The Law Of Unintended Consequences: Mueller’s Promise Not To Indict Trump In Office Is No Favor

Below is my column in the Washington Post on the statement by lead Trump lawyer Rudy Giuliani that Special Counsel Robert Mueller had assured the Trump team that he would not seek an indictment against Trump while in office.  As I have previously written, I do not agree with those who maintain that a sitting president cannot be indicted.  However, what is most striking is how many assume that it is better for the President to face an impeachment (which is part of a political process) than an indictment. For a criminal defense standpoint, the opposite may be true.  Indeed, the best possible scenario for Mueