Michael Avenatti: The Case for Indicting the President

Justice Department lawyers have said a sitting president cannot be indicted. It’s time to test that proposition by bringing an indictment that can be reviewed by the Supreme Court.

Comments: 220

  1. This controversy will be moot, until after Trump leaves office in 12 or 16 yrs--when he wants to appoint the next inline. His grab for presidential power is undifferentiated from his 3,000 lawsuits while a citizen. Never held office, and now he is holding, never to let go.

  2. @4Average Joe

    It’s worth a try.

  3. @4Average Joe I don't think Trump is all that powerful. He barely got elected, he is not particularly admired or trusted by members of Congress, nor for that matter by his own cabinet. And most of all, he isn't smart enough to manipulate them. I believe it is the other way around: to me the GOP appears to be riding him as a useful idiot so they can pass their own agendas, while letting him be the lightening rod. Hard-core Trump supporters are a clear minority, and his support among other conservatives is not very deep. With legal troubles mounting, I believe many in the GOP are eyeing the door when it comes time to bail. When and if things do go south, I believe people will quickly turn on Trump. Indeed, I think that was implied in the NYTimes "Resistance" OpEd written by an insider(s). First ones out the door would fare best, especially if you were the one who warned the nation ahead of time. To me, this was a message that some in the WH are preparing for just that eventuality.

  4. @4Average Joe Maybe the Big Macs and Diet Cokes will get him before Mueller, Congress or the voters do.

  5. Kavanaugh may not be the problem. While we've all been distracted by the daily outrage and scandals tied to Trump (including yours) his administration has been quietly and rapidly packing the courts across the country. It probably wouldn't even get to the Supreme Court.

    We must all be vigilant and vote vote vote, especially at the local level.

  6. @myasara

    Well, no. Completely no. This would begin and end in SCOTUS. Kavanaugh very much is the problem. The other 4 votes needed - the usual suspects - we must imagine are locked and loaded through whatever "persuasion" was necessary. Certainly Gorsuch understands his marching orders.

  7. @myasara My thoughts exactly. In which court would trump first be tried? Then, to which appeals court would trump wage his appeal? Are these courts run by trump appointed judges?

  8. EVERYONE should be indictable and prosecutable if for no other reason than to let know that wrongdoing is wrongdoing no matter your position in our country. All need to be equal before the law especially those who serve the people. No free passes.

  9. @Andre

    Should be. But might not be. This is a very distinct possibility and the position of the "president" and his lawyers. This is also the position that Kavanaugh supports: the president, even an illegitimate one, IS above the law.

    Trump is clinging to that mightily, because otherwise he ends up in jail. And the way he stays out of jail for the duration is if he stays "president" for... as long as... he ....

  10. The idea that any citizen of our nation is immune to indictment is an affront to democracy. Our constitution, the very fabric of what binds us as Americans, is based on the proposition that we are a nation of laws, and that no man is above the law. If and when this question reaches the court, which is looking exceedingly likely, I expect that the Supreme Court will affirm as much in their ruling.

  11. @Logic

    "I expect that the Supreme Court will affirm (that no citizen is immune to indictment) in their ruling"

    No, they may rule that the indictment should be delayed until after the president is no longer in office.

  12. @Logic
    Dream on. With Kavanaugh on the Court, nothing if the sort will happen. The right wing hacks there have shown repeatedly that they put party over country. Bush v. Gore. It’s depresding but probably realistic. Sad!

  13. @Logic

    "The idea that any citizen of our nation is immune to indictment is an affront to democracy .."

    Yes. Time for a special prosecutor for Ms. Lynch and WJC @ the airport, HRC (Comey did not have the legal authority to immunize her), Lois Lerner, Sally Yates, Comey and his FBI appointees, and an investigation about the relationship between BHO and his fund-raisers, Billy Ayers and Bernadine Dohrn.

    Thanks, Log.

  14. There is a very high bar for dismissal of a President. He is the only person who is elected in a nationwide election where every citizen has a say. Thus it is rightly held belief that he should be removed by impeachment. If a President can be indicted the losing parties state attorney general can easily bind the President in court cases. There is no reason such indictments can't wait out the term of the President. Frivolous cases like these can wait.

  15. @Ben "He is the only person who is elected in a nationwide election where every citizen has a say." Except for the fact that more than 3 million citizens voted (for Clinton) and did not have a say. Donald Trump LOST the popular vote, the majority of the population did not want him as their president.

    Furthermore, this is not a "frivolous case." If you have been following the news (other than Fox) you must know that Mueller has already issued an impressive number of indictments and obtained many guilty pleas. The case is hardly frivolous.

  16. @Ben

    We have absolutely no say in presidential elections. If we did Clinton would be President.

  17. @Ben writes, "where every citizen has a say", but due to the electoral college, some citizens have more of a say than others. (With a nod to the pigs.)

  18. As a remedy for actions taken while president a president should not be indicted. The remedy for these should be impeachment by the House. Examples of this would include: obstruction of justice, continual violations of the emoluments clause, and corruption to name a few.

    Also, there are actions for which indictment should be allowed. These would include the violation of state laws such as shooting someone on 5th Ave, state tax fraud, and money laundering. Federal crimes which might have been violated outside the term of office or official duties such as campaign finance violations and tax fraud should also be indictable.

    I have never read any opinions on if a state can indict a sitting president. I would assume so. There would have to be some agreement as to when legal proceedings can commence.

  19. @JMM

    All well and good - IF the House is doing its damn job! As well as the Senate. Which as we can witness live every day they have abdicated.

    Impeachment ain't good enough for a president committing criminal acts. If proven, you lose the job!

  20. @JMM - The Constitution says a President can be impeached. It does not say he is immune from other forms of justice.

  21. "Some also argue that indicting the president would critically impair his ability to lead the country." This argument is hogwash and ignores that fact that a person who commits crimes shouldn't be president of the United States.

    The only reason this was never addressed before was because the founding fathers never imagined a populous so ignorant to its own welfare that it would vote a known huckster and self-admitted criminal (assaulting women) into the highest office.

  22. @Aleutian Low
    They did, in fact, think this might happen and they gave us tools to prevent it. Right now those tools are in Congress and the Senate, and they're doing nothing but being different kinds of tools.

    He did, in fact, admit to assault as a lifestyle. That should've been enough, but no, not for the greedy. The greedy saw opportunities to get even wealthier. If Paul Ryan is really Catholic, he's got a lot to discuss every week in Confession. There are tons of tools all over DC and beyond who ought to be hammered over their greed and treason-like fraternization with the enemy. Let's see if justice has a big enough gavel for all of these criminals.

  23. @Aleutian Low, "Some also argue that indicting the president would critically impair his ability to lead the country." Well, when his own lawyer tells the Mueller that the president is "disabled", I guess that means that he's already impaired and not able to lead the country. An indictment would not make much of a difference in this case...

  24. @Aleutian Low I disagree. The founders certainly did contemplate a scoundrel achieving high office. What they clearly did not adequately anticipate was how another branch of government would be so complicit in the scoundrel's law-breaking.

  25. In a sane time the public would elect someone who is the standard-bearer of the law. Not a pathetic weasel who hides behind lawyers.

    Impeachment - the most beautiful word I know.

  26. @Plennie Wingo: Indictment: A much more beautiful word than impeachment.

  27. President Trump likes to brag that if he stood in the middle of Fifth Avenue and shot someone he would not lose any voters.

    But the question really should be if he stood on Fifth Avenue and shot someone, could he be indicted, support or no support from his voters?

    What if he worked behind the scenes with a foreign government to affect the outcome of an American election, which sounds dangerously close to colluding with a foreign government to overthrow an elected government. Support or no support, could he be indicted for that?

    I am one of a decreasing number of Americans who does not believe the President should be impeached until we have evidence that he has committed high crimes or misdemeanors. That’s the way the law is supposed to work.

    That said, no American is above the law. The courts said Clinton was not. Nixon was not. How can Trump and his advocates argue that he is different? Just like the rest of us, he needs to be questioned under oath about any laws he may or may not have broken so the American people can know the truth.

    I agree with Avenatti: Let the courts decide since Congress is unwilling or unable to do its job.

  28. @avrds

    The courts did not say that Clinton was innocent!

    The FBI practiced selective law enforcement and did not present evidence of Hillary Clinton's guile to the Court!

    On July 05, 2016 TV President Obama’s FBI director James Comey stated in his news conference on national TV that he has found documented evidence that Secretary of State Hillary Clinton did commit 90+ criminal E_MAIL violations of federal security law and escaped her purge of her electronic devices.

    This discovery was after Hillary had her staff destroy all of their hard drives, cell phones, laptops and other e-mail devices that contained copies of Hillary’s e-mails with hammers to prevent discovery of US security law violations by the legal system, and FBI director James Comey still found 90+ criminal E_MAIL documenting 90 separate violations of US federal security law committed by Hillary Clinton that Hillary did not find and destroy.

    That was the time and place for President Obama’s FBI Director Comey to arrest Hillary Clinton.

    Why did Comey let Hillary walk free?

  29. @avrds, "high crimes or misdemeanors" does not mean violating the law. It means failing to perform the duties of the President, including upholding the Constitution and the laws. It means political malfeasance, such as collusion with a foreign power. Violating a law might be included (at the discretion of Congress) but it can also be handled by an ordinary criminal indictment, which is a separate process.

  30. I agree with Michael Avenatti. I want to know whether or not it's true that no one is above the law in the United States.

  31. If the man consistently finds the time to play more golf than Rory Mcllroy he can find time to address the plaintiffs. This is about the man addressing his actions prior to his time in office.

    The matter of his actions once installed in the office is a different legal, constitutional matter.

    Bring on the popcorn!

  32. @November5th

    The time for popcorn is past. It's time to get ready to protest in very large numbers.

  33. Avenatti 2020

  34. Why should we care what this guy thinks. He has ridden a single case to national coverage and now thinks he should run for president. A small time atty. with a super size ego just what the dem. party needs to win. what a joke

  35. @gerry
    Trump stepped up to the plate without any political experience, the intellect of fifth grader, multiple bankruptcies, no class, no courage (Cadet Bonespurs) and a very large pocket full of -anyone can be President- the bar is very low.

  36. @gerry - Ad hominem attacks are usually wrong. The question us whether he is right or wrong.

  37. The founders were trying to create a system that was the opposite of the tyranny of British kings. They cannot possibly have thought that the Constitution made the President immune to indictment - in effect, a king who was above the law. The Originalists on the Supreme Court should bear this in mind if, and when, the question reaches their desks.

  38. Now, perhaps, in the interest of journalistic impartiality, the Times will publish a column which presents the opposite view.

    Just as Michael Avenatti is seen by the right as a Trump hater whose views on this subject should not be taken seriously, so too is Alan Dershowitz seen by the left as a Trump defender, whose views also should not be taken seriously.

    The symmetry here would seem to be perfect. So why not let Dershowitz have his say?

  39. @HurryHarry: If Dersh could stick to legal reasoning without wandering off into his interpretation of the law, I'd agree.

  40. It's highly likely this will go to SCOTUS. And Kavanaugh will declare him king. For once he does the job he is being rushed through the senate to do, Individual-1 will then be operating completely out in the open above the law violating the constitution in terms of emoluments and able to obstruct, with approval from SCOTUS, justice. The next step is he gets to start imposing "justice" on others, which he is very clearly tweeting about all the time. Very clearly against this very news outlet.

    Hopefully that will be enough for folks sitting back with a big bucket of popcorn watching the demise of our federal republic to get off their butts.

  41. Wow - Mr. Avenatti makes an excellent point- the Justice Dep't. memoranda are just lawyers' opinions. They opine about all sorts of things. They are not laws (made by Congress) nor are they binding judicial decisions about the constitutionality of laws. And they are never the final word even in the Justice Dep't. - every next Justice Dep't. Office of Legal Counsel may have a different opinion than the previous OLC about the same question. Mr. Mueller - let the indictment roll and like Mr. Avenatti says, have drump argue the constitution doesn't allow it.

  42. Trump has been a con man all of his adult life. Like the Teflon Don he has not yet been held accountable. Maybe it is time.

  43. The question you have to ask is would the justice department, let alone the president, and especially this president in particular, hesitate to indict you, the reader, whoever you are, for whatever reason?

    If the answer is yes, then the president can and should be indicted.

    If a president doesn't want to be indicted, or can't afford to be indicted because he has too many important things to attend to, well then he shouldn't break the law. You and I are also quite busy and can't afford to be indicted.

    Don't exaggerate how important the president, and in particular this president. He isn't the leader of the free world anymore. That's been destroyed. No one will miss him, and the rest of the world is already moving on. It won't cause havoc to indict this president, and in fact any president.

    We, the United States, aren't that important or essential anymore. Trump himself helped set that ship sailing.

  44. @Timbuk

    Ah, yeah, but we still have a massively-oversized military and we still got a lots and lots of nuclear weapons and we have the biggest economy. So that throws a little wrench in your theories.

  45. @Timbuk, "If a president doesn't want to be indicted, or can't afford to be indicted because he has too many important things to attend to, well then he shouldn't break the law. You and I are also quite busy and can't afford to be indicted. "

    I agree and thank you for saying it so succinctly.

    There's another way to put it. If you can't do the time, don't do the crime.

  46. An indictment of the president would likely give rise to ccountless legal issues that woud be tied up in the courts for yrars. It would paralyze the government for better or worse. Most of the evidence would be confidential until trial, hidden from the public. Thorny national security issues are likely to be involved. And the fact of indictment, guilty or not guilty, would interfere with countless elections. And if Trump would be convicted he would still be President, perhaps workin from prison. Impeachment is the only reasonable way to go.

  47. @michjas - Th reason you are wrong is that impeachment is a political process carried out by politicians. What we are talking about here is a judicial proceeding involving a felony.

  48. I wonder if the same legal scholars who insist that a president should be immune from prosecution or investigation would accept the idea that a chancellor of a school system should not be investigated even if there are credible charges of child sexual abuse because such an inquiry would impair the Chancellor's ability to cope with a very challenging job. The head in a working democracy may be the first among many, but he is not the one separate from the many. This question tests what we consider America to be. Michael Avenatti wishes us to be a working democracy. As do I.

  49. @Lawrence Zajac

    And if, as seems likely, Trump is an agent of Russia, the level of criminality goes beyond the ordinary, and the entire situation, appearing to be a kind of coup, requires more than just indicting the president.

  50. Though the article is a wonderful discussion, I would think the central question is whether a sitting President “can be indicted”, not whether he or she “can be indicted while in office”. The latter is a redundant statement because a “sitting” President is by definition “in office”.

    Additionally it seems silly, even to the strictest originalist, to think that the framers of the Constitution would allow for the possibility of a criminal continuing to run the country for several years because he or she could not be indicted as President.

  51. Pretty good.

    But is not going to happen.

    Save it for after he leaves office.

  52. @Financier Guru

    When Trumpski leaves it will be in a plane to Russia. Pence will fly him out of here just like Bush Jr. did for the Saudi royals after 9/11.

  53. Please do not rush this. Just keep pounding. He may not be legally liable, but ethically and morally and emotionally he most certainly is. Every day just help us keep focused on his inadequacy as a president as well as a person. People with fascist bigot tendencies should be give no rest.

  54. I agree wholeheartedly that, if the charges are serious enough and the evidence compelling enough, a President should be subject to indictment. After all, when Trump said he could shoot a person on Fifth Ave, I didn't assume that our Justice Department and our Criminal Courts were in agreement. If conspiring with a foreign enemy to help you get elected president doesn't rise to high crimes and misdemeanors and if the legislative branch refuses to take action for politic survival, then our only recourse is the courts. There is a reason the lady with the scales is blindfolded. It doesn't mean our legislators and judges should be allowed to follow suit for partisan gain. And that should apply no matter which political party the law breaker belongs to.

  55. An old legal maxim, 'hard cases make bad law,' suggests that wouldn't be a good idea. Trump isn't an ordinary president, and the facts involved in any Trump indictment would be extremely unusual. That's the wrong way to establish guidelines that would apply to future presidents.

  56. Thanks Michael! When the full range of money laundering, coordination with the Russians, and obstruction are fully detailed in an indictment, the public will be swayed to support that moving forward. The only defense is a capable Congressional investigation and impeachment trial . . . American's do ultimately want accountability.

    On a separate topic, how about supporting a National Mediation Act to have a policy preference for facilitated resolution rather than conflicts remaining unresolved or being litigated. Right thing to do and perfect balance to your wonderful pit bull capacities.

    See www.mediate.com

  57. I say do it, indict his if there's the evidence to do so, why not? It will then be decided and if the man cannot be held accountable while in office, he'll be held accountable afterwards...
    either way, I do believe justice will be served. Unfortunately, not before he had defrauded this nation for all he can get his hands on, and debased us beyond recognition.

  58. The idea that this or any other President can't be indicted seems counter to everything we've been taught and disheartening. Yes, frivolous indictments should be avoided at all costs. But when you have a President allegedly engaging in criminal activity and enriching himself in the process, he, like any other American Citizen should not be above the law.

    If he is innocent, so be it. But I am doubtful. We cannot have a potential criminal in the White House.

  59. @Zywacz: POTENTIAL criminal?????

  60. @Zywacz. He has fulfilled his potential.

  61. Avenatti for President!

  62. No more Celebrity Apprentice presidents! I don't care how smart he is. His candidacy is all vanity.

  63. Starr's comments probably only apply to Democratic party Presidents.

  64. Avenatti is a brilliant self promoter and relentless pit bull. (I mean this in the nicest way) who had clearly gotten under Trump's thin skin. To me, it's just a Trump circus and this is in one of the rings.
    Trump maintains his 80+% approval rating among republicans and it's going to take more than Avenatti to displace Trump.

  65. @Brad

    Yes it will take the American people to vote in November and start the process of getting rid of this racist, corrupt old, mean demented individual. We are not giving up our rights allowing children to be locked up in cages, arresting brown people, taking away medical care.

    Avenatti is a fighter and he cares about the American people and believe it or not can actually inspire people to think. Trump, his swamp administration and his corrupt family will be an after thought after November 6. The lazy GOP will be going home for good.

  66. @Brad
    The majority of Republicans who persist in being impervious to evidence and reason are still a minority of the U.S. populace. It may take more than Avenatti to displace Trump, but that only means we have to redouble our efforts and tenacity. We are battling for the rule of law, and for the very soul of the country.

  67. @Brad The 80% is of an ever-shrinking cesspool, where many have gotten out for fear of the stink that will remain with them should they stay in and swim with the Creature.

    As we see with their other short-term fixes, like tax cuts for the wealthy that aggravate long-term problems such as our National Debt, most Republicans have taken a very myopic view. They risk destroying their party when the smoke clears.

  68. If a president cannot be indicted while in office, then the statute of limitations should not apply in Mr. Trump's case. Once he leaves office, criminal charges should be brought against him if he's found guilty of any of the many crimes he's being investigated for, no matter how long ago those crimes were committed.

  69. Why wouldn't the NYT have someone with more knowledge or authority write this. This guy is a hired pit-bull...who I'm happy to see is suing the Pres. That does not make him an authority on constitutional law.

  70. @gmor Perhaps the discussion of constitutional law, in the face of such apparent disregard for the law in Trump's case, does not necessarily need to be addressed by the best authority on the subject.
    Given the volume of evidence already available, the subject could probably be discussed rationally by anyone with some common sense and some background in law, which Mr. Avenatti surely possesses.

  71. I have said this since the wretched day he got elected and I still believe that I could happen.
    The man is a full-throated coward.
    As soon as he realizes that he is cooked re: money laundering, bank and wire fraud, conspiracy to obstruct, et. al. he will take advice from Mattis or Kelly and grab all his marbles and go home to his gilded bordellos.

    There the moron will think he is safe, daily calling into Fox and Friends and Hannity, railing on how he was dissed and furiously posting twits.
    Then he will face criminal indictments just like any of us would.

    If he committed crimes, indict him, subpoena him and get this lowlife loser and corrupt, congenital liar out of here.

  72. @Futbolistaviva-I hope you are right but I worry that Trump's consistent record of lying is a strategy to claim that he can't distinguish between lying and the truth--so how can he be convicted?

  73. @Futbolistaviva
    I don't know. I thought so, too, but won't he just double down? Won't there be some unseemly situation where he'll need to be dragged out kicking and screaming?
    Will we need the military like they do elsewhere?

    He should be arrested and tried for destroying the office.

  74. @Futbolistaviva You are correct that he is a full-blown coward. Bullies usually are. However, you fail to consider that he may be AFRAID TO RESIGN. He may see the power of incumbency as his best protection against criminal responsibility.

  75. I totally agree. It's time this theory be rigorously tested. Sans Kavanaugh.

  76. The constitution provides for indictments of individuals - where does it say the president can NOT be indicted? Sure, there's the political process that is impeachment, but nowhere does it distinguish the president from anyone else when it comes to indictment.

  77. @Mike

    Yes. I don't know why people are even wondering whether the president can be excepted from the law.

  78. Thank you Mr. Avenatti, for passionately pursuing justice against this President, and keeping us informed.

    Your efforts are shedding light on the dark corners of Mr. Trump's campaign and presidency. We all stand to gain from more transparency into what is really going on here.

    It seems utterly unfair that a person can use illegal means of acquiring a position, and then that position enables him to be untouchable for those crimes.

  79. "Judge Kavanaugh’s recusal should be mandatory" Absolutely, but to whom do we appeal if he refuses to do so? Not the president, obviously. Does Congress have the power to enforce such a recusal, even if they were willing to do so? Or can the other eight Supreme Court justices rule on the recusal of the ninth? As so often happens, I only end up with more questions every time I think of these things.

    I understand Judge Wachtler's "ham sandwich" comment--in my 18 months as a federal grand juror we rejected only one indictment, though we weren't exactly the busiest grand jury in the land. It's just not hard to establish probable cause, which is the standard grand juries adhere to, leaving the higher standards to the petit jury (at least for those vanishingly few cases that ever go to trial, but that's a different subject). And in the case of this president, he is pretty much a walking, talking, twittering probable cause, just on the face of it. If we truly hold that no one is above the law in American, it seems to me that the case must be allowed to proceed, or we're just fooling ourselves about the durability of American democracy.

  80. @gary89436 we appeal to torches and pitchforks. We get off our knees and emulate the French.

  81. @gary89436 it's called "Constitutional Crisis." They are easier to recognize from the outside, but we're watching this one from the inside.

  82. @gary89436 It is left up to the Supreme Court justice to decide whether or not to recuse. The only remedy Congress has is impeachment, which has a very high, almost insurmountable bar.

  83. Thank you for turning over column space to this constitutional expert.

  84. By Mr. Avenatti's logic, shouldn't any Justice appointed by Trump recuse, including Gorsuch?

  85. @Kenneth Bachmann Yes, Gursuch too. His seat was stolen from Merrick Garland, and he is every bit as compromised as Kavanaugh.

  86. @Kenneth Bachmann
    Gorsuch was one of the choices presented by Trump prior to concerns about the possibility of illegal actions being made public. Kavanaugh was not on that list. He became Trump's pick only after the special counsel's investigation started hitting pay dirt. Recusal is necessary when there is the appearance of a conflict of interest. The appearance of conflict of interest is obvious in Trump picking Kavanaugh. Gorsuch, not so much.

  87. To JMM who states, "As a remedy for actions taken while president a president should not be indicted." What about a president who is president in name only and not duly elected? Is this not an important distinction b/w Clinton and Trump in Mr. Avenatti's piece?

  88. Well, thank God!

  89. Mr. Avenatti may be correct that, if confirmed, Brett Kavanaugh SHOULD recuse himself. But Mr. Avenatti is playing with fire when he assumes that Kavanaugh WILL do so. Just as Antonin Scalia SHOULD have recused himself in Bush v. Gore (since his son was on the Bush legal team), the reality is that nothing can force Kavanaugh to do so - not the other Justices, and certainly not the "will" of the American people. Thus, "testing" this indictment idea on the next SCOTUS may well backfire.

  90. @Maani Rantel And should testing this indictment backfire, what will that say about the current state of the American experiment?

  91. If campaign finance laws were broken before election day, as they were based on testimony by Trump's former lawyer, then this is before Trump was President and the indictment should be allowed.
    On the topic of Brett Kavanaugh, he certainly should recuse himself since he was clearly picked by Trump as a defense against this issue. There is adequate precedent based on Bill Clinton. Despite having a media strategy, Avenatti is clear on his reasoning here and it is compelling. This reasoning is what we should consider.

  92. @Will Hogan-Perhaps Mr. Avenatti will cast his investigative skills and laser light focus on Mr. Kavanaugh, who has already accepted money to cover his baseball debts. Who paid?

  93. There's no way to force recusal of a Supreme Court justice. Mr Avenatti should have done better by referencing the NY state judge presiding over the Summer Zervos defamation case.

    In the first sentence in the justification in her ruling to depose Trump, the judge wrote "No one is above the law". She followed up with two pages of ways to accommodate a sitting president's duties.

  94. @Joel Ii
    A Supreme Court Justice can be impeached by Congress. In fact, there is talk to the effect that Kavanaugh should be impeached for lying to Congress when he was appointed to the federal bench as DC Circuit appellate judge, relating to his employment in the baby Bush administration.

  95. @R. R.

    So what - argue the point, not who made it!

  96. I though the War of Independence was to remove the United States from being under the rule and jurisdiction of a King?

    If "all men are created equal" then the law MUST apply to all--- regardless of social status or standing.
    The alternative is dictatorship.

  97. Mr. Avenatti is an imperfect messenger, but that shouldn't obscure the importance of this message.

    The people who are currently in power today are reluctant to go down this path, for reasons having more to do with self-interest than national interest. But, if you were to ask the average American whether any President of either party should be considered to be above the law, the answer would be an unequivocable "no." A President should not be able to shoot someone in broad daylight on Fifth Avenue and get away with it. It should not be subject to the whims of politics, or a secondary consideration after the all-important need to confirm a Supreme Court justice whose mission will be to cement power in one party alone. No American citizen would give a different answer. The law should apply to everybody.

    This is a point of national pride. It's what makes us better than Russia. It's what "American exceptionalism" really means to us. We hold our public figures to a higher standard because it makes us stronger as a country.

  98. @Kathleen L.

    Yes, yes, YES.

  99. @Kathleen L. In your opinion, how is Mr. Avenatti an imperfect messenger? Just wondering.

  100. @Kathleen L. - no, we don't hold our public figures to a higher standard any longer. If we had, the country would not be dealing with the current nightmare in the WH.

  101. It may be the case that indicting a sitting president for relatively inconsequential violations would engulf the office in distractions that are detrimental to the common good, but shouldn't the scope and nature of the charges be considered?

    If Trump finally gets around to shooting a man on Fifth Avenue, would there still be hesitation to indict? What about treason?

  102. Forget all this legal gibberish, Trump should be impeached for the criminal acts he has committed in office. His heartless treatment of hundreds of children, his rotten oversight and lies concerning 3000 deaths in Puerto Rico and his continual lying to congress and the American people. Add to this his self enrichment by his continual ownership and involvement in the Trump Organization and there is more than enough impeach this brazen imposter.

  103. @Karn Griffen: I think he should be indicted for ALL of this, not impeached. What he did to these immigrants and their children constitutes crimes against humanity, and this calls for an indictment. Nothing else would be acceptable. Some of these kids will never see their parents again! WHO, IN THEIR RIGHT MIND, DOES SOMETHING LIKE THIS????? Lying to the American people CONSTANTLY should be considered criminal. Self-enrichment violating the emoluments clause of our Constitution IS A CRIME. Anyone who has aided and abetted him in these crimes should also be indicted, particularly miller, sessions, and nielsen.

  104. well said. all of it. I would even argue that, if anything, the vigor with which prosecutors pursue indictments should be biased proportionately to the "stature and station" of the accused. in other words, to remain a nation of laws, we need to hold those in power should actually a stricter standard; giving them blanket immunity is insane.

    political parties, in turn, need to do a better job of vetting their candidates. many in the republican party predicted this sort of end for trump but seemed powerless to stop the populist wave that stamped out any resembling integrity to their nomination process. bringing an actual indictment might spur parties to, for example, insist on more transparency from candidates' campaigns and past business dealings. (mandatory tax return release!) all to the good.

  105. @Joseph well said. I keep hoping that a patriot at the iRS will leak Donald’s tax returns!

  106. Love the headline photo!

  107. I can see why there is the sentiment not to indict a president. if you follow the counter-argument to its logical conclusion, I could see the out of power party coming up with indictments for unpaid parking tickets from 1956.

    On the other hand.....Trump. If there was ever a walking, (barely) talking poster for allowing the indictment of a president, he is it.

    Because the overarching concept of our democracy is the rule of law, with no individual above it, the president should be able to be indicted, with a higher bar than for the average citizen as far as level of crime and evidence presented.

    Now please, Mr. Avenatti, get him out of there, and quickly, before it's too late for all of us.

  108. I want Trump out of there as bad as the next person, but the idea of Pence taking over is an even more miserable thought.

    I could live two more years with a lame duck Trump and Democratically controlled Senate and House. He’d in essence be on a pretty short lease, but a Pence presidency would almost be a major Republican coup. That can’t happen.

  109. @Ted Siebert

    So we don't pursue legitimate criminal charges because you don't like the alternative? Sorry, but presidents who break the law pay the price regardless of who is next in line.

  110. @Ted Siebert
    I agree. I don't want Pence. I also want Trump and the GOP to bleed out slowly over the next two years. If Trump is gone in a year, the electorate may forget (and God knows the Dems struggle with messaging) the absolute nightmare the GOP brought us. If this train wreck smolders for the next two years, I'm hoping the stench is on the GOP for years.
    I want the GOP neutralized more than I want Trump gone. They own this debacle lock stock and barrel.

  111. @Ted Siebert - what is it you fear about a Pence presidency - the end of abortion rights? of LGBT rights? Regulations (or lack of them) instituted purely for the benefit of business, without regard for ordinary people? The end of unions and any protection for the worker? If Kavanaugh is confirmed, Trump will have delivered all that, and more, and will continue to deliver it for decades - to a far greater extent than a President Pence ever could.

  112. N'ah, it's time to vote the bums out. Bringing the question of whether a president can be indicted before this Supreme Court is a political suicide mission. Maybe it gets Michael Avenatti publicity ahead of 2020 - nothing wrong with that - it might also give Donald Trump more ideas about autocracy if the justices were to rule that sitting presidents cannot be indicted.

  113. History repeats itself.

    Avenatti is another narcissist pushing himself in front of every camera available in order to promote one thing: Michael Avenatti. After aiding and abetting Trump in promoting himself, the media is aiding and abetting Avenatti in promoting himself.

    It was no surprise when Avenatti started taking steps that made him look like he was pursuing a run for office, nor when he came out and said he was seriously considering that. Oh, perchance, it just happens to be a run for president (potentially against Trump).

    At this point, the media needs to view Avenatti as a presidential candidate and stop giving him free advertising, rather than repeating themselves and doing what they did with and for Trump.

    His essay here is a pedestrian analysis and commentary on the issue of indicting a sitting president. It’s all been said before, and recently, and better by others. This Op-ed from Avenatti is not needed from him.

    Unless Avenatti's speaking about his client's case, all other commentary from him needs to be viewed as part of an advertising campaign for president. Please stop giving him platforms to campaign for office.

    As a progressive, I oppose Trump, his views, and his administration whole-heartedly, but it is sad to see liberal media sources like MSNBC and the Times giving Avenatti his own media reality show.

    The enemy of your enemy is exploiting you to promote himself and his career, political or other.

  114. @AnotherCitizen
    Not in defense of Avenatti but being in any role in government these days is a "reality" show. Not sure how a private citizen using the media to promote him/herself is any different than a senator, congressman, governor, etc, where self- promotion is a requirement for holding office.

  115. @AnotherCitizen
    Could not agree more. It’s astonishing to see people lionize him and giving him a platform like this OpEd.

  116. Any time Kenneth Starr's name is mentioned there should be a footnote that he was forced to resign as the President of Baylor for failing to protect students from sexual predators no less.
    (CNN) — Ken Starr resigned as Baylor University's chancellor on Wednesday, less than a week after being removed as its president in the wake of sex assault controversy involving the school's football team.

    Baylor, a Christian (Baptist) university, removed Starr as its president last Thursday after unveiling the results of an independent investigation that showed a "fundamental failure" to respond adequately to student sex assault allegations, including some involving players for the Texas school's rising football program. "The chickens came home to roost"

  117. Avenatti seems in quite the overwrought, self-serving tizzy about Trump's ostensible "guilt" vis-à-vis his client when both Bush and Cheney--and the Congress that supported them--should be facing the International Criminal Court for war crimes against humanity.

    When that happens, we'll know Mueller (and fellows Avenatti, Woodward, and "Anonymous") isn't on a protect-the-deep-swamp-DNC-RNC Politburos snipe hunt, for he should be investigating the CIA and its cohorts Bush and Cheney for war crimes, no question.

    Where's that ham-sandwich indicting Grand Jury when you really need them, munching lunch with Strzok's FBI?

  118. @Alice's Restaurant: We're not discussing indictments for war crimes in international courts here, but indictments for crimes that are punishable under American law. Nice try to change the subject, and Strzok was targeted by Trump because he specializes in money laundering. The fact that Strzok knew Steele, a well informed and credible Brit on Russian shady financial dealings (gee, how would Steele have dirt about Trump?) worked like a red rag on Trump, who still has not shown us his tax returns. The fact that Strzok's wife worked for the same company as Steele is not a conflict of interest at all. If anything, their interests aligned in finding the facts. Tell me more about Justice Kennedy's sudden resignation when it came out his son was involved with Deutsche Bank's real estate businesses including Trump's and Russians'. That would be a conflict of interest, if his son were to be subpoenaed in a case that could well come before the SC.

  119. @Alice's Restaurant you fail to recall that when Bush/Cheney decided to torture they did not ask Congress for permission! And yes, Bush/Cheney should have been tried in The Hague!

  120. Kavanaugh's refusal to commit to recusal should be disqualifying. Period.

  121. @Maryse

    Excellent Point!

  122. @Maryse Elena Kagan hasn’t recused herself from issues she handled as solicitor general. Also, Obama appointed her - so she and Sotomayor should have recused themselves on issues related to the Obama administration or where the Obama team filed amicus briefs?

  123. @Maryse: That's what I told my senators.

  124. Isn't impeachment essentially equivalent to indictment? Both are followed by a trial - 100 jurors in one case, fewer in the other.

  125. @Paladin No. If he is convicted in the Senate after impeachment by the House, he loses his office. If he is convicted by a court after indictment by a grand jury, he goes to jail.

  126. "Isn't impeachment essentially equivalent to indictment?"

    No. Grand jury proceedings are SECRET, and there is no judge during the impeachment proceedings in the House.

    "Both are followed by a trial - 100 jurors in one case, fewer in the other."

    Again, you are making a false analogy. Jurors are chosen from the community and interviewed by the parties during voir dire.

    In particular, jurors can be dismissed for *bias* during voir dire. If voir dire were used in the Senate during a trial of the President, EVERY Senator would have to be dismissed.

  127. Kavanaugh should recuse himself? Of course he should .. its what an honorable man who truly respects the legal process would do. But, this is not Mr. Kavanaugh. That's why Trump nominated him .. plain and simple.

  128. @JH

    I've met Kavanaugh in person. I would say he does have a clear sense of honor, but that point is meaningless. He is a stooge for the Federalist Society and his "honor" leans him towards what the majority of Americans would consider fringe interpretations of the law.

    People need to come to grips with what SCOTUS is, it is a political apparatus no different than the Executive and Legislative branches. Constitutional Law classes in Law School are mainly a semester long running joke of how the SCOTUS majority manages to take whatever analytical steps are necessary to reach the conclusion held from the start.

