriate circumstances.... The Clinton subpoena was withdrawn when he agreed to testify voluntarily." (from nbc news dot com). 'Nuff said.
6
There are indications that this kind of nonsense is provoking the regrowth of a public brain and a backbone. The power of demagogues seldom survives the consequences of their delusions.
In my personal experience that can take a while. Despite my misgivings, I once voted for President Nixon. But when he declared, "If the President does it, it's not illegal." that popped my balloon as I realized he was trying to assert his own version of the Divine right of Kings.
I suspect that Giuliani knows he can't make that fly this time but either way, he gets paid... if he was smart enough to make sure his his retainer check cleared before he committed.
7
It seems to me that one of the most important ideals behind the Revolution was that a king, oligarch or president could not do whatever he/she wanted with impunity. No taxes without representation, no seeking the help of another country to get yourself elected. If a president can do anything illegal without consequences, why not just call him king and be done with it?
8
I am not a religious person, but Amen.
4
Into those commenters below stating that no one is above the law, come on, what country are you living in?
There are many people above the law in this and every other country in the world to think this is a fair game and we are all treated equally is insane, my six-year-old knows better than that
2
@There: City laws, county laws and state laws. and federal laws all break down into various categories. Most laws broken every day do only affect the district or state in which the law-breaking happened.
However, when federal laws--especially those affecting the security of the country, including our government--are assumed to have been broken, it is the responsibility of the Federal Government to investigate. To do less would be irresponsible and weaken the security of the country
1
If trump believes a sitting president can't be indicted, that must be why he wants to be president forever.
6
The descriptor of Mueller's questioning Trump as a "perjury trap" is an admission that this president cannot tell the truth, not that most of us didn't already know.
6
If it is unclear if our President can be indicted for criminal acts then it is up to Congress to pass legislation to correct that. We are a nation of laws and no man, President or not, is above the law.
However, we most likely will have to wait until after the Republicans have been voted out of office to return our democracy to the people.
4
Just another argument that elections have consequences. Rather than worry about indictment vs impeachment, the focus should be on large voter turnouts in November and flipping both houses of Congress. Democratic leadership needs to turn up the flame on that effort.
14
So far its efforts have stalled. Attacks on Trump aren't working. Democrats' constituents are tired of hearing about Russian collusion and more interested in the economy and jobs. This is problematic for democrats since middle class cuts can no longer be dismissed as "peanuts". Polls showing Americans attribute the stronger economy to Trump are the greatest challenge the Democratic Party has faced in a while. I suspect we'll soon start seeing huge government giveaways.
Agree We the People need to vote out these despicable, spineless, complicit republications.
We need a veto proof majority -- so HUGE turnoout is needed.
But don't dismiss this article because indictment, or impeachement - trump, pence and their sycophants have to be driven out of our government quickly. They are criminals and must be judged by juries.
Jail Time for them all. !
2
Interesting article. I say let the truth come out and the chips fall where they may. The public needs to know the truth and then Congress and the courts can sort it out.
7
What a clear, complete, well argued explanation -- by far the best I've heard so far. I suppose such cogency ought not be a surprise coming from a former solicitor general. Well done.
16
Trump's regime is corrupt and all should be indicted - starting
with Trump.
11
American democracy is under attack by tyranny,
and the Republicans are doing nothing.
Trump is doing what the GOP has openly hidden,
that they despise democracy because it makes
every American equal before the law.
2
Pretty clear that Giuliani, that reprehensible narcissist, is just lying constantly. Mr. Mueller has told him nothing regarding indictments, Giuliani just spews lies constantly, imitating his master Trump.
And I'm in total agreement that if a president cannot be indicted, then he can be impeached, and if impeachment is prevented by a corrupt Congress (as it would be in current circumstances) then indictment would be necessary.
I'll go further than Mr. Krugman would, and point out that Trump's flailing around, lying, threatening, and desperately obstructing this investigation, indicates that he is guilty.
Trump has hidden his tax filings for all time because they demonstrate his guilt. Trump refuses to aid this investigation because he is guilty. Trump is a criminal, that's my belief, and it's evident due to his behavior.
So whether or not he gets indicted or impeached, I hope history is clear, that we experienced not just an ignorant, bigoted, lying, incompetent president, but a criminal one as well. I hope it's made clear he's the worst president we've ever had by far, and I hope to God we never get another one anywhere near as awful as Trump.
38
Well stated! Thank you, Dan Stackhouse
3
Thanks HoosierInVA!
Also my bad, thought this column was by Mr. Krugman for some reason, sorry about that Mr. Katyal.
1
I read where a presidential approval rating of 52% was needed to keep the House red and Trump currently is plus or minus 42%. I do not see that Trump has done anything that warrants impeachment—he is awful in every way but not a crook based on what I see—but by the new year things are likely to be different. The reason is US citizens see how awful Trump is and see what cowards the Republicans are. If Mueller states a case, justice will be done. If not, Trump will be an awful footnote to history and dwell at the bottom of presidential rankings for all time.
3
What do you see? Everything I see screams “crook”.
5
I am really confused about when Rudi Giuliani got to be such an icon. I lived in NYC for years before 9/11 and he was always a bit of a nutter that people sort of laughed at. But that was before an orange reality star who grabs women inappropriately and thinks the Gov of the US is his own personal chew toy somehow became President of the US.
At any rate, if Giuliani said the sun was shining I would take an umbrella. He's a loon and he always has been.
23
Jeff Sessions is staying quiet despite the fact that Trump has ridiculed and humiliated him. Sessions agenda is unclear but he is not standing up,to Trump.
6
“No person is above the law.”
Thank you. That’s all that we all need to know. And remember.
Would somebody please drop a note to Trump and Rudy?
13
It is not clear what prevents both an indictment and impeachment being off the table. The latter is a political mountain to climb and unlikely to be successful. And the former is not guided by anything other than 2 memos.
2
Maybe we cannot indict a sitting president but we can make his life miserable. Vote Democratic in November.
16
Mueller is on a witch hunt. He can't find any Trump wrongdoing. Francis Crozier lives on!
2
This is why the focus of the investigation keeps changing -- not unlike the origination of the investigation and its timeline. The longer Mueller investigates, the longer those allegedly complicit in the illegal spying become closer to exposure.
Having read a lot of the comments I find it is hard to accept that the rule of law can be flaunted by t. The largest crime is the emollients clause of the constitution. It is obvious that having foreign diplomats staying at a t hotel is anything less than that. The appearance of this situation is on its face proof of under the table payments to t.
9
The difference between an indictment and trial is whether congress "indicts and tries" or the justice department "indicts" and there is a trial by jury... there is a huge difference. The way you get there is that a sitting president MUST be removed politically before criminal charges can be made. LIke a state has to agree to be sued before it can be sued.
Congress must permit the criminal prosecution by impeaching. Can you imagine a sitting president arrested, tried and convicted if the Congress disagrees? And if there were a conflict, how the supreme court would rule?
Impeachment is the only way and figuring out how that might not be the case is just loose thinking.
Congress will not impeach...the militant, armed, white racist faction of the country will not permit it. And the military will not put the insurrection down.
Trump has to be voted out of office. But who will be left to force a fair election?
China is happy, Korea is happy, Iran is happy, the EU is happy, Mexico is happy... what's to stop this train wreck?
Lawlessness began with Regan, got picked up by Bush Jr big time and then with Congress under an Obama balancing act and with the triangulating Clintons, it over.
In this fanatical capitalistic Christian Country, God doesn't compromise.
2
Despite Giuliani’s assertions, I doubt Mueller is feeling any heat from Trump to conclude his investigation by any imposed deadline directed by the main suspect in a spiralling criminal case. In any event, Trump should bear in mind that he’s not being investigated by one man, but is being judged, regardless of any investigation, by a global community mostly stacked against him. He is widely viewed as a major liability to world peace, an agitator of Israeli/Palestinian friction, a loathsome caricature busy denigrating what was once the most esteemed political office in the free world. Although this might only help to inflate his maverick instincts yet further, it will only serve to alienate the United States as allies see no option but to turn away from America.
This is an American tragedy for which its history is epically manifesting itself. The 2nd Amendment feeds school murders, the Constitution fails with its checks and balances to stem a would be tyrant. Societal rot has bred division, racism, classism, elitism, cronyism, and corruption. The cult of celebrity brought a maniacal buffoon to the White House, surrounded by sycophants, heavily indebted to foreign powers. Disenfranchised anger bellowed for change in a stagnant status quo, and this is the change that resulted. It may not be too late, but the resistance had better start resisting before even more irreparable harm befalls America the Beautiful.
16
Well said.
I remember Martha Stewart.
She did nothing wrong
Because she spole to authority
they manufactured a reason to arrest her
Trump is stupiod to talk to deep state who want nothing more than to eliminate him
2
So; what about that "Shoot someone on 5th Avenue...? If Republicans refused to impeach- is the writer stating, a president could get away with murder as long as he was a Sitting President? And what if said president won a second term: Too bad for the Fifth Avenue Victim?
3
David Nunes and the entire Republican Congress including some so called "mavericks" are all in the pocket of Donald Trump and if the latest moves are any indication, the justice department has ben effectively neutered.. Those like McCain or Flake, etc who occasionally voice muted dissidence, in the end are guaranteed to be with him when push comes to shove.
During this entire sordid episode, except for some occasional one liners, the entire cowardly and inept Democratic leadership is missing in action and in the media instead of being there upfront everyday on every show and speaking the truth. Therefore get used to President Trump till 2020 and may be beyond!
3
Trump would certainly perjure himself, opening the doors to indictment after he leaves office.
3
No one knows what Mueller knows....or...what will happen yet.
Mueller is not going to reveal anything....and my bet is he
will not be fired and will bring about justice..
The US Constitution will survive any endeavor to corrupt it.
9
And it will grow stronger. Nearly every administration tests the design of the nation's system in some way, and each survived crisis is another folding of the steel.
1
Once more, Partisan actions within the party are fueling demands by a few for the destruction of Trump for being a dumb dolt with little educaion or experience,(everyone forot G. Bush already?), while no one in media or anywhee else worries who would replace an alienatated or arrested or indicted Trump:
Would a Pence presidency be better, or infinitely worse, for a split nation on the verge of 1860, again?
Better Bozo at the helm, or A religious fanatic ? I think Democrats-especially media commentators , need to consider the ends of events more than their mere legality.
1
Thank you for reminding us of this unsavory consequence. Nevertheless, Bozo must go! Then we’ll deal with Pence.
2
It is possible to get rid of trump and elect Democrats into every congressional seat from now on. Pence would have to compromise, for the short-term, until we get a Democrat into the WH.
Erudite beyond the ken of Mr. Trump and, perhaps, that of his legal team. If anything untoward legally happens to Trump his red-hatted brigades will be in the streets crying "rigged system" in their shared victim-hood.
1
Mueller asks Trump to sit for an interview. Trump says "No thanks." Mueller issues a grand jury subpoena and Trump says, "I don't have time for this." Mueller tells Trump he is now in contempt. It would be unseemly for agents to show up at the White House to arrest the president. Trump says his secret service has orders to shoot any unauthorized personnel on White House grounds. Mueller says "I guess we'll have to call in the national guard." Trump says, "Go ahead. I'll call in the marines."
The imperious tone of Trump's "I hereby demand" tweet is a warning to us all. By now it should be clear that Benedict Donald is a traitor and he will not--indeed, cannot--go down without a fight. He knows he's going to spend the rest of his life in jail if he loses. Trump has shown that he's willing to tear the country apart to prevent this from happening.
We must resign ourselves to the likelihood that this issue will not be resolved in a court of law or public opinion. It will all come down to brute force. Will our armed forces obey their commander-in-chief or protect and defend the constitution?
8
Since all the troops you mention have sworn to defend the constitution against all enemies foreign and domestic, they would without question defend the constitution and the country. I can't imagine a single one not doing their sworn duty.
1
Please, God, go VOTE this year. We still have the power to get these awful people out of office, but only if you care enough to get yourself to the polls.
9
The only fool-proof way to see that Trumpy is led out in handcuffs is to vote him out in 2020. After which, he can be indicted and convicted. Hopefully, they'll have the entire shameless family behind bars.
So let's start winning back the minds of the Trumpy fans. Surely, some of them are not deplorable, but simply misled.
5
If a president can shoot someone on Fifth Ave and not be immediately arrested for it then something is definitely wrong with the Constitution.
5
He is never going to testify. The conversation about
same is just nonsense.
he will ignore subpoenas and fight to the last
remember Delay Aids the Guilty
Walter Oboerer
1
Impeachment would be on the table - if Nancy Pelosi wasn;t waiting in the wings to take it back off the table, as she did for war criminals Bush and Cheney.
She needs to go, now.
1
Never in their wildest dream, and these were imaginative men, could the framers have foresee that their future countrymen could elect such a lout into office. Or surely they would have designed a more unambiguous safeguard into the Constitution, in case the president is a unabashed criminal.
3
Pride (arrogance, entitlement, greed, unethical and/or illegal activities coupled with a complete disregard for our nation) cometh before the fall.
1
Why is Mr. Giuliani telling us what Mr. Mueller is going to do? Shouldn't Mr. Mueller be the one to do this?
3
the key priblem is this Congress will not impeach Trump...no matter how much evidence is discovered to warrant an impeachment.
1
When there is no punishment for criminal activity, that activity will continue, Corruption and illegal activity is being covered up by this administration and some GOP congressmen. Our country is on a downslide under trump and his administration, and the corruption and illegal activity will continue if we don't hold them accountable.
5
The charge is the Trump campaign tried to get negative information on Hillary via the Russians ? If the French, Germans, Swedes or Japanese had nasty dirt on Trump then Hillary would have met with them to gather up the dirt on Trump. Getting dirt on your opponent is not against the law. Exactly how many Russians stood in line at the voting booths and pulled the lever to elect Trump ? Russians on Facebook ? Who cares ? Why would Lisa Page be communicating about providing Trump data to the POTUS ? She is 10 levels below anyone in FBI / DOJ management that Lynch or Obama would have contact with in those agencies. Obama just could not contain himself now could he ? The ongoing silence from Lynch and Obama is deafening. Mueller would be wise to wrap this up and get Trump focused elsewhere because every day Trump focuses on this Russian issue brings forth more revelations.
What is the point in law and abiding by it if those in power either do not care, do not want to abide by it, do not understand it, do their best to violate and circumvent it and have no scruples brainwashing half the American public to approve of breaking and obstructing the law as long as it comes from the 'right' party?
If laws are there to be broken, Trump and his Republican supporters should be in the Guiness Book of Records.
3
If Trump is successfully removed from office. Pence would become POTUS and could pardon Trump of all his federal crimes. He may not want to do that because he would be committing political suicide as was the case when Ford pardoned Nixon. Trump could also be open to prosecution for any financial crimes by the States.
2
I seem to remember that when it was Bill Clinton being subpoenaed Giuliani thought Clinton should be required to testify. Also, House republicans are certainly acting like people trying to protect themselves as well as their "leader".
3
Excellent and informative.
Especially the idea of "nefarious congressional activity" and "congressional leaders in criminal cahoots with the president".
Because of suspicions regarding this sorry set of enabling Republican Congressmen, Mueller would be well advised to launch an across the board strategy—including subpoena and indictment (that can be on their way to the Supreme Court) as well as the traditional report to Congress for consideration of impeachment and removal from office.
[And Mr. Giuliani, no surprise, is making a fool of himself.]
3
I am 99 percent positive that Mueller will recommend to whatever Congress exists at the time that Trump be impeached. If Dems take the House in November, Schiff will re-open the investigation, which will dog Trump until 2020, and impeachment proceedings will begin long before then. Sadly, there won't be enough Senate votes to take him down. But he will be stomped in 2020.
4
The author clearly has contemplated the role of the special counsel in any manner of scenarios-- and yet makes special mention of a scenario in which the leadership of Congress is in "criminal cahoots" with a similarly criminal President. When I think about how Paul Ryan and Mitch McConnell have so frequently dodged their Constitutional responsibilities and aided and abetted the frankly outrageous actions of the President's Congressional lackeys (hello, Devin Nunes!),, it makes me wonder if the author included this example for a very specific reason.
7
Thank you Mr. Katyal for your highly instructive article.
1
You don't need to be an attorney to know this simple truth: Every American citizen has the right to expect that the person holding the office of President will, to the best of his or her ability ". . . preserve, protect and defend the Constitution of the United States." This is not happening. Our democracy is under siege by the president and his conspiratorial republican congressional members. It's past time for all of them to either resign, or face subpoenaed testimony, and indictment or impeachment.
206
@AKPrepared, The republican congressional members have not lived up to their sworn commitment to the constitution, since when we twice elected President Obama, they chose to stick to their racism and oppose everything he did for our country. They are as despicable as trump. They richly deserve him, but the country does not.
26
Fantastic analysis - NYT. Excellent!
I am not a lawyer, but the
article leaves no doubt about
the Rule of Law in our Land.
Donald Trump is acting like the wicked and
abusive King John before the Magna Carta.
In the face of wrongdoing the choices are: IMPEACHMENT OR INDICTMENT.
4
I welcome an indictment of Trump and the constitutionality of same being taken up by the Supreme Court, as notoriously partisan it is, so that the issue may be settled not necessarily once and for all.
If Trump has committed crimes, he should not be shielded from justice because of the office he has disgraced.
2
I'm beginning to believe that the only time Donald Trump told the truth in his life was when he stated he could shoot someone on fifth avenue and pay no price. I think he really believes this and his republican enablers in Congress will do all they can to make this come true. America is at a cross roads and I fear for our future as the leading world democracy.
6
" No one is above the law"', unsaid " those holding the scales of justice be blindfolded.
If this turns out to be a political witch hunt the maze of possible ways to punish political opposition has a roadmap as this piece points out.
let's hope is horrible precedent doesnt take root.
"First, some constitutional scholars believe a sitting president cannot be indicted."
And for good reason. A president should not be subject to politically motivated prosecutions.
"Otherwise, a president would be above the law; he could, say, shoot someone in the middle of Fifth Avenue and face no legal process whatsoever."
Trump was referring to the loyalty of his voters *before* he was elected, so that example is nothing but a troll. If the author intends to be taken seriously, he should posit politically neutral examples.
There are apparently 4543 words in our US Constitution (including signatures). "Impeach" or "Impeachment" is used 16 times, and the first use is the 382nd word of the document. Occurring before the discussion of the office of the President. Impeachment arises surprisingly early in a long document about governance, it appears to be a core function of a healthy democracy, akin to apoptosis in nature-the organized death of an individual cell for the betterment of the larger tissue. There are only two explicitly stated reasons for impeachment. Treason and Bribery. Most Americans would probably say that Bribery involving an elected official is a form of Treason, putting the desires of another before the oath of office. If evidence is brought before congress, placing #45 at the scene of a crime, as an active player, then congress must bring the case before the senate, and any member who makes a political decision against impeachment needs to be removed from office by the vote-whether in a primary or general election.
1
The problem with our checks on government overreach is that they are dependent upon an educated republic who will maintain facts over propaganda. Trumps propaganda machine is his most powerful machine--it's all he understands.
3
Impeachment is a no-go. We are in desperate need for impeachment, but with a Republican congress, it will never happen. This problem is both symbolic and remains, by itself, an indictment.
One that has slipped by the New York Times, and the American people.
Our government no longer works. The system is saturated with criminals. But wait.
This is what criminals do.
We need a new form of government. Something that actually works. Something that subjects the rulers of the country to votes of no confidence. We have needed this for a long time. But we dare not even mention it.
It would require another revolution. The American people, for all of their various mythologies, are fundamentally fearful. They are always afraid. They will be subjugated long before they even know it.
When one man is above the law, so are the rest of us.
Trump armed with a military that intervenes with violence aimed at angry civilians. It's been coming for a long time.
All revolutions have victims. In order to achieve anything new, we would have to be prepared to endure and live with the elimination of the messengers bearing gifts.
It's time. But we have lost this battle, too. Because it is way past time, and the consolidation of power was approved by the very people that power WILL be used against. The American people have done this to themselves. We blame Trump. But the actual problem is the skeleton the framers framed on.
There was always going to be a Trump.
It has arrived.
1
Trump continues to win at every angle.
Taxes; Media; Federal Courts; Israel; Black Men (11% to 22% in one week); all are key.
Not to mention his promise of a better future.
Sadly, many Americans continue to lie about Trump and all he has done to make all Americans successful.
Blacks are now employed at historically high levels, and Hispanics are experiencing unprecedented prosperity.
So Trump has already delivered on most issues important to the low-income voters who love him.
And this love will likely endure through the 2018 Congressional elections -- and Trump's reelection in 2020.
1
This is way too complex for Trump, his lackeys, and his rally crowds. Mr. Katyal lays out his explanation assuming a logical and rational understanding, erudite appreciation, and span of attention longer than a goldfish’s.
Trumpanistas live in a world of fevered imagination where the only goal is ratings. Those are measured in retweets, likes, and audience roars from the inauguration to the latest rally. They are not interested much in the law, and if it involves Trump, their interest plummets like a comet approaching Jupiter. When he’s in the loop truth, reason, and the law are not.
Trumps actions and words attack both the sanctity of the law and the dignity of language. Remember when Nixon's press secretary, Ron Zeigler, said that his previous statements were “inoperative” rather than admit he had lied? The howls of laughter and derision rang for years. Today, lying by Trump and his officials is a requirement and the number of falsehoods is already in the thousands—only counting Trump’s. Blatant lying is now habitual and routine.
If facts, evidence, and the truth do not matter to Trump, why should the law? At best, laws are inconvenient rules to be bend and circumvented. At worst, they get no respect from him. He is the acid that drips tweet by tweet on the rule of law and the Constitution. The longer he stays, the weaker they become.
2
"if impeachment is off the table because of nefarious congressional activity, then indictment must be on it." Ooooooh. It doesn't get much better than that in the news right now.
None of which will matter while Trump is in office. He will never be convicted in the Senate. He may however be the first President to leave the White House at the end of his elected term in handcuffs. If you thought that Bush v. Gore was a fascinating ( political) SCOTUS exercise, you ain't seen nothing yet.
2
“If congressional leadership, for example, was in criminal cahoots with the president...”
Good thing this possibility is taken into account because at least some GOP congressmen are giving the appearance that they are very much in cahoots with the president at least when it comes to excusing, rationalizing or simply offering up alibis for activities with a foreign power and an enemy of the United States.
3
Can we please stop calling our system of government "genius?" If it was so smartly designed, then we wouldn't have the loser of the national vote declared the winner. And we wouldn't have a structure that prevents an officeholder from being indicted for a crime.
This "genius" structure enabled a con man and corrupt party to gain control of all levers of government and work together to destroy democracy. What's so smart about that?
3
Even if Trump is impeached, it is obvious that Pence will pardon him immediately for anything/everything. Therefore, I would argue, he is above the law. Impeachment will only rally conservative extremists and put Pence in power. Trump may deserve impeachment but, it is a bad idea. The only solution is to let Trump's policies cause havoc for the people who voted for him.
81
Perhaps its time to limit the ability of a sitting president to pardon members of his/her own family or individuals who have committed crimes or been complicit in the basis for impeachment, resignation or pending indictment. Such an action would prove that no one is above the law.
27
Your comment needs a thousand recommendations. Pence as a solution is no solution at all.
15
Remember, when Nixon was pardoned, his pardon meant an admission of the crimes for which he was pardoned. One cannot be pardoned for breaking the law unless one has broken the law.
If the country were to get Pence for the balance of the term, would Pence be easier to defeat than Trump in an election?
5
Just think if defense lawyers in a criminal trial were allowed to pick the most biased jurors. Impeachment of a president depends upon the fair evaluation of presidential misdeeds. Who among us has faith that the Republicans would fairly judge Trump if the impeachment process actually does begin in the future?
If this was an investigation on a mobster, and the mobster was caught red-handed bribing possible witnesses, threatening investigators, taking away a pension for a lifetime of honest service, a private citizen interfering with the people's investigation of himself, obstructing openly, tweeting, calling in to mob friendly TV stations, the mobster would go down in a flash.
Yet we the people's only remedy against an egregiously corrupt president, an ignoramus with no knowledge beyond real estate deals, is to let the "mobster" run amok in the unprotected china shop, obstructing openly, not even hiding it.
Our constitution has some serious flaws. The Electoral College, the still not clear legal knowledge of whether you can indict a president before impeachment. Why is that not clear? Of course a crook should be indicted, why is this even a question?
The wrong "jurors" judging the president. A large group of judges with honorable, fair records would be better than politicians for impeachment.
Why do our leaders get away with being above the law ever? Stinks to high heaven.
134
Impeaching of a US President, by the House, merely leads to a trial by the Senate, which can remove a President from that office (and its powers) only by a 2/3 vote -- at least that is my understanding. It never has happened and is certainly not apt to happen now with a GOP president and a GOP controlled Senate.
2
A very nuanced and lawyerly argument from a good lawyer. That said it provides a road map with many possible destinations. No matter which Mueller takes, our author can point out that it was on his map. Generally clients look for a map and a preferred destination and a way to get there. One down, two to go.
3
This assumes that Trump will submit to any legal proceedings and that there is a process by which he can be compelled to do so when he refuses.
5
Before the Mueller investigation is complete (and while Nunes, Trump, Fox, etc try to block it), I suspect Cohen's SDNY case will proceed and hit Trump from a different angle.
9
The theory that you cannot indicted is just that a theory. My guess is if Mueller concludes what he uncovered is so dangerous, egregious, and "criminal" that he would be willing to test that theory. Likely it would go to the Supreme Court, but at this point the statement that you cannot indict a sitting president is merely an academic exercise for the DOJ and others.
6
Granted this “ trump thing’ is new for America, it certainly reveals the need to rectify the “above the law” dilemma for a sitting president. Americans are gravely concerned that party loyalty will not serve us. Action to make lawless presidents own up to justice is clearly needed and quickly. Our democracy is being challenged. Our country does not need obstruction thus Trump to serve us.
11
It is not obvious how anybody can be placed above the law. A person might be granted a limited immunity under the law, but that would have to be express and applicable to the circumstances.
Charles 1 of England argued at his trial that as King he could not be prosecuted in his own courts. The response from the court was that he was accused of treason against England by using his power to pursue his personal interest rather than the good of England.
In other words, though purporting to act in a public capacity, he was in fact acting in a private capacity when he committed the alleged crimes.
22
Who knew a midterm election is so critical!
With the Republicans in charge, there would never be an impeachment. Without impeachment, Trump could practically make the DOJ his personal Roy Cohn.
People said a President Pence could be worse. However, the only way there could be a President Pence is an impeachment. And the only way that could happen is when the midterm goes decidedly against the Republicans. So the 4th of July may not be the only time you will see fireworks this Summer
11
Please look over the borders of the US: immunity is widespread worldwide - even for common parliamentarians. And that immunity includes the right not to be summoned to testify. There are rules on how to suspend immunity when needed and usually that works very well.
The politicization of the judicial system is an American invention and it is really hard for an outsider not to see how harmful that works out.
9
"If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment."
You got it, right there. Almost. The majority party is in cahoots.
46
Most notably is Devin Nunes. Nunes was part of the Trump transition team and it will not be surprised that he knows about Russian and Trump collusion and he is doing everything to protect Trump.
51
And himself
Can we have articles on this subject written by real constitutional scholars, as opposed to Obama partisan hacks?
The DOJ’s position has always been that a sitting president cannot be indicted due to the unique nature of the job. If a sitting president could be indicted, then every time a president is elected, the opposition party in power can play politics and mess with him or her.
Likewise, unless there is an actual crime, a sitting president cannot be subpoenaed before a grand jury. So Mueller can threaten all he wants but it would go to the Supreme Court where they’d uphold the law.
The author may want to read prof Calabresi’s memo and presented by constitutional scholar Mark Levin: Mueller’s appointment as special prosecutor violates the Appointments Clause of the Constitution.
3
The article you just read was written by a Federal prosector, in fact one who several years ago assisted in writing/updating DOJ rules and regulations. One aspect of this was including an exception to the rules or policy in the event that such an unusual situation arose that might call for an indictment of a POTUS, the crime or crimes being so extreme as to set a precedent. Also, there perhaps could arise a situation where the party in power were in cahoots with a criminal President and be unwilling to impeach him. This country may have arrived at such a horrendous juncture in America's history. This may seem unbelievable to Trump's supporters. Many people may in their busy lives may not have been following this investigation as closely as others. In that case, there is much they might have missed. Everything that's out there already sets a fairly good case that could definitely lead to impeachment and likely criminal prosecution. And we don't know all the evidence in Mueller's possesion. That has to be a lot! Trump and team are in very hot water and it will get worse.
1
When ever I see blame in terms of negative naming, " Obama partisan hacks", I question the reasonableness of the argument. Why? It shows bias which in this case was your premise in the first place. Have you ever consider why you have that opposition emotionally ? Or used the anti thesis approach ? I find that helpful.
2
Cj : You lost the argument by name-calling . If your argument were sound , you would present it factually .
3
The danger for Trump is not so much a personal indictment. It is the likely indictment of the people closest to him like Don Jr. and Jared. While Michael Cohen might be an embarrassment, his son and son in-law would be, for him, a catastrophe. If they are indicted and convicted of crimes that may have effected the outcome of his election, the chances of him running again in 2020 are slim to none. It will save us the drama of impeachment proceedings, seal his position as the worst president in American History, and keep Pence from becoming president.
54
There is zero law to prevent an indictment however the actual arrest is the problem. Theoretically , you'd need the Pentagon to agree to the arrest and they'd be afraid too. Nevertheless, the indictment could be taken to the SCOTUS and this court can rule and order an arrest. This should be the legal, democratic pathway especially considering that the coequal branch: Congress is afraid.
8
It seems to me that David Nunes and his obstructing henchmen are committing “nefarious congressional activity” of the kind described here. In other words, their efforts to obstruct, delay, and subvert the investigation should cost Trump his immunity from indictment.
56
Devin Nunes is his name.
And yes, it would be great if his and others' efforts to obstruct, delay, and subvert the investigation could cost Trump his immunity.
But I expect that their actions affect only their own outcomes, not his.
10
Yup. Our modern day Delay and Doolittle.
Remember them?
4
I always found the American presidential system to be a compromise between an absolute monarchy and a parliamentary democracy. While the presidential system gives political stability for four years at a time, it seems to give excessive (monarch like) power within those four years to the President who can pretty much cause significant damage to the country's underpinnings as we have seen with Trump. The argument that the Congress acts as a counter-balance to the Executive is compelling in theory but toothless in the Trump era thanks to the Republican-controlled house who are acting like Trump's minions.
It should be possible for the very people who elected the President to recall one (with 2/3 or more in favor) after two years if they do not see what they like. In the current scenario, getting the 2/3 vote in favor of a recall would be a challenge but not impossible. Obviously, there are questions as to who takes over as President if this were to occur but it is a way to make sure we don't have a criminal occupying the White House and not being able to do anything about it for 4 years.
37
I have never understood, nor accepted, the proposition that a sitting President can't be indicted. I'm no legal scholar, simply an American citizen who has studied history, and I hold the belief that NO American citizen is above the law. To assert that a President is exempt from this would be tantamount to declaring him a king or emperor, and I'm certain that is not what the Founding Fathers intended.
Unless the make up of Congress shifts, or enough Republicans grow a backbone and shoulder their Constitutional duty, impeachment will not happen, even if the evidence is overwhelming. That leaves indictment as the only legal option, and given Trump's ability to fire all those who could bring such an indictment, that path is all but doomed as well. But those who support this neo-tyrant should be aware that if the will of the People is thwarted, the People may opt for extra-legal measures, including protests, both non-violent, and violent, to get their will invoked.
I truly hope that enough Americans go to the polls in November to strip power from the do-nothing Republicans, and reverse the course away from impending civil war.
185
It doesn't say in the Constitution that the president can't be indicted. I'm not sure how they came to the conclusion that he's " safe". It's specifically refers to indictments and penalties for crimes.
18
That's what impeachment is for, lol.
1
We will never know if the do nothing Republicans might have been thrown out of office in 2016 but for Russian interference on their behalf. I think this is why they will not speak out on behalf of the country and defend Trump. We can only hope that our real votes will be counted in November.
6
If we are first and foremost a country of laws and the Constitution is our guide, then if Mueller finds evidence of lawlessness, be it money laundering or conspiring with Russians or working to obstruct an investigation into the question of how much Russian's influenced the 2016 presidential election, he must indict, regardless of public opinion. The court of public opinion does not overrule our legal system. If Trump is above the law, why have laws. Let him be king. Our forebears left England particularly because they wanted to escape a monarchical system that made up laws to suit themselves and were answerable to no one. All of the noise coming out about the concerns if Pence becomes President, or impeding Trump in his job or any fears about what will happen are not convincing to me. What will happen if we give away our respect for the rule of law, our Constitutional basis for governing?
57
The President is the head of the executive branch of government. That IS the law -- the highest law in the land!
The Constitution (THE LAW) provides only two ways for the President to be removed from power: impeachment, or a declaration from his cabinet that he is unfit for duty (25th amendment, tenuous).
"If indictment is off the table, then impeachment must be on it."
This neat legal tautology has no practical impact. If Rosenstein were to reject a special counsel request to allow a presidential indictment, that would not automatically make impeachment more likely. In fact the opposite might occur because the Republican congressional majority would view the indictment refusal as an exoneration of Trump and an invitation to completely shut down the inquiry. It may be that by refusing to support indictment "Rosenstein...would still be creating a record that Congress may use as it considers impeachment," but that would surely be an empty and ineffective compensation. It would only be of interest to legal scholars who at some future date undertook to research how the legal effort to hold Trump accountable collapsed.
10
One step at a time: turn the House blue in '18; finish a thorough investigation in the succeeding two years - one with real subpoena power - and evaluate leading up to the 2020 election amidst a changing political landscape. My guess is that the disclosures during that time will make what we have learned to date look almost frivolous by comparison.
Those disclosures will turn both the Senate and the Presidency blue, as well. And then we turn our attention to the Trump crime family - and their enablers...
40
I certainly appreciate salivating at the bone of Trump's removal. But has anyone thought about the day after? Who comes next? Take 'em all out? How? The line is Pence, Ryan (until January), Hatch, Pompeo, Mnuchin? Out of the frying pan and into the fire. We are in big trouble.
36
As detestable as that list is, Trump’s criminality is exceptional. We’ve had corrupt administrations, and we’ve had sex scandals—but Trump rolls it all into one, with a dash of collusion with a hostile foreign government thrown in. Add to that the infusion of half a billion dollars into the Trumps’ Indonesian real estate project from China led to an almost instantaneous suspension of fines on a Chinese company to save “Chinese” jobs—despite that company’s involvement with North Korean and Iran—at the expense of American jobs. The US government is currently for sale. I don’t think that would be so for many of the detestable characters on that list. In truth, can we go any lower?
3
Pence has some highly dubious personal beliefs, but Donald Trump is uniquely amoral, greedy, incompetent, and untruthful. The world would be safer with a President Pence (until 2020).
Surely, Hillary must be there, somewhere?
Mueller will submit his findings.
Morning Joe and Mica will crow.
The Supreme Court will cow.
The congress will avert their gaze.
Nothing will change.
Sleep well and dream about voting.
10
To my mind a constitutional crisis is already well underway as evidenced by the biased investigations by Republican-controlled Congressional committees. If Mueller is allowed to continue I can only hope that he has such convincing evidence of wrong-doing by Trump that Congress will be shamed into acting. If Congress still does not act or an impeachment attempt fails, why couldn't Mueller's grand jury still move to indict if there is sufficient evidence? I do not see the options (impeachment vs indictment) as being mutually exclusive. At worst, an indictment would merely trigger the next chapter in what is already a constitutional crisis unless SCOTUS is as partisan as the Republican-controlled Congress, in which case Republican solidarity that effectively destroys our system of checks and balances and green-lights foreign interference in our elections could spell an end to our experiment with democracy.
21
Mueller's investigation of Trump may never lead to an indictment of Trump but it has already led to an indictment of the American people who continue to support Trump.
71
The reason that Trump could “shoot someone in the middle of Fifth Avenue and face no legal process whatsoever” isn’t because he cannot be indicted while hiding behind the skirts of the presidency, but by his own personal guatamaliness. He was Teflon before the presidency, it’s not unreasonable to suppose that he will continue to be so after it.
The author’s argument that concerns over a “perjury trap” are unfounded patently are naïve. We’ve seen in the past that such indictments (for “perjury”) hang on the interpretations of men, not on indisputable facts (refer to the travesty of justice that was Scooter Libby’s indictment and trial). Those men could have ideological agendas and other motivations for revenge against those once in power that have nothing to do with justice. We don’t know, for instance, who will govern the House come early January of next year – or really even the Senate. We DO know that Democrats generally despise Trump with a passion that hasn’t been seen since Republicans’ hatred of FDR – not even Nixon rated so much disdain and malevolent intent.
Then, there is the unquestioned tactic of prosecutors to TRY to get targets to say something that could be argued to be “perjury”, in order to develop leverage to bear down on the target.
Mr. Katyal, in his deep-dive into his own legal navel, ignores the most obvious possibility supporting a decision by Mueller not to indict the president: he HASN’T found compelling evidence that Trump broke laws.
3
What’s more, Mr. Katyal fails to make his primary advertised point, that an inability to indict a president could hurt Trump. He argues that Trump couldn’t take the Fifth in a subpoenaed deposition if, due his status as president, he could not be indicted, because by the nature of his position he couldn’t incriminate himself. However, Trump will not be president forever, statutes of limitation will not run out by 2021 and probably not by 2025, and even if they did could be extended by act of Congress or the Justice Dept. if compelling evidence were presented that a trial was warranted (have to review Bill of Attainder provisions in the case of Congress, though).
The inability to indict a president has no necessary bearing on the vulnerability to indictments of a private citizen no longer president.
But no worries (at least not to me): if Muller decides not to indict Donald Trump, I’m confident that it will be because he doesn’t believe he could prove that Trump broke laws – unless he tricks Trump into saying something during a deposition that SOMEONE could argue was “perjury”.
1
Democracy is not just about the written rules, but the unwritten ones as well. When the latter are flouted, and politics becomes a Middle -Eastern style no rules game, even the strongest constitutions eventually crumble. The amount of abuse democracy can take is limited, go to far and it will cease to function.
If America continues to play by Middle Eastern rules, it will end up with Middle Eastern outcomes, assassination and civil war will become the tools for effecting change.
27
As a lawyer who studied under some fine constitutional law professors at Cornell, the author’s reasoning is the clearest and most cogent explanation of the barriers and interplay between the powers and limits on special counsel, Congress and the DOJ.
Unfortunately, none of these mechanisms nor the underlying constitutional “logic” are reducible to simple, accurate sound bites for Rudy or Fox News and its tribe. Thus, the TV lawyer’s views will carry the day sadly, placing out very system of government in grave jeopardy.
26
It's hard for me to understand how legal scholars can conclude the president cannot be indicted while at the same time saying, as I'm sure every single one would say, that no one is above the law. The Constitution and its history are quite clear that the impeachment clause is not intended for legal crimes; it is political, to dismiss a president who is acting against the nation in some way to be decided by Congress. Fortunately, only the Republican party has unscrupulously bent the impeachment clause out of its intended use. I refer to the Clinton impeachment proceeding; the A. Johnson proceeding, with 150 years' perspective, looks like we might well be better off now if it had gone through.
6
Not to argue with a genuine legal scholar, but he's overlooking one practical reality. First of all, it seems that recent decisions have said that the president is in fact above the law. trump and his people will spare no expense, time, or intimidation to see that that holds true. The "idea" that the no one is above the law has become just that, an idea, not legal doctrine.
The practical reality, not the legal one but the way things work in the real world, is that the impeachment process is not a judicial one, it's a political one. No congress will impeach a president of its own party, especially not the current one which has recast itself to be trump's toady. If Katyal or Mueller or the American people (remember them?) are counting on impeachment to see justice done, they should not hold their collective breath.
15
"If congressional leadership, for example, was in criminal cahoots with the president..."
Yes. I do think we need to hear more about how well our system is equipped to deal with contingency.
Do tell.
21
Given the apparent cooperation if not coordination with Trump by some members of the Congress, a.k.a. "nefarious congressional activity," are they beyond the reach of Mr. Mueller investigation? What happens to them, if Trump is indicted or impeached?
23
The irony is that what would benefit the country is, in fact, an "independent counsel" - who would have the authority to write a detailed report . . . ..
I was a public corruption prosecutor for the component of DOJ's Criminal Division in the 1990s that undertook the Independent Counsel preliminary investigation (to determine if there was cause for the appointment of an Independent Counsel). In my view, what happened is that the existence of a series of Independent Counsels put too much strain on the political elite and their supporting cast (lobbyist, lawyers, political donors) and those who benefitted from the protection of the political elite (the financial elite and other protected strata of US society). The strain arose because the political elite's actions and business and other dealings were put under too much scrutiny - and the reports of the findings were too public. Put simply: they looked bad.
It is ironic that the author of the Times piece was part of a step that restricted this public reporting in favor of a process (the Special Counsel appointment) that is much more constrained . . ..
11
When people, such as Mr. Katyal, say "impeachment", they usually seem to mean impeachment followed by conviction. Without conviction by the Senate, the president continues in office and nothing changes. I'm surprised Mr. Katyal, a lawyer, didn't say that in so many words, even though his meaning was clear enough.
9
As one opposed to Trump on many grounds - ideological, ethical, fitness for the job - I am OK if Trump is not impeached. My partisan hope is that the Democrats retake both houses of congress. Trump can continue to wreck the Republican party until the 2020 election.
Impeachment would be a real problem, not least because of the radical religious agenda of his successor.
49
And impeachment would be a problem because 30% of the country will see it as a coup. Though they would see his non re-elecion in 2020 as a coup as well. And those 30% are also probably a lost cause who should go form their own gov't - or lack of one - anyway.
3
Actually it's quite the opposite. If you can't indict Trump -- what is the point of questions which go to his state of mind or intent?
3
The point is to obtain his evidence, which is obviously relevant and material to the Special Counsel's investigation of Russian interference with the presidential campaign. The state of mind or intent of any witness or subject is important for a full understanding of the person's evidence, and is routinely inquired after by a prosecutor.
13
One question only is relevant: "Is this right?" A question America seems unable to ask itself much less propose any answers. Until this question can be applied to Trump, gun laws, immigration, fairness in health care, then America will stay trapped in this morally-bankrupt quagmire.
31
If Trump has nothing to hide he can consent to be interviewed. Isn't Trump the one who said that taking the Fifth was a sign of guilt? And why should it matter when the investigation ends if he's innocent? If it had been a Democrat in the White House the GOP wouldn't care when it ended. If I were a GOP candidate I'd disown Trump in a minute. He is not a competent president. He is not worthy of respect. He is not loyal to anyone but himself.
If he is impeached, like Nixon and Clinton before him, it will be his own hubris that does him in. And he will richly deserve it for what he's done.
36
Nixon left office before he could be impeached. Clinton was never going to be impeached; the Senate refused to convict on the House charges; he served 8 years as President. Trump will not be impeached by a Congress which has benefited from signing tax cuts for their rich donors, his Executive Orders which benefit his cronies; and, his absence from the WH allowing his Cabinet to run the government on behalf of plutocrats. This is a textbook case of Crony Capitalism. Historians will write volumes about this Administration, the blatant corruption and lack of any interest in, or knowledge of actual governance. The totality of damages to the environment, judiciary et al will make the Tea Pot Dome scandal look like middle school level corruption.
1
Marbury V Madison-Judicial Review--Can consider the fact that this President --or ANY President--is NOT above the Law and review the Constitution accordingly to reflect that it adheres to the principles that it sets forth. And in doing so--allow to indict a sitting President. With Mueller's investigation discovering reasons to indict--it stands to prove all the more that he should not be above the law--as our founders designed to prevent with impeachment. Impeachment alone argues that any President is not above the law. And Marbury V Madison would prove to support indictment of a sitting president so he/she could not escape accountability due to the shield that the office provides. Neither with a pardon or hiding or escaping their crimes because of power. This is why our founding fathers gave us the Constitution. He must be indicted before he can leave office or before he can be pardoned by Pence.
10
The last thing Democrats want following a win at the mid-term elections in which they retake the House, is to impeach Trump. Impeachment will play into Trump’s playbook of conspiracy theories. Better keep the threat of impeachment than actually impeaching Trump.
In my view, keeping Trump in limbo would be the best course of action.
30
"In my view, keeping Trump in limbo would be the best course of action."
Yes, in particular considering the fact that his impeachment means that the democrats have to deal with "president Pence" in 2020. But "keeping Trump in limbo" would drive him crazy. Putting the enormous, unrestrained, power of US president in foreign affairs in the hand of an unstable, frustrated, DJT is dangerous as he may go for break and blow up the world.
1
This is a reach.
The 5th amendment doesn't protect against self-incrimination solely if the threat of criminal prosecution is not "imminent"?
Where did that Constitutional rule come from? I'm pretty sure the author just made that up out of thin air because it doesn't make any sense. Trump can be prosecuted at the earliest in 2.5 years or so when he leaves office.
The whole argument falls apart when you see the faulty assumption.
3
"...nor shall be compelled in any CRIMINAL CASE to be a witness against himself..." Constitution of the United States of America
Ergo, if there is no "criminal case", no Fifth Amendment protection.
1
A president is above the law? Where is that written in the Constitution?
Either way, a prosecutor is supposed to indict where they think a crime has been committed, regardless of the political game. It's their job.
26
Most arguments suggesting Trump may be stopped rely on the theoretical intent of those who framed our constitution.
In theory, congress should have legitimate cause to take action yet it does not.
In theory, someone like Trump could never be elected, yet he was.
We are facing the definitive test to see if this so called American experiment is the real deal or nothing but a flawed and ultimately unproven theory.
19
What seems most likely to me is what Comey did to Hillary -- a damning statement, a letter that spells out the worst, and then a conclusion that the law does not allow a reasonable prosecutor to take action. All of it right before the midterm elections, just like was done to Hillary two years ago.
The positions will be reversed, and the screams and cheers will be reversed, but the action is actually very much the same.
It will be a display like last time of total partisan hypocrisy, absolutely nauseating.
And yes, they are both guilty, and neither should get away with it, and neither should be President.
2
Except Hillary was not prosecuted. That story is over.
We do not yet know the possible extent of Trump's crimes. That story is not over.
There is no equivalence.
26
This is a bit too much, that not being able to indict Trump could hurt him. And, it is a bit too academic. The reality is that if the Democrats retake the house ( and it looks like they will), Trump will be impeached. It will not matter what he has done or not done since both parties have become so partisan. DT will be impeached because that is how the country will be rid of him. And, if the Democrats retake the senate and they might, DT will be convicted. He will then be out of office. It is all political and quite without regard to high crimes and misdemeanors. Once out, DT can be indicted. But, really, who cares then? The point is to just get rid of DT by hook or crook. DT's performance aside, it is a bit sad that the US has to resort to this kind of "work around" to get ride of a person that was elected, like it or not. So, he will be tossed out, more by crook than hook.
6
There is zero chance he will be impeached AND convicted. Conviction in the senate requires a 2/3 majority. If the Democrats retake the senate it will be be by the slimmest of majorities. Few GOP senators would dare go against their trump loving constituents.
That’s completely inaccurate. Yes, an impeachment vote requires no more than a simple majority vote in the house; but removal from office requires a two-thirds vote in the Senate. Even if Democrats reclaim control of the chamber, it is difficult to fathom 16 or 17 Republican senators breaking ranks with the figurehead of their party — especially given the cowardice and duplicity of the party’s congressional leaders (a term i use grudgingly), who have made it clear that they have no desire to perform their oversight role when it comes to this criminal of a president.
"So, he will be tossed out, more by crook than hook."
No, I disagree. He will be tossed out because he is a crook, in every definition of that word.
His "performance" is and has been chaotic, which is to be expected when one operates by complete ignorance of facts. US economy has its own dynamics and government policies can influence that only over the long-term. As such, the current vitality of the US economy should be credited to the Obama administration not the Trump's.
All I can say at this point is that there is something wrong with our constitution if it is interpreted to mean that the President is above the law.
41
Hopefully the evidence of wrongdoing by this Fake President, ultimately presented by Mr. Mueller, will be so overwhelming and riveting, involving a number of highly scandalous felonies, that the American citizenry by consensus will demand, or else, that Congress impeach, convict, and remove our National Nightmare posthaste. Then, once out of office, further resolve that he be accordingly tried in federal court for his offenses to reaffirm the founding principle that no person in this nation is immune from being subject to controlling law.
16
"... once out of office, further resolve that he be accordingly tried in federal court for his offenses ..."
Your scenario overlooks two important facts:
1. The Vice President would be sworn in as President.
2. The President has the power of pardon.
1
Is it true that no one can receive a pardon without first acknowledging their guilt? That would work for me.
Remember Ford/Nixon.
Trump would expand Nixon's saying:
"When I do it, and later I become President, it was never ever illegal."
I am no lawyer, but it looks to me like Katyal's logic is flawed. If the President cannot be indicted while in office - which seems to me likely - then he would still be protected against self incrimination. He has not been pardoned, and if he was pardoned that would mean the acts were not incriminating. And when he leaves office, unless his successor is a Republican similar to (or even worse than) Ford, he will likely be tried for a variety of crimes.
1
All fine and good, but, the coup has happened. The rule of law is gone.
17
The GOP Congress will not impeach, they will receive the report and bury it, shrug their shoulders, say it is politically biased, and that will be that.
19
I'm not a Democrat, but I have no other choice when it comes to casting my vote in the coming elections but to vote for the Democratic candidate. Every moment Mr. Trump remains POTUS he is undermining our fragile democracy, weakening our international positions and through his vapid, juvenile pronouncements and his relentless war on truth, endangering us by making it impossible for our adversaries to take us seriously. This man is just plain unfit to hold the juniormost janitorial position in any public office and, beyond politics, he has already debased many aspects of our national enterprise beyond repair.
I must vote Mr. Trump and his enabling legislators out.
129
"If congressional leadership, for example, was in criminal cahoots with the president..."
I fear that is what we face, given the large ($30M?) Russian funding via the NRA to the Republican party for the 2016 election.
We must elect Democrats to find out.
15
I like this coherent argument, with some concerns.
I think the point is that Trump is to some extent trying to have his cake and eat it too: If impeachment is the only remedy, why should he not have to testify after a subpoena? The short and quick answer is that the prohibition of indictment, if it exists at all, only postpones the indictment, and after he leaves office the criminal trial would proceed. So he could indeed "take the Fifth" and refuse to testify. But taking the Fifth in this case is about as bad as admitting guilt.
Second, Mueller has got the goods on Trump already, anyway. Each and every daily or hourly attempt to interfere with the progress of the investigation or case ("Witch Hunt!") is an attempt at obstruction of justice. This is an amusing corollary to each claim by Stormy Daniels resulting in another $1,000,000 in damages: only in this case it has some validity.
Third, this article shows the way out of this "cannot indict" problem: get a release from the DOJ. End of issue.
Personally, what I see happening is Mueller making such a request to indict to the DOJ about the time he indicts every single Trump family member and aider and abettor, with the possible exception of Barron and Melania. Trump is going to lose all his inner circle. Some of those who are indicted are going to want to avoid prison, and will flip.
Still: Trump is a prodigious liar, without remorse or concern. So why does anyone believe anything he or his attorney says?
15
The logic is a little tortured, or wishful, I think. If the Dems don't win the midterms impeachment will be hard to imagine; if the writer's interpretation re indicting a sitting president prevails--pretty likely given that any indictment would have to be ok'd by the DOJ--there will be no indictment. The result: Humpty Dumpty will remain perched on his wall, holding Nuremberg rallies for the faithful, and thumbing his nose at the rule of law.
7
The entire discussion of "not being able" to indict a President is maddening and specious.
The reason there is nothing in the Constitution about indicting a President is the same reason as there is nothing about indicting a dog catcher.
We had fought a revolution so as not to have a king.
The President is a citizen in every respect.
If he robs a bank, kills someone, etc. he can be, and should be arrested and prosecuted just like any other citizen.
26
Yet Trump claims he could shoot someone on Fifth Avenue and there would be no consequence ... and he appears to be proven right. Only when Americans decide you don't want to live under a dictatorship, will change happen.
2
Neal Katyal is playing the legal "what if" scenario. He is also assuming that Trump has committed some indictable or impeachable crime. Trump's lawyers would fight an indictment for sure. Most likely scenario is impeachment. Impeachment requires that the Dems control the House (likely).
After articles of impeachment are passed, it goes to the Senate. When Nixon resigned, the Republicans were in the majority in the Senate. Republican senators persuaded Nixon to resign rather than be removed from office. Bill Clinton survived the Senate vote.
2
NO, the Republicans were not in the majority in the Senate when Nixon resigned.
It anyway takes a two-thirds vote of the Senate to remove a President from office. Even if the Democrats manage to retake the Senate in November, they certainly will not have enough votes to convict if the House impeaches. It's far more likely that plea deal will be arranged: Trump will never be indicted except for something minor if he voluntarily leaves office.
What is right and proper by any standard of established law is beside the point. The point is that the Republicans own all three branches of government and will not take action against Trump.
It is highly doubtful that Gorsuch would rule against Trump in any case brought before the court, and the Senate lacks enough Democrats to remove him from office. That takes care of that.
If Trump serves out his term he will leave facing a slew of criminal charges for money laundering, tax evasion, racketeering, as well as spectacular violations of the emoluments clause, all of them carrying long prison sentences. But in what shape will this country be in 2020? How much damage will be done before we arrive at that end game?
42
The remedy of impeachment is available for certain political crimes, according to the Constitution. And its consequence is not a criminal penalty which is why most scholars agree that the President can then be prosecuted.
But for non political crimes, that is, those that are not high crimes and misdemeanors, the argument that impeachment is the only remedy fails. Impeachment is not available for those crimes! The Court and common sense would never agree that the President is immune and can commit those crimes, at least while in office, as, when, and where he desires. Therefore he can surely be subpoenaed, indicted, and perhaps tried while in office. Several politicians have exercised their offices while in jail, including one Congressman shortly after the Constitution was adopted.
10
Mr. Katyal's argument seems overly convoluted. A more straightforward approach would have an indictment drafted and voted on by a federal grand jury, returning a true bill accusing the President of multiferous crimes and relevant misbehavior demonstrating his unfitness for office, whether as an unindicted co-conspirator in crimes committed by other persons on the President's behalf. That indictment could be appended to a report to Congress, which report would necessarily include a detailed narrative summarizing the evidence against the President, the applicable law, and a recommendation that Congress act in accordance with its Constitutional authority to remove the President from office for cause. That report could include information which, if presented to a federal grand jury, could implicate certain Members of Congress in the President's scheme to subvert the Constitution, democratic institutions of government, and the rule of law. The implication would be clear, save the President or save yourselves; you cannot do both. Ridding ourselves of Trump implicitly requires the deracination of Trumpism from our political institutions. Tepid, half-measures will not do. Both prongs of the attack on corruption, mismanagement, and acts done in derogation of constitutional government and contrary to the Oath of Office that each Senator and Member of Congress takes must be pursued simultaneously. Both the President and Congress are on trial, and you can guess who will blink first.
19
The whole picture which includes the ailing Rudy Giuliani displays a President and administration that is so guilty that they are pulling out every device to obstruct the investigation. If there is no guilt why the enormous blocking effort? Every indication is that Trump can not prevail. Even his Congressional support is beginning to splinter. These guys know when Trump goes down so will they. At the heart of this is the fact that the rule of law will win out, inspire of Trump and his cronies.
23
Isn't there a difference between criminal conducted that occurred prior to one being sworn in as President, such as if there were a finding of conspiracy to win the election with help of a foreign government, as opposed to a potential obstruction of justice, which occurred while he was President. The Nixon-Guiliani notion that "if the President does it, the act is not illegal" doesn't apply to conspiring with a foreign government, or any money laundering charges either.
16
For all Trump's talk of Mueller and his "Democrat" team conducting a "witch hunt", people forget that Mueller is a Republican and, more importantly, a conservative. He may very well conclude, like Trump's generals, that he has to take one on the chin for the good of the nation. If Mueller knows anything it's that Trump is willing to unleash the furies and the dogs of war to survive. So, I won't be the least bit surprised if Mueller, eager to avoid a civil war, comes back with nothing on Trump.
6
If that is true, then we are forever doomed.
I say that Mueller may have the back bone to
stand up to this mewling bully, because he
actually believes in the constitution and
much maligned democracy. Also do the Oligarchs
own Mueller? If so then we are doubly doomed.
But too many people on the Mueller team know
the facts. Will they be eliminated if they reveal
what they know. I cannot think this country will
continue to lie down for trump. And how again,
is it good for the nation to let trump get away
with destroying our country?
If Rudy Giuliani told me the sky was blue, I'd go outside and check first.
Trump will have to either face an interview or resign. All this barnstorming by his new lawyer who was supposed to wrap this up three weeks ago and the end is three months away if everything breaks right (hint: it will not as long as Trump is trying everything he can imagine other than simply declare his innocence and cooperate fully).
10
What if Mueller conclude that Trump did benefit and votes were switched by Russia to benefit Trump. This mean Trump never won the election. Then what?
WHOLE GOP SHOULD BE IN JAIL?
He may not uncover the direct call between Trump and Putin on that, but there are enough public evidence to suggest mutual support.
11
Katyal, you supported Ashcroft and Gorsuch. I think all your opinions should start out with those two disclaimers - oh, will you be arguing before Gorsuch soon, and do you care to curry his favor?
Not a fan. Opinion flawed, as is your legal heritage.
18
The writers of the Constitution, in their wisdom, gave Congress the right to impeach the President if they wish to do so. They clearly did not envisage what we would call a criminal trial based on evidence and testimony, but rather a political vote based on widely known actions by the President. They expected the Senate to debate whether the President's overt and public acts were proper and constitutional, or not, and then render a judgement.
The idea of punishing a President or sending him to jail did not enter their minds. They addressed the question of how to get rid of a President who had abused his office, and they were not worried about what would happen to him once they got rid of him.
Under this scenario, testimony would not be required.
4
The problem is compounded by the fact that the DOJ is a branch of the executive. If Mueller, Sessions, the FBI chief and Mr. Rosenstein can be fired by the very man they are investigating and Congress refuses to act on impeachment, then where is Justice in regards to the acts of a law breaking president? The Congress needs to pass an immunity from firing provision for the involved DOJ investigators, but once again this demands that a partisan Congress take action against their own.
Ultimately, that we have a government controlled by one party intent on letting off the hook a president who considers himself above the law may destroy our democracy and where are the sane 'representatives' who care about our democracy more than justifying their own power?
49
I guess this is a well reasoned, well written article (no lawyer here)from the man
who sat in front of the judiciary committee and heaped praise on Neil Gorsuch, who gave us
today''s supreme court decision allowing employers to take away the rights of non union workers to organize against discrimination and
pay inequality.these high end legal scholars and their chummy, country club reasoning ought to occasionally consider what effect
their words and actions have on we average
Joe and Janes.
45
The fact that it seems to require this level of rhetorical artistry to conclude that a sitting president can, under certain conditions, be indicted - kinda, sorta, maybe - proves just how corrupted our legal system has become. Mr. Katyal surely takes himself quite seriously. So too the other lawyers who 'wrote the rules' and "constitutional scholars" who opined that the presidents who were kind enough to appoint them to high office and hence made their careers, are beyond the reach of criminal law. How is it that the principle that no one is above the law depends on a couple of legal bureaucrats at the DOJ buying into a bit of convoluted sophistry? The South Koreans just jailed their former president without a lot of fuss. But somehow our sacred constitution doesn't provide for that?
55
Well, Gary, it's complicated. Even a guy in Texas can get that, right? Trumpkins was anticipated by the Founding Fathers, and even Rudy's shouting and bullying won't get him off the hook.
2
Thank you Mr. Katyal, for explaining the possibilities in the clearest way imaginable. Obviously, given the machinations of a number of Republican members of congress who have bent over backwards to make it appear that DT is innocent of absolutely everything, Mr. Muller may have to indict the president. And why not? After all Trump has broken every rule that he possibly could, and some laws as well. Perhaps it's about time he got a dose of his own medicine.
75
A problem is that the "our system," regardless of how well the rules are written, still depends on public support. If Trump and the Republicans can kick enough sand in people's eyes, create enough confusion -- which I think is the intention of Trump, Guiliani, et al.'s pronouncements -- then support for the system may ebb. This is the path to authoritarianism.
91
A great analysis, as expected from a great legal mind. Unfortunately it is depressing to read. The fact that we have to go this deep into the analysis hints that our system is already somewhat broken.
24
I read this article with great relief. I hope Neel is right. If so, then we do have a genius of a system in place. Perhaps in a distant future we will look back and thank Trump for testing the very limits of Law and Order in this country. Perhaps this is what he meant when he claimed to be the Law and Order president.
11
My money is on Bob Mueller. I think Donald and his children have been laundering money, specifically rubles, for years. Trump Tower is a veritable Moscow on the Hudson.
We'll see what happens when Jared and Don Jr. get indicted. It appears that Michael Flynn entered a guilty plea in part to shield his dope of a son from being charged. Don't expect such paternal sacrifice from Donald, unless Ivanka is targeted.
We can debate this ad nauseam, but in the end, it will only unfold one way, still to be determined.
In the meantime, VOTE. If the GOP does not control Congress, more meaningful oversight can take place. I realize that it is a small consolation, but it is the only one that each of us can push forward, singly and collectively.
293
Regardless of legal circumstances, I doubt that Rosenstein would boldly approve an indictment of Trump. In 2018, independents will vote GOP in order to stop the drama. In 2020, however, independents will have to vote democrat in order to stop it.
3
all this lawyer talk means little.
If the Feds get close then Trump will simply pardon himself and all the rest of the crew. He's already given a sign with the pardon of Sheriff Joe. Add in some talk before the election to rile up the base, maybe even a war for good measure, and the Republicans keep Congress and impeachment is off the table too.
12
Someone please explain: If a President is impeached but not convicted, does that mean he is not a sitting President? The article, if I understand it, states this is so.
Thank you scholars.
6
I believe impeachment articles are brought by the House, after which there is a trial in the Senate, during which the sitting President can be acquitted or convicted. (Clinton was impeached but acquitted, and remained the President.) It is a political process separate and apart from a criminal indictment and possible conviction, or acquittal. So, a President could be impeached but acquitted in the political process, and still be indicted, tried and convicted, or acquitted in the criminal courts.
7
Ah. no. Obviously Bill Clinton WAS impeached and not convicted and was STILL the sitting President.
Mr. Katyal, you wrote: "the remedy for a president who commits a crime is to impeach him first (so he is no longer “sitting” and could then be indicted). "
This is absurd. Clinton was impeached and remained the sitting President. I assume that you are an attorney, or would not have been the acting Solicitor General. If you meant 'impeached and convicted' that is what you should have written. Can you please clarify or correct?
Dan Kravitz
23
You are a bit confused by a confusing process, that could take place in two different forums, one political and one criminal. Impeachment articles are brought by the House, after which there is a trial in the Senate, during which the sitting President can be acquitted or convicted. (Clinton was impeached but acquitted, and remained the President.) It is a political process separate and apart from a criminal indictment and possible conviction, or acquittal. So, a President could be impeached but acquitted in the political process, and after his term ends still be indicted, tried and convicted, (or acquitted) in the criminal courts. What the author is suggesting is that since a sitting President cannot (arguably) be indicted criminally, he could be first impeached and convicted in the Senate, and thus removed from office - after which he could be indicted criminally.
4
The House voted to impeach Clinton; the Senate refused to convict. Impeachment charges all had to do with lying about some sexual contact with an intern; the whole farce ended at that point. The American public stood with Clinton in large numbers; he was a very good President who left office with a full Treasury. Bush went through the money with an unnecessary, undeclared war on a country which had nothing to do with 9/11. We had Cheney and the no-bid Halliburton clean up in Iraq. Bush left us with a deficit, as did Reagan and his "Star Wars" defense expenditures. Let's see how much debt Trump leaves with his tax cuts and gifts to large polluters.
9
The impeachment of Bill Clinton by the House of Representatives is what led to his being tried by the Senate. The two charges perjury and obstruction of justice. However Clinton was then acquitted of these charges by the Senate. In other words, the process of impeachment of Clinton failed.
1
On what basis should Americans have any faith that our constitutional system of checks and balances will work in this case? Can you name a single republican member of Congress who has opposed Trump who has not either already resigned or been diagnosed with a terminal illness? The rest would be happy to goose-step behind him to the gates of hell and take the rest of us along for the ride. And as for our Supreme Court, the last time it had the chance to rise above rank partisanship, it handed us Bush v. Gore, the jurisprudential equivalent of the Hindenburg crashing into the Titanic. America had a good ride for a couple of hundred years, but the party is over. There are no more heroes.
48
Add to the above with the Gorsuch decision against an employee of a large container company; he was caught in an ice storm with a full container. He made a decision to not freeze to death, and to not drive a full container on iced over roads. The employer fired him on the basis that he should have stayed and protected their consumer goods; Gorsuch upheld the employer, even if he would have frozen to death over time. Elections do have consequences, first among them are the opportunity to make life time appointments to Superior Courts and to the SC.
94
If a person cannot be charged, then they cannot plead the 5th, as there is no penalty for telling the truth.
But I am not a constitutional lawyer, I am just a 71 year old living in HUD senior housing, wondering if he will get away with raising the rent for many of my neighbors. I wish he would tell us why he wants to hurt us.
Hugh
107
The argument is that he cannot be “charged”, but only so long as he is sitting President. If removed by impeachment, or indicted after his term is over, he is still subject to criminal prosecution. Thus, the 5th Amendment is still an option for Trump to use.
5
The constitutional analysis seems pretty well laid out here, so there's no need to rehash it. But putting aside the well-written legal theory, it's the almost natural absurdity of an absolutely un-indictable president that sets off alarms. Some say that there are no circumstances under which a sitting president may be indicted; that only a political process such as impeachment or the end of the president's 4-8 year term can render this one particular person subject to any law. It is just a hard sell for me to believe that the framers, having just waged bloody rebellion against the British Crown, would essentially allow a president to act with complete and utter impunity so long as they remained popular enough to stay in office. Right now we are talking about Trump, who can only serve 2 terms.
But there were no term limits when the Constitution was signed in 1787. Those weren't introduced until the 1950s, meaning simple passage of time was not meant to be a check on power. So for the first ~160 years of our country, would a criminal (but wildly popular) president be immune from being charged with ANY crime? Let us suppose a president personally murdered an unpopular group of citizens, but had a base of like-minded supporters just large enough to get him elected and stave off impeachment year after year. Would popularity effectively transform a president into an absolute sovereign? And what if someone ran afoul of such a person? Would they be legally defenseless?
26
It has happened before: "[..] In his brutal military campaigns against Indians, Andrew Jackson recommended that troops systematically kill Indian women and children after massacres in order to complete the extermination."
Sounds like Putin.
2
One obstacle for Mueller is framing a coherent case, one that say a Trump supporter could understand: A very tall order... With the personalities multiplying daily, there are so many dots to connect in this narrative, so many tangents, that it would take an 18 dimensional hyperspace to fully graph out. I hope Mueller can boil it down to a few of the most egregious charges. Otherwise it will appear that he is just throwing the kitchen sink at Trump, which is exactly what he wants.
11
By the time that Mueller and SDNY are finished with their indictments (Disclosure: I'm betting that crimes involving Don Jr., Eric, Ivanka, Jared, etc. will be passed on to NY where they reside and do most of their business/banking, where there are very strong State laws against conspiracy, money laundering, bank fraud, etc. etc. and where Federal pardons would have no reach), Trump will have already started to implode/explode, if not stroked out and have fallen over dead. Don't give up hope.
1
The idea that a president cannot be indicted makes absolutely no sense. It didn't for Nixon, Clinton, or anyone else. Sure... congress can impeach but that ought not be a barrier to criminal liability. These articles on the topic always say the same thing... Some unnamed scholar says you can't indict and then there are some guidelines.
Well, if we've learned nothing from our Republican office holders these last few years it ought to be that these guidelines don't matter.
A president who committed crimes before being elected ought to be subject to indictment and trial.
Oh well... I guess we just wait until the next election and pretend all this other stuff isn't happening. Good luck.
21
A sitting president who conspired, colluded with, or welcomed the assistance from foreign entities during the process of campaigning for election should be subject to indictment and trial.
3
The most important sentence in this opinion is:
" If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment."
This is exactly the situation we are facing now. The founding fathers wrote the constitution based on the concept that the powers of a despot would be kept in check by the congress. However our congressional leadership has repeatedly shown that they are willing to overlook tradition, precedent, patriotism, corruption and basic morality in support of a president who lies and commits crime on a daily basis.
Mr. Mueller must pull the trigger and request a departure from DOJ policy and request an approval for indictment from the assistant attorney general. This should be done publicly. If Trump proceeds to fire both Mr. Rosenstein and Mr. Mueller at that point, there will be no doubt in anyone's mind as to what sort of man they have put into the white house. And it should be done right before November, so that the midterm elections can serve as a public referendum as to the type of country that we want to be.
384
I think the 'pubs are in a bit of a tight right now. Back in '09, a bunch of angry ultra-conservatives formed what came to be known as the Tea Party. The 'pubs had two choices: a) move toward the left, poaching conservative Democrats and independents, thus maintaining political relevance, or b) move toward the right, pulling in the TPartyers. They chose b). Flat-out pulling the plug on Drumpf will cause them to lose influence, possibly for years to come. I think option a) would have been the best idea, possibly with the result of a small ultraconservative third party forming, but that ship has sailed. Whatever happens, I'm guessing the next 2-6 years will be a favorite for history professors.
9
If President Trump is impeached, but not removed from office, the conclusion must be either he did not commit an offense serious to be removed from office or he did not commit the acts alleged. He will have had a trial and it is unlikely that a reasonable prosecutor would press forward with a criminal case.
You are not serious, are you? You think there is no difference between congress and a criminal trial court?
25
The right is vociferously complaining about anti-Trump bias on the part of a few people on the FBI investigative team, and arguing this makes any charges suspect. So, the right apparently thinks political bias makes it impossible to get an impartial hearing - except if charges against Trump are brought up in the Republican-controlled House for consideration of impeachment. The Republicans’ refusal to consider impeachment in that instance would be just fine. Just another example of how the right always has two sets of rules; one for them, and one for everyone else.
10
I think Mueller is perfectly capable of indicting the President. The question is whether an indictment would have any practical impact without impeachment. My understanding is the President is immune from any court proceeding barring impeachment. Congress determines whether the criminal activity that resulted in the indictment constitutes a high crime.
The debate is something of a chicken and an egg. If Mueller were to indict Trump before impeachment, the indictment would just sit on the books until Trump is no longer "sitting." If Trump is impeached first, Mueller is free to indict the no longer "sitting" president. Either way, the president is still indictable. Congress is left to decide whether the violation is worthy of unseating the president. Mueller has the duty to inform them. This is why the policy not to indict the president exists. Law enforcement is deferring their authority to Congress in the unique instance of the president. Nothing says they relinquished the authority entirely.
There's one tricky spot for Mueller though. We know Trump is actively seeking grounds for termination of both Mueller and Rosenstein. If Mueller goes against DOJ policy without rock solid justification and legal backing, he might hand Trump an excuse. Theoretically the indictment would stand but Mueller may not have an opportunity to defend his findings to Congress outside civilian testimony. That is certainly a gamble that gives some leverage to Giuliani's otherwise confused position.
15
IAnd if Trump cannot be indicted and congress refuses to impeach him, does reelection continue to protect him from prosecution?
6
If Mueller moves to indict and is blocked or Congress refuses to impeach, do you really think we will have a November election? If we do it will be meaningless since in all likelihood the election will be fraudulently handed to the Republicans. Sound preposterous? I hope that it does. But, if Trump can get away with his activities anything is possible.
2
It's about time that the Democrats begin to seriously
talk about Trump's corruptions and Russia
hacking the election.
November 2018 is coming soon.
1
American citizens voting and protesting is the greatest shield against tyranny and Trump's
corrupt regime.
November 2018 elections will happen and the Democrats will put the GOP into the bust bin of history.
I’m gonna buy Rudy a book for his 1 month on the job present: “Web Weaving for Dummies”....he can share it with the rest of the Administration.
5
Trump and his cronies can read it in jail.
1
How is it that trump, Pence, Pruitt, DeVos, Nunes, McConnell, Ryan and the other criminal accomplices walk about freely, after all the harm they have done, and continue to do, to our country?
Good thing we are generally, for the most part, a peaceable nation which believes in the legal process. In many other nations, these creeps would not make it down the street in broad daylight.
98
"These creeps" do not walk down the street without heavy security. Many here believe in extra-legal solutions. They just can't implement those solutions.
5
Rudy is clever and sleazy.
Mr. Katyal is smart, able to back up his points with supportable reasoning, and give all of us hope that any criminal activity, such as conspiring with a foreign power to throw an American presidential election, will produce the consequences such traitorous and criminal behavior rightly warrants.
24
There may be no applicable precedent, but the stench of corruption that envelops this administration and Trump's cabinet, Jared Kushner, Roger Stone, Paul Manafort, General Flynn, Don Jr., etc. is overpowering. Those who try to describe the search for the sources of this stench as a witch hunt are either willfully clueless or guilty of betraying our country.
111
re: indict, this, of course, is at worst, utter nonsense, and at best, as the writer indicates, problematic.
Spiro Agnew was a sitting VP, and he was indicted, and he had not been impeached.
This establishes a powerful precedent re: the Executive Branch.
Finally (and as an aside) as far as Nixon's allegation that "when the president does it, that means it is not illegal" undoubtedly comes from Ulpian - that Roman Jurist from the later Empire - who said "Quod principi placuit legis habet vigorem", which means "What is pleasing to the leader has the force of law" - so we need to be careful not to mix imperial edicts of the ius civile with democratic, or even republican, principles.
9
Well, what you have, potentially, there is the classic "someone playing both sides of the coin when it suits them."
Indeed, that's a precedent. BUT, one would argue that Agnew was the VP, and not the President.
On the other hand, in a completely unrelated matter, Dickk Cheney successfully argued that the information garnered through his "super secret energy task force" or whatever that was, was subject to "executive privilege." because, as VP, "he" was under the "office of the Presidency.
2
There's also a very good constitutional argument that the President has roles and responsibilities quite different from the Vice-President.
Many of the same people who agreed with the Agnew indictment do not agree with the idea that Trump could be indicted before being impeached and convicted.
https://constitutioncenter.org/blog/can-a-vice-president-be-charged-with...
1
It's not that congressional leaders are in criminal cahoots with the president, it's that they don't care, they just want to appoint as many judges as possible before the trough gets yanked away. The framers of the Constitution made a serious error in making Congress the sole judge and jury for Presidential misconduct, because political realities mean they can never be impartial.
20
A criminal trial of Trump would raise all kinds of legal issues, including whether such a trial is authorized by law. Some of the issues would have to be resolved before the trial could start. These issues would be appealed all the way to the Supreme Court.
From indictment to verdict, the trial of Senator Menendez took 2 1/2 years and ended in a hung jury. If Trump is convicted after 3 years, he may already have been re-elected. The sentencing judge can send him to jail, but he can only be removed from office if impeached. Frankly, I have no idea why anybody would want to go through this torturous process. Impeach the guy, try him in the Senate and let’s do the best we can to send him packing ASAP. Vote Democrat in November.
50
Brilliant piece of work! It makes sense that the President is considered to not be subject to criminal indictment. Since the President is politically elected, if he is potentially guilty of committing an indictable crime, he must be be politically tried, impeached, by the Congress.
Mueller will submit his report to The DOJ and Congress will also get a copy. They will be under tremendous pressure to start impeachment proceedings unless Muellers report indicates he is not guilty of any crime. I think Congress would find it very difficult to resist successfully. I know Nunes and others are yelling that there is no evidence, once the report is completed and released, they will no longer be able to make that claim. Rock on, Mueller !