    Kavanaugh is exactly who you think he is, that doesn't mean he is a bad jurist, but he will rule exactly as you should expect.

  129. Those on the side that an indictment of a sitting president would impair his/her ability to perform his/her weighty duties seem to be forgetting one thing. That's why we have vice presidents (not that I approve of the current one). They can constitutionally fulfill the presidential duties during the period the president is preoccupied with his/her defense.

  130. The Founders must have had a naive assessment of human nature to assume that a country—any country—would/could never throw up a man without any pretense to decency, a man who would never work to undermine the nation’s principles and its principles for governing.

    We are now stuck with the possibility that the sitting president may escape indictment for crimes that an independent prosecutor may find reason to bring.

    The Founders, fleeing from what they perceived as an oppressive monarchy—and determined that the same should not be duplicated here—nonetheless wrote protections for the executive to prevent his (or) removal from office for frivolous or mean-spirited partisanship. They could not conceive of an idea where a future president would seek assiduously to trample upon the very papers that they thought would establish checks and balances from an attack from one or the other legs of the tri-partite system they had established.

    Looking down upon us, they must be in hurried and panicked (and useless) discussions centering upon this:

    “Where did we go wrong? How did we not anticipate that a complete scoundrel might attain to this high office? We gave ‘the people’ a modicum of credit for intelligence and civic attentiveness but how, with the advances in everything imaginable, did we miss the possibility that this young country of ours would be taken over by those cherishing an ignorance beyond imagining?”

    The photograph accompanying this piece—could it actually happen here?

  131. Well written and well argued, and much appreciated. All that said, I would never vote for Mr. Avenatti for president as I've had my fill of TV lawyers with even the most remote ties to Trump.

  132. Mr. Avenatti is correct: if the acts of a President go so far beyond his official responsibilities *and* are serious actual statutory crimes (not just the undefined "high crimes and misdemeanors"), the Justice Department should seek a grand jury indictment which can then be challenged (or not) by the accused. The question of whether a President can be criminally indicted while in office is one that has not yet been definitively answered, and it needs to be, to guide any future such situations should they arise.

    It's also likely that, if the question were put to the Supreme Court, we would also get the opportunity to answer the related question of whether a sitting President can pardon himself.

  133. Do Americans believe a sitting president is above the rule of law, and cannot be indicted no matter what he or she does? If the president were a Democrat, would each of us come to the same conclusion? In short, do Americans agree with Mr. Trump when he said that his base would stand by him even if he murdered somebody in broad daylight on 5th Avenue?

    Should Mr. Kavanaugh be permitted to rule on a case involving the very president who granted him the priceless gift of a nomination to the Supreme Court? In other words, do they feel there would be no appearance of impropriety were that to happen, whether or not it is what they want to happen from a partisan or tribal perspective?

    Preventing the seating of an unfit president was the principal purpose of the electoral college. The original intent of the 25th Amendment was the removal of an unfit president. The oversight duties of Congress are among their most important Constitutional requirements. These institutions have utterly failed to do what they were originally intended to do. In light of that, should the president be permitted to place himself like a king above the rule of law?

  134. @Robert, you're reminding us that the Electoral College died 200 years ago when it was turned into a body of puppets, and it's time to bury the corpse.

  135. All are equal under the law, but some of us are more equal than others with respect to those laws. What many don't understand is that we have laws designed to treat us differently. Yep, you might be surprised that we're not equals.

    Here's an example, California has really lovely labor laws protecting workers, but these very laws do not apply to the state of California. California governments behave very badly because they are above the law that was written for others. Makes no sense, but we're living in a society that could care less.

  136. @Ron Bannon. You need to be way more specific and cite the law you are discussing. Otherwise, it just sounds made up.

  137. I think the bigger picture isn't just can a sitting president be indicted for a crime, but can a president go on trial while in office.

    Thinking that a president can be indicted, I would argue the process should be 1, indict. 2, impeach and remove. 3, prosecute.

    Waiting for impeachment prior to any indictment could mean leaving a criminal in office.

    We are seeing what happens when that is the case...

  138. @KEM Wouldn't the impeachment need the conviction first, to establish a "high crimes or misdemeanor" basis for said impeachment?

  139. "American public’s view of impartiality of the rule of law"

    Sadly, I have been learning that a large part of the population of the USA - and a substantial portion of the "Electoral Vote" is happy to say "Life Isn't Fair" - as long as life is more fair them, and less fair others.

    I would like to see a place that tries "Veil of Ignorance" in making laws and enforcing laws.

  140. The Constitution states that a President can be impeached for"....high crimes and misdemeanors..." That tells me that there needs to be a finding of a high crime or misdemeanor before impeachment can be invoked. How do we reach that point without 1) a criminal investigation of the President; and 2) a finding that he/she committed the crime that has been investigated? As I understand it, the finding of a crime can only occur through one of two ways - following a criminal investigation or by the issuance of an indictment by a grand jury - and the creators of the Constitution fully expected that could happen. I have never understood the argument that a sitting President cannot be indicted - that seems to be directly contradictory to the actual language and meaning of the Constitution itself.

  141. "I have never understood the argument that a sitting President cannot be indicted - that seems to be directly contradictory to the actual language and meaning of the Constitution itself."

    Quote the US Constitution. You can find it here:

    And be sure you understand that after a President has been removed from office, the now-former President can be tried "according to Law":

    "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." (Article I, Section 3)

  142. @gk
    No to mention the fact that a president who cannot be indicted would be, essentially a "King:. Was there anything further from the intentions of those who created our Constitution?

  143. @gk, you misunderstood "high crimes and misdemeanors". These are political crimes, such as colluding with a hostile power, imprisoning critics of his (or her) administration, or failing to perform the duties of the office. They have nothing intrinsically to do with legal crimes, for which indictment is a proper remedy.

  144. I heartily agree with Mr. Avenatti! I simply don't understand why a sitting President should not be subject to an indictment, if sufficient demonstrable reason for one exists, the same as any other citizen. The rule of law and the bedrock principle that no one is above the law demand it. That an indictment could hamper a President's ability to discharge his/her duties is a poor argument for the extraordinary proposition that we should simply set aside the rule of law when it comes to the President. Indeed, a President who is indictable for provable offenses may hardly be one that we want to be discharging any duties! Surely, there are accommodations available to ensure the Executive Branch can remain functional, even with an indicted President - there is, after all, a Vice President and a Cabinet. A high administrative cost perhaps, but that should be a price worth paying in order to uphold the rule of law and ensure no one is indeed above the law.

  145. The very idea that Judge Kavanaugh would not recuse himself if a case involving criminal activities by the man who appointed him flies in the face of what Americans have every right to expect from Justices of the highest court. Common sense and notions of fair play demands that this man remove himself from such an outrageous conflict of interest and ethical conundrum.
    One can only wonder why this would even be an issue.

  146. @Doc
    This is an issue because President Trump, who has raged and fumed at Jeff Sessions for recusing himself in the Russia investigation, and who has stated that he wouldn't have picked Sessions to be Attorney General if he had known that Sessions would recuse himself, has undoubtedly made it a requirement for Kavanaugh to be the nominee, that Kavanaugh promise Trump that he would not recuse himself.

  147. @Doc

    "One can only wonder why this would be an issue."

    It's an issue because republicans are currently in charge.

  148. Michael Avenatti is right that there is no Constitutional prohibition to indicting a sitting president for crimes committed before the president was elected to office.

    Avenatti is also right that were there to be such an indictment, Justice Brett Kavanaugh – assuming the Senate makes the terrible mistake of confirming Judge Kavanaugh – would need to recuse himself from participating in a review of any lower court decision allowing the indictment.

    That being said, it is more important to the nation right now for the Mueller investigation to proceed without the distraction to the nation of the Stephanie Clifford case and for the midterm elections to go forward.

    Note that any claimed distraction to President Trump is groundless, because of his self-inflicted distractions intended to deflect criticism on a wide range of subjects having nothing to do with Ms. Clifford or Michael Cohen.

    The distraction to a nation readying itself for important midterm elections is important, because we are or should be a nation already worried about an ongoing Russian conspiracy to interfere with yet another American election.

  149. Every president has taken an oath to uphold the Constitution, protect the country, and, while not stated directly, to obey the laws of the land. If Trump has broken the law he should be indicted even if he is a sitting president. If Trump was not a Republican president the GOP would have impeached him months ago. What the GOP has been doing since Trump was inaugurated is disgraceful. They are allowing a liar to continue his lying, to govern using racism and bigotry and financial favoritism to the detriment of the country as whole.

    Then again, this is the party that refused to acknowledge that President Obama was a duly elected president, that he had a right and a duty to nominate a Supreme Justice after Scalia died in 2016, and that they had no business interfering in presidential negotiations with another country. Perhaps, by not doing anything about Trump they are protecting themselves.

  150. @hen3ry
    Indeed. The RNC was hacked as well. Imagine what these old coots have in their emails! They may be blackmailed as well. They're in on it one way or another, now, whether they like it or not. They ought to be arrested too.

  151. @hen3ry Unfortunately oaths made by liars mean nothing, not to presidents, not to Republicans, not to candidates to the Supreme Court.

  152. @hen3ry Elections overcome protections.

  153. 1. The Supreme Court's decision in Clinton v. Jones supports indictment because it held that a sitting president may be named as a civil defendant, and is therefore required to respond to civil discovery, which is often an onerous and time-consuming process. By contrast, there is no discovery in criminal cases. By definition, therefore, a civil trial is substantially more burdensome than a criminal trial.

    2. Nothing in the Constitution's structure or logic bars a state from indicting a sitting president for state law crimes alleged to have been committed within the jurisdiction of the state before the commencement of the president's term of office. States are quasi-sovereign entities, and their power to enforce their several criminal laws is not preëmpted by taking the presidential oath.

  154. "States are quasi-sovereign entities, and their power to enforce their several criminal laws is not preëmpted by taking the presidential oath."

    That's ridiculous. A politically-motivated state prosecutor could indict a sitting President, and then what? Issue an arrest warrant?

    You need to do a LOT more work to explain how that would be constitutional!

  155. "And if the House were to initiate impeachment proceedings, it is hard to see how that process would be any less distracting than a criminal indictment."

    This is an excellent argument. The rational about not "distracting" the president makes no sense. Not to mention the average person's question of "Is there no crime that is worthy of indictment?" It's easier to opine that the POTUS shouldn't be distracted for white collar crime, but what if Trump literally shot some on Fifth Avenue?

    Avenatti is right. It's time to settle this.

  156. @JMM
    Distracting POTUS by a criminal indictment may reduce his volume of tweeting. Since he is incompetent in "governing", compared to at least the last ten US Presidents, such a distraction might allow him to concentrate his chaotic brain onto a memorable topic. Assuming he has the staying power. However, getting an such indictment past SCOTUS seems like a very long shot.

  157. Trump is the culmination of many tests for a nation we've always thought of and touted as a democracy. However it all ends, Trump will cause a series of changes to our constitution.

    Quite clearly, our democratic principles aren't quite as stout as we've misled ourselves into believing. The first indication we have is that our nation began on the basis of the enslavement of others. There are still parts of our laws, whether federal or state, that relegate a citizen's status to something other than in full standing, whether it is due to the past conviction of a crime or the zip code that person might live in.

    The prison industrial complex and gerrymandering have been the main way around giving full citizenship to all. The fact that millions are unable to vote even after completing their prison sentences should stand out.

    The way our political parties are structured also points to flaws in "democracy." We've seen, in 2016 and 2018, that how candidates are selected can be manipulated by national party figures and entities. Add in money in politics, and all is not well in our democracy.

    Lastly... vetting. There is absolutely no vetting process for candidates, at any level. We've relied, this entire time, on scandals coming out in the media to weed out bad candidates, until Trump.

    Can a president be indicted? The fact that anyone can cast doubt strengthens the view that we are still not a democracy.

    What Trump Did While You Weren't Looking

  158. @Rima Regas

    "Add in money in politics, and all is not well in our democracy."

    Not to mention that it's generally understood by those who study these things that we are using rigged voting machines.

  159. Only an American-born citizen can become the President. Therefore, citizen first, President later. And all citizens are subject to the same laws. At least, that should be the only inference. If the President has committed crimes he has to be indicted - by a panel of judges. A grand jury comprising of John and Jane Does cannot understand the complexities involved. Besides the jury will never be apolitical! But as mentioned if Supreme Court were to review, indictment will never see the light of day. I have no illusions about this Supreme Court. More so if Kavaugh is confirmed. He has stated that he will always rule according precedent which is established law and there is none. Also that Presidents should have immunity irrespective of crimes committed!

  160. @NNI. Who are you to say that we, the people, cannot understand the complexities involved????

  161. All nice and well Mr. Avenatti, but eventually the matter will end up before a right-leaning (extreme right in the case of Thomas) SCOTUS. And now with presumptive nominee Kavanaugh tipping the balance, the outcome is pretty certain . . .

  162. @PS,

    And, this time, unlike 2000, when SCOTUS threw away honor, forever, we should rebel. There should be riots in the streets. When it's done, and the military and police have justly sided with the People, we should hold our own trials of the Supreme Court. They should be tried for malfeasance, dereliction of duty, and political corruption --- epidemic in the Roberts court. Let them rot in prison!

  163. The incontrovertible facts are that the current occupant of the white house committed crimes in both getting elected (collusion, campaign finance violations) and after election (obstruction of justice, violation of emoluments clause). And these are in addition to his pre-campaign crimes as a bankrupt real estate developer. The argument that a sitting president cannot be indicted, as baseless as it is, is even more troublesome when applied in this case of a person who is a national security threat.

  164. I'm not a lawyer. I have (unlike the current president) read the Constitution through several times. The language and phrasing of the authors, while hardly what would be considered that of daily conversation, especially in 2018, is generally accessible to anyone with a decent high school education. I find it impossible to swallow the concept that the founders held the office of President of the United States to confer upon its occupant immunity and impunity from the duly passed laws of the land. Had that been their intent, they would have plainly stated the the President is above the law, a King, if you will.

    No, I think it safe to say that, confronted with the man currently holding office, his history and his current actions, the authors would be appalled, first, that such a person was President in the first place and, second, that Congress had not removed him post haste.

    Those justices on the Supreme Court who consider themselves "originalist" in philosophy should have little problem arriving at a decision if they truly are channeling, Jefferson, Madison, Adams, Franklin & Co.

  165. @Glen I agree with you. If nothing else, the writers of the Constitution were fully aware of the perils of public corruption. Especially if there is even a whiff that Trump's winning the presidency was an ill-gotten gain, this president MUST be held accountable. If the framers thought that the "distraction" of an indictment was too much attention drawn away from the business of the nation, why would they have put in place the process if impeachment? As Avenatti observed, being charged with a crime is hardly more distracting than an impeachment process. If this democracy is to work, then no one can be above the law--including elected officials, including the president. It seems inescapable that Kavanaugh will be confirmed (unless Senators Murkowski and Collins become the brave women we hope they will be); there is little reason to expect that the newly seated SCOTUS will recuse himself. Can any of us imagine that there wasn't a litmus test conversation bet. the nominee and McCann and/or Trump about his position should Trump's fate come to the Supreme Court? Of the many possible candidates, Kavanaugh was distinguished by his support of (supreme) protection of the executive branch from prosecution. The litmus test conversation happened, for sure!

  166. @Glen I completely agree. But we now have a Republican Party which obviously will do anything, tell any lie, whatever, just to win decisions considered to be in the interest of their cronies. Where all of this leads is too frightful to contemplate.

  167. @Glen No "Man" is above the law. While it may take longer than usual to prove whether our Liar-in-chief falls into that category, it should not take much time at all to prove that he has violated the law and our constitution.

  168. Key point not addressed: if presidents could be indicted, they would have greater incentive to obey the law. Even if their party controls congress.

    Mayors, governors, CEO’s, senators, billionaires, and everyone else can be indicted. The world doesn’t stop when that happens. And we’re not indicting presidents left and right, it doesn’t seem like it would be a common occurrence.

  169. All this discussion and opinion is interesting, but, as Mr. Avenati points out, this needs to be tested to see what the "real" answer is. All judicial appointees of the President should rightly be recused, but that is not likely to happen.

  170. @Brewmeister

    It's funny, Kavanaugh is worried about pre-judging a case, but utterly unconcerned about being prejudiced in a case (in favor of the person who appointed him). I guess that's because like the completely apolitical Neil Gorsuch, Kavanaugh is just a plain ol', aw shucks umpire calling balls and strikes.

    I all likelihood, Kavanaugh wouldn't be prejudiced in favor of the president who chose him. That's because Kavanaugh has an agenda -- one with both political and religious components -- and his votes are already set in stone. His motto, like Gorsuch's, could be: "Evidence? We don't need no steenking [sic] evidence."*

    *I hope Alito, Thomas, and Roberts don't feel left out. They could easily adopt the same motto.

    (Is anyone else nauseated?)

  171. Seems that an indictment might provide leverage, and rationale, for Congress to halt the Kavanaugh confirmation.

  172. If anyone is above the law, there is no law. If a president cannot be indicted or can even pardon himself this means that the president can break the law with impunity or even declare law, which he disturbingly does with so-called signing statements.
    If the law does not apply to one man the law cannot apply to any, since if one man can make up or break the law at will there is no meaning to the concept of law. If the president is above the law, therefore, there is actually no law, which means everyone is above the law. It's pretty obvious this would not be a good thing for any of us.

  173. @David Jacobson
    "If a president cannot be indicted or can even pardon himself this means that the president can break the law with impunity..."

    The president can be indicted once our of office --everyone agrees about that. The president's pardon power is for federal offenses, so he can't break state laws with impunity, although there are plenty of states today where it might be impossible to empanel a jury that would be willing to convict -- even if the evidence was "beyond ANY doubt." Trump's cult support is probably somewhere in the range of 25%-30%. It only takes one juror out of twelve (8.3%) to acquit.

    "It's pretty obvious this would not be a good thing for any of us."

    Wrong. It would be great for Donald J. Trump. But you're certainly right about the rest of us.