32
Good luck with the idea that our system is sufficiently robust to deal with the current mess. I hope that’s true but I fear it is not.
104
American-exceptionalists maintain that our constitution is so craftily written and revised to withstand any assault, and reassure us that all will eventually turn out fine; this Trump thing is just one step backward before and after two steps forward. He placed one hand on the Bible and raised the other to swear allegiance to the Constitution, yet he does not know, and does not care to learn, what is written in either.
16
Watching the now-daily attack on the rule of law by the president, his TV surrogates, and the corrupt Fox News personalities, I have gradually concluded that no matter what crimes are brought to light in the coming months, Mr. Trump will never have to face justice.
Do I have evidence that justice is needed? No, but I have never seen an innocent man and his surrogates, such as Giuliani, fight so hard to indict a man's investigators. An inculpable man would sit back, remain quiet, and welcome the probe and its conclusions. Instead, this president, apparently successfully, has daily sought to turn the tide of enough public opinion against the prosecution and any conclusions it may reach that immediate condemnation of those conclusions is foregone.
I just don't understand what has happened to my country and my former party. History's record of dictators who rose through democracy to lead a dedicated and enthusiastic multitude of their countrymen down a path of evil has always dumbfounded me. "How could so many not see what was happening?" I wondered. Now I see it occurring in the United States, and I dread what events the future may bring.
769
That is exactly where this is headed. Once the rule of law can be applied selectively, segregating those who are friends of the president from its governance, while those in power apply those same laws against there enemies while discrediting the law enforcers as well we have lost our democracy
192
Now I see what happened to the Good Germans.
235
I think there are plenty of people who see what is happening, but not enough of those in power. There need to be more of them all around.
73
To decide that a sitting president cannot be indicted for a crime implies that a president can murder someone in cold blood and get away with it.
I don't think so.
203
Impeachment requires "high crimes and misdemeanors", the definition of that is vague at best. Impeachment for lying under oath nearly succeeded in Clinton's case; however, the Senate refused to convict. Impeachment would have succeeded in Nixon's case; he resigned rather than face charges.
18
Obama did it with extrajudicial drone strikes. (And I say that as someone who voted for him--once.)
I am delighted to read that the Groper-in-Chief's supposed immunity may compel his testimony.
At this point, however, would anyone believe him?
38
Indict his supporting cast, yeah, if the evidence supports it.
Let the voters decide upon each and every elected person.
4
The real story is that Giuliani is gaslighting the public just as his “client” has done for decades. One begins to wonder why the chattering class wastes their ink. Ignore this clown and he’ll go away. Trump didn’t hire Rudy for his legal acumen but rather for his ability to sucker reporters, pundits and opinion columnists into giving them air. Rudy and Donald mostly know how to generate media ratings, and the media, pro or con, gobble up clicks and views to the benefit of their advertisers and their own bottom line. That’s the artful deal in a nutshell. Reporting and opining on how the country is going to Hell in a hand basket can be fun and profitable!
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The President won't be indicted, and I suspect he won't be impeached either - regardless of the outcome of the November elections. But several of his campaign advisors, and likely one of his children - Don Jr. - will end up in jail. A very small price for Trump to pay, for almost limitless access to foreign funds, including the recent $500 million "loan" to the Trump organization from the Chinese government.
144
Figures that Don Jr would get subsidized housing on our dime — he’s been booted out of his home - and now WE have to pay for his housing. Impeach AND INDICT! This man must be the case study of what’s rotten, and what must be fixed now before the next thug takes office.
20
Lawyers can debate the intricacies of indictment vs. impeachment.
Citizens are concerned with the legitimacy of the Trump presidency.
If Mueller exposes otherwise-indictable behavior by Trump, the information will become public either through the Justice Department or Congress (likely the minority party). At that point, anyone in Congress who refuses to support an impeachment trial is putting their career at personal risk, because public opinion will be in favor of holding Trump accountable, the vocal minority of his supporters notwithstanding. I doubt most Republicans in Congress will lay down on the tracks to protect Trump if Mueller finds he did wrong.
Of course it all depends on Mueller's conclusion, so let's take a breath and let the man finish.
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"At that point, anyone in Congress who refuses to support an impeachment trial is putting their career at personal risk, because public opinion will be in favor of holding Trump accountable..."
I beg to differ, Ken. The entire Republican Party seems scared to death of their Republican constituents who support this president since they are the overwhelming majority (82% in the latest poll).
This explains the kowtowing of Paul Ryan, Mitch McConnell, in the entire Republican leadership to Trump despite his daily micturating on America. The Republican Party, which I found attractive in the past because of its support for the rule of law, is now just an archaic shell of that ideal. The right is now the party of Trump, despite all his perfidy.
Instead, I believe that anyone in Congress with an 'R' by their name who DOESN'T support this president is putting their career at personal risk.
Horrifying.
36
I have always seen our congress and president as "leaders", but they are always following their base ... so who are really the "leaders"??
That's a great scholarly article. One problem. This author does not live in the real world. Everyone assumes the President committed a crime but not one piece of evidence has come forward that he did anything wrong. This is the problem with the whole story from the begining. The media hates Trump. The Democrats hate Trump. The Washington elites hate Trump so we need a way to.get rid of him.
Unfortunately for them there is no crime. Let's talk about a porn star instead.
2
Um, we might have different definitions of the word "evidence." There's plenty of evidence. The question is how conclusive it is. We'll get closer to the answers when Mueller releases whatever he plans to release.
45
You don't really expect that evidence of wrongdoing would "come forward" do you? If there is evidence it will be closely guarded until the appropriate time. You can't say there is no crime until the result of the investigation is made public.
27
from Mueller?....nothing has come forward.
...and you have absolutely no idea the cards he's holding
so close to his vest....no one has.
Leak-proof
24
Just the fact that this article was written, and that these ideas must be considered, indicates that we are not in a healthy state. All should feel alarmed.
One must also recognize that the investigation was worthwhile even if no accusations are found against Trump because there have been nineteen indictments to date.
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But laws don't apply to Trump.
7
"That is the genius of our system, and the only way to ensure we remain a government of laws which no one is above."
Ah, therein lies the crux of the problem, Mr. Katyal: Trump is trying to undermine the system so that he is above the law and that we no longer have a government of laws (at least, not of laws il dunce doesn't like). And self-serving Republicans in Congress like Devin Nunes, Paul Ryan and Mitch McConnell are aiding and abetting him, possibly for their own potential pecuniary and/or political gains.
159
I imagine Trump believes he is above the law. He has pulled so many shenanigans before he became president. Now, the whole world is watching him. Wait until he finds out he is not above the law!
33
Unfortunately he is above the law. I don't think he could ever be convicted in the house, so he can do what he will with impunity, and he knows it. This seems to be a failure of our system of government. In an era of extremely effective propaganda, it will be very difficult to run an effective electoral government.
12
There is no incentive to send a tiny fire truck to various television studios to drop off Giuliani so he can state facts on the air. The only reason he is on the payroll is to try to convince people of something they would not conclude on their own.
16
Prof. Katyal is an extremely skilled attorney and legal scholar. But as an attorney for nearly forty years, I must respectfully disagree with his conclusion.
He writes, "To say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so that it may decide whether the president should remain in office."
This is exactly the win that Trump is hoping for -- that Mr. Mueller provides the evidence of his investigation to this Republican-controlled Congress, and they decide that, despite ample evidence of impeachable offenses, they will not proceed with impeachment.
Under Prof. Katyal's scenario, I doubt Trump will pay any price at all for his criminal conduct. The electoral map does not favor Democrats this November. Despite all the talk of a "blue wave", it isn't at all clear that the Democrats will retake control of the House, and they most certainly will not take control of the Senate. Thus Trump understands that even with an impeachment vote in the House (again, not likely), he will walk away unscathed. He will have then have the wind at his back in 2020. And I suspect that his handlers are telling him exactly this.
But remember why we are where we are. Republicans are terrified of Trump's base. They will take absolutely no steps against him. Some forty percent of our "citizens" believe Mr. Mueller's investigation is a "witch hunt". And because of them, we're in for much darker days in America.
512
If a report goes to a Democratic House, the American people will see a lot of what the evidence against him is. Even if it goes to a Republican House, there are likely to be leaks. At some point he may be too much even for the GOP.
71
Jeoffrey, you have a lot more faith in the American people than I do, my friend.
5
A lot of Ifs. If GOP holds all of Congress we are finished as “The American Experiment”.
62
Well if nefarious congressional actions are the path to allow for indictment, Donald Trump is cooked.
Go to it Mr.Mueller! Surely anyone can plainly see the Congress is not acting under haloes, from the manipulative roadie Devin Nunes to the deliberately evil Mitch McConnel to the cowardly lame duck Paul Ryan.
So, given the eloquently written opinion of the author, it seems the founder's genius is buried in this finely drawn conclusion: If impeachment is unlikely due to malevolent complicity of Congress with the aims of the President, then Mueller has every right--indeed duty--to indict the president if the evidence warrants it.
314
It does seem like this GOP led Congress will not impeach Trump. Paul and Mitch shamefully are doing nothing whatsoever to reign in the current administration so it’s highly unlikely that Congress will impeach Trump. If that leads to Trump being indicted then so be it.
30
Unfortunately, Mr. Mueller (and any successor) can be fired at any time by the Department of Justice which Trump commands. And it's unlikely that Congress will engage the alternative process of impeachment to bring him to heel. And the Supreme Court, America's court of last resort, has been compromised by McConnel's earlier treason.
I fear it's America, not Trump, that is cooked. I hope otherwise.
41
The Mueller investigation is paid for by the taxpayers; therefore, the results of that investigation are public property. I want to see the report...all of it...every last word, and that includes the tax returns.
33
"If congressional leadership, for example, was in criminal cahoots with the president, ... impeachment is off the table because of nefarious congressional activity, then indictment must be on it.
That is the genius of our system,...."
Thank you Mr. Katyal, very informative. It reminds me of all the shenanigans Mr. Nunes and the Republicans on the investigative committee were pushing around to shutdown any honest inquiry about the President. Seems that fits right into your narrative about nefarious congressional activity.
186
Trump signed the Tax Bill which gave large corporate interests a huge, permanent gift. Ordinary tax payers got chump change which will sunset in 2027. Trump is okay with gutting the EPA, allowing Exxon and others to drill in the Arctic, and off shore along sensitive marine sensitive habitats. He is okay with mining sludge piling up on mountain tops in West Va and Kentucky. We now have a real plutocracy in charge of all three branches of government: Congress, the Judiciary, and voting rights in most States. It will take decades to undo the damage being done now, given the corruption of the electoral process.
22
Since this situation is completely unprecedented, for Trump may not even rightfully, fairly, and legally be our president, we should NOT adhere to anything that is even tangentially related to being a precedent, i.e. the cases of Nixon and Clinton.
If the evidence is there and if there's even a possibility that any of Trump's actions while in office are for reasons other than the best interests of this country, I say indict him.
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