  174. @David Jacobson, thanks for mentioning the abomination of political signing statements.

  175. Michael Avenatti offers an opinion which matches mainstream, although arguably minority, support. As a professor of law I am no more qualified than he but my opinion is certainly of equal stature, and is certainly interesting, and I believe correct.

    I am familiar with his entire argument but I believed it gives up more than necessary. I have read the Federalist Papers (they really say nothing of substance here).

    The Constitution endorses impeachment for "high crimes and misdemeanors." While saying very little, the Federalist Papers do say that those violations must have a political impact such that they interfere with government.

    Let's say Mueller comes out with an endless litany of violations and factors supporting them. He lists ten violations that he believes impeachable. What if the facts reveal another litany of cases that do not rise to the level of impeachable? The theory that impeachment is the sole remedy applies to high crimes etc. Thus Avenatti opponents claim that only impeachment can lie.

    Where do all the crimes that don't amount to the impeachable get judicially resolved? Not Congress clearly. Mueller or others can indict him, including the lesser serious crimes. If not , we all agree he has no license to crime. There is only one alternative. Let the court decide which ones are impeachable or not. As long as there is at least one such (ha!), indictment is essential.

  176. @Mickeyd HEAR! HEAR!

  177. @Mickeyd

    The framers really dropped the ball when they wrote Article II, Section 4:
    "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

    First, the language and its meaning are archaic. We need an amendment to clarify what offenses should be met with impeachment and Senate trial.

    In that section as well as in Article I, Section 3:
    "6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

    7: 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."

    ...we learn nothing about indicting a sitting president. It's clear that a president once removed from office can be indicted, but I see nothing to preclude a sitting president from being indicted while in office. Once again, originalists will just have to make it up to fit their desired result. They learned from Scalia.

  178. I'm amazed that in a country that purports to be a nation based on law, and equality before the law, that this is even a question. Kavanaugh's refusal to address this should be grounds alone for his removal from the bench let alone permitting him to go forward in potential confirmation as a Supreme Court Justice. Supreme Court indeed!

  179. @Robert
    There are too many holes in our constitution and the US constitution is after all not as good as it is made out to be.

  180. @Robert

    Agreed. As pointed out, indictment is not a verdict. Kavanaugh would not be offering an opinion on the outcome of the case against Trump, but only whether or not others have the right (and obligation) to apply the law to a sitting president.

    I've searched the Constitution for words that tell us a sitting president can not be indicted and I can't find them. Scalia, the most famous "originalist" claimed that we must adhere to the explicit wording of the Constitution and not try to divine what the authors "meant." Since there are no words forbidding the indictment of a president, I don't see how any "originalist" can justify a claim that it is constitutionally impermissible unless he or she resorts to the last refuge of originalists -- blatant hypocrisy. And sometimes it is the first.

  181. If the rule is that no one is above the law, the NO ONE is above the law. That is the only logical interpretation. How could anyone argue that?

  182. If enough evidence is gathered against Trump to justify an indictment, and it has to go to the Supreme Court, I don't see it passing muster. Even if Gorsuch and Kavanaugh recuse themselves, which isn't a given, I can't imagine the four right-leaners would ever declare the indictment constitutional.

    An indictment, conviction and prison are my wishes for Trump. However, if there is enough evidence for an indictment, there would surely be enough for impeachment. After that, we would have to figure out how to get rid of Rev. Pence.

  183. Trump could be indicted for any number of offenses from Russia collusionin the 2016 election to multiple business dealing with Russian oligarchs tied to his personal income taxes.

    But the better way to deal with Trump is to weaken his hold on power in upcoming mid terms this year and then to deliver a decisive verdict by the American people in a solid rejection of his leadership in 2020.

  184. The Justice Department is part of the executive branch. Its opinion on the right to indict is thus tainted. A grand jury is empaneled by the judicial. Under the seperation of powers and our system of checks and balances a different branch of government should be able to challenge the opinion of the executive branch.

  185. We are living in dangerous times, and may be watching the unraveling of democracy. Certainly, I was taught, from grade school, that in America, no one is above the law. So, which is it?

  186. We need to protect our system of "rule of law," not supplant it with "rule by lawyers".

    Nixon was an "unindicted co-conspirator" who eventually resigned.
    Agnew faced likely indictment when he pled no-contest and resigned.
    Clinton was not indicted, although special prosecutor Starr recently opined that he could have been.

    Could Trump be indicted?

    Whether the Supreme Court might agree to rule on the case might depend on whether it thinks it important enough.
    Arguably it is not sufficiently important.

    The Constitution is the supreme law of the land. Clearly the Constitution places priority on the procedures by which a sitting president can be impeached and removed from power.

    In the case of Nixon, it was widely agreed that the question of whether he should remain in office was to come first, and that legal prosecution, if any, would come only later, and assuming that he in fact did leave or was removed from office. As it happened, Nixon resigned his office but was the pardoned by his successor Ford on the grounds that the "national nightmare" had gone on long enough, and that Nixon had been sufficiently punished. That was a quite controversial step, but there was no argument that an indictment should have come first, and instead of impeachment or resignation.

  187. I think the title should have read 'a President', not 'the President'. It is, of course our current Tip Top Exec that has raised the issue. The decision will be a Constitutional one, a precedent that will affect the Oval Office going forward.

  188. Avenatti: "... regardless of stature or station."

    That's the usual anti-Trump talking point -- that the President is just like everyone else. But that is false, because there is only ONE President, and that President has unique powers under the US Constitution.

    Avenatti: "... Clinton v. Jones, holding that a sitting president has no immunity from civil litigation ..."

    Civil litigation is not the same as criminal indictment, so that is a specious argument. A defendant in a lawsuit cannot be sent to prison.

    Avenatti: "... they do not begin to approach the weight of an actual Supreme Court decision."

    The Supreme Court will not touch such a case -- the Court will say that it is the duty of Congress to punish malfeasance by the President.

    Avenatti: "... who on the Supreme Court should be allowed to review an indictment against the president."

    Avenatti didn't state that clearly. The Supreme Court would not be "review[ing] an indictment", because the Supreme Court does not conduct trials. Avenatti needs to posit the LEGAL grounds that would lead to REVIEW by the Supreme Court.

  189. Is it too much to ask exactly what crimes President Trump is to be indicted for?
    The author assures us that gossip says there are many possibilities. It is curious that after more than two years of investigations "gossip" is still all any of President Trump's enemies have to offer.
    If "gossip" is to be the new basis for demanding indictments from grand juries then all of us aren't even bread crust much less ham sandwiches in the Democrat's Brave New Deli.
    But, really, are any of us surprised?

  190. We definitely will need constitutional amendments after the Trump disaster --

    1) Explicitly prohibiting the president from pardoning any of his associates, current or past employees, witnesses to crimes he may have committed, etc.

    2) Explicitly permitting the indictment and criminal as well as civil investigations of a sitting president.

    3) Mandating that all special counsel or special prosecutors be delivered to Congress and made public -- to the press and the American people.

  191. It has long been accepted that only congress has the authority to reign in a sitting president. This notion has now been disproven. The founders never imagined that both houses of congress, and pretty soon, with the appointment of Kavanaugh, the supreme court as well, would all conspire to cover up and in fact enable presidential crimes. But this is what has happened, and It shows that the current system does hold the president to be above the law. Per this tenet, Trump is wholly correct in his famous assertion that he can shoot someone on fifth avenue and get away with it. Of course the president must be protected from frivolous legal actions, but to say that he totally above being indicted for whatever crime, or above being forced to answer a subpoena, makes him a god among men. It means that he is above the law. It is difficult to believe that this was the intention of the founding fathers. It is highly likely that this so called president has committed serious financial crimes. It is highly likely that he has accepted compensation in return for favors. It is highly likely that he has sold out our republic to a hostile foreign power. It is very convenient for Republicans to now say that the only recourse should be impeachment by the congress, since they control the congress. However the rest of our citizenry deserves much more than that. We deserve justice. A criminal president, immune to prosecution, makes a mockery of our system of justice.

  192. Judge Kavanaugh shouldn't even have to recuse himself...

    In a court of law if a judge or prosecutor is found to be corrupt all cases they have handled are open to retrial.

    What recourse do we have if our president is found to be a traitor and a criminal? Shouldn't every appointment and executive order be suspect too?

    Shouldn't we view the appointments and orders from the foundation that everything Trump is doing is to subvert America? Therefore every action no matter how well it can be argued as simply a typical political move, should also be considered as potentially threatening to America.

    I believe Trump is a traitor. I believe a movie like "Active Measures". And if you believe it too, then surely you believe Trump is intentionally making choices that he believes (or Moscow believes) will hurt us in the long run. That includes Kavanaugh and Gorsuch.

  193. In my view 45 should be indicted for crimes committed while in office and directly connected to his official duties, namely obstruction of justice, acceptance of monies (emoluments) from other countries and, in my opinion treason, by holding secret meetings with Putin and advocating for removal or reduction of sanctions against Russia. This is not some scandal about personal actions (sex), this is a fundamental violation of laws designed to protect our democracy. If there ever was a situation where indictment and prosecution of a sitting president is warranted, this is it.

  194. The article leaves out a very important item. Exactly what crime would Trump be indicted for and what probable cause exists to support any charges.

    Nobody can force a SC Justice to recluse himself from any matter. Each Justice is the sole judge as to whether or not to recluse.

    Lastly, during the last presidential campaign, Justice Ginsburg made several derogatory comments against Trump. She would be open to severe criticism if she did not recuse herself.

  195. @AJ

    Recuse. And forget it about Ginsburg. Are you kidding?

  196. This should have been settled with Nixon. For far too long, we have treated our presidents like elected kings. Even Obama acted like one. I remember some bicyclist accidentally stumbling into his motorcade being tackled by SS and being arrested and charged: enough!

    The only reason Nixon didn't go to jail was because of graft and corruption on both sides of the aisle but mostly on the Republican side. Watergate was less about Nixon and more about giving the GOP time to get out of the way. Otherwise, we'd have spent the 70's locking up scores of politicians. We, as a country, had better things to do.

    Now, is the time, if there was one, to put the president back in his place. President Washington would be ashamed of how this office is being managed now and for the past several generations.

  197. I greatly admire and support all that Avenatti has done to shine light on our lying, amoral, disaster of a president. And I certainly don't doubt that a sitting president can or could be indicted. I also hope that doesn't happen. I think it would set a terrible precedent that will weaken the presidency and may be used strategically in the future for malicious political ends.

    I think Gerald Ford got it right when he pardoned Richard Nixon so that the country could heal and restore the integrity of the office and institution of the presidency. An enraged nation was out for blood, because they wanted Nixon to pay, and Ford took a huge hit for granting the pardon. People are enraged today (and I think the rage will grow when Mueller's report is issued). An indictment may satisfy the anger, but the presidency will be hurt by it more than Trump will.

    Democracies are fragile and an indictment will open up a Pandora's box that is better left shut. Let Mueller issue his report, let it go to Congress, which will hopefully impeach and convict the president through the mechanisms the founding fathers put in place. Let the next president (whether it is Pence or the Speaker of the House in the event Pence is brought down as well) pardon Trump and send him along to the dustbin of history while the nation heals. I would much rather that happen that a criminal trial and imprisonment.

  198. There is ample evidence on which to base an indictment of Mr. Trump. Under the precept that no man is above the law, he must be indicted. Period.

  199. The problem has always been that prestigue, money and being white has stopped these people from being indictied for anything.
    An example is 2008 when Banks and Mortgage companies failed to be indicted for their crimes. There are numerous examples of this occurring and it's a very sad state of affairs. Trump and the Republican party are disgusting in how they have been operating in the government system. The average citizen is of no value only the 1% and the lobbiests who are paying incredible sums of money to these Senators and Representatives. I am so angry and upset that protesting is pointless.

  200. Indictment is the ONLY way to get rid of a criminal president if the majority in Congress are frozen in their seats and refuse to start impeachment proceedings. The Constitution leaves us with no other option. The original framers of the Constitution could never have imagined the situation where we find ourselves today.

  201. "Some also argue that indicting the president would critically impair his ability to lead the country." Well, patently that doesn't apply in this case since Trump is already impaired.
    As to Kavanaugh's being seated, if he doesn't recuse himself wrt Trump's malfeasance, I hope his other 8 colleagues would keep him out of the decision-making process.

  202. Trump has the full support of the Republican Congress because they share ugly traits. They are willing to cheat (refused to share information, allowed no debates, changed the way laws are passed, dropped people from voting roles), lie (about the enormity of "illegal" voting), and allow their colleagues to act with impunity (Nunes. Pruitt, McConnell and Trump himself.) They will do nothing about Trump. Meanwhile, we have heard very little about the nature of the information that the CFO of the Trump Organization is sharing with Mueller. I hope he has had enough of Trump and will tell the truth about Trump's business dealings. Only unmistakable legal transgressions and/or a blue wave, will rid us of this man.

  203. @Judith Stern

    Voting rolls.

  204. Yes Avenatti is self serving but what presidential candidate is not? After the last election I am not trusting of the voting public or the polls. What the Democrats don’t need is a sincere but lackluster candidate. We have tried that three times and failed. We need a a charismatic person who can get down and dirty with the shameless, dirty, and often criminal Trump and his party. Do we need more evidence or are we going to get serious about winning elections?

  205. Here's what SHOULD happen, if we wish to remain a democracy with checks and balances: (Kavanaugh) if elected and even Gorsuch, who Trump appointed should recuse themselves for anything relating to Trump and criminal activity. And if they don't, Chief Justice Roberts should refuse to hear arguments. If they don't recuse themselves, just refuse the cases.

  206. The argument that Trump is too busy with other matters to be indicted is preposterous.

    What is he busy with?


  207. "If ... facts and evidence are adequate for indictment, then prosecutors must be blind to the officeholder’s position." This seems obvious; it's sad that it even needs to be stated.

    Trump took an oath to uphold the Constitution and related laws. He has committed perjury relative to that oath alone - beyond all of his other crimes.

  208. The idea that a President can not be indicted and prosecuted for crimes committed while in office, and thrown in jail doesn’t make any sense.

    Let’s assume that President Trump is found to have conspired with the Russians to defeat our democratic process. Am I supposed to believe that he will get away with those crimes?

    When a president commits crimes while in office, impeachment is not enough. If it is, then we are asking for a future president to engage in even worse behavior and able to get away with.

  209. Imagine a world where the media (most of it) decided to be fair. Imagine a companion piece that was headlined, The Case for Not Indicting the President. But, I kid myself.

    How did it happen that for all their own conservative preferences, FoxNews actually turns out to be the most fair and balanced media source (and you only need to turn to the 2016 study by Harvard, if you can't believe it)? I would not have guessed that.

    I've said this a thousand times and I've heard many others say the same, including lifelong liberals (which I was for many years) and Ds - the press has really let us down and are partially responsible for his victory.

  210. Mr. Avenatti must have missed the constitutional law class on separation of powers. Mueller is an Executive Branch officer; he can't indict the President because there is a Justice Department (Executive Branch) policy against it. Avenatti talks about the "rule of law" but he wants to breach the rule of law here to get a certain result. And the reason why impeachment is the only option is because that remedy is specifically set forth in the Constitution; gives Congress the primacy that it is entitled to; and is democratic. The Supreme Court is not entitled to rule on "indictment" as a check on the President. And the argument that interference with a president's duties is not an issue because there is already "chaos" is ridiculous.

  211. The idea that no citizen of our nation is above the law is imbedded in democracy and our constitution. Yet, if the president was able to be indicted as ‘easily as a ham sandwich’ by an overzealous prosecutor, it would invariably lead to not only abuse, but the crippling of America as succeeding administrations retaliated in kind. We have pretty much successfully avoided this clash of ideas since our nation's founding. If the Dems win the majority of seats in the Congress in November, we may avoid the issue since they have the power to impeach. If not, we can expect this debate to be placed on the front burner. It’s fair to assume that Trump nominated Judge Kavanaugh in either event .

  212. Fine that this guy puts on a strong case against Trump and for Stormy Daniels.
    But I object to his using this high profile case to promote his ambition to launch a presidential run on the Democratic ticket against Mr. Trump.
    After the disaster of the current occupant of the Oval office, we surely do not need another would-be celebrity candidate in the next presidential race and God forbid in the next White House.
    Stay in the court house, Mr. Avenatti, and forget about the White House

  213. "Some also argue that indicting the president would critically impair his ability to lead the country."

    I would argue that Trump hasn't actually led the country since taking office, so this point is moot. Furthermore, "leading" the country badly and chaotically is worse than having no one lead it at all.

  214. Since taking office, Donald Trump has spent far more time composing early-morning Twitter rants, watching television and playing golf than he has doing anything that might even be vaguely construed as "presidential." To argue that he's too busy or too deeply immersed in the duties of his office to stand trial is absurd.

  215. "Should Mr. Trump be indicted and in the event that the case reaches the Supreme Court, Judge Kavanaugh’s recusal should be mandatory. The American public’s view of impartiality of the rule of law and of the Supreme Court hangs in the balance"

    I am surprised to see you draw what I think is a naive conclusion. Perhaps YOUR view of the American rule of law would be vitiated in the absence of a Kavanagh recusal, but for many of your fellow citizens, and certainly for many, many of those from beyond your borders, the bubble burst long ago.

  216. That Trump's abusive stance in government must be confronted, no question about it, as he still considers himself above the law, a most arrogant situation. Trouble is, with republican complicity in full swing, a failed indictment may actually strenghten his hand. And that would be an abomination.

  217. The argument for recusal is laughably weak.

    For actions taken while President the remedy is constitutional and political and so the responsibility of Congress.

    For crimes committed before taking office the President should be indictable during his term.

  218. "... Some also argue that indicting the president would critically impair his ability to lead the country. ..."

    Where is the leading part? He is simply milking his position it for all its worth, and poking a stick in the eye of anyone he doesn't like.

  219. As a law-loving liberal I suggest that we find that Trump has actually committed a crime before we indict. I'd like to wait for Mueller's report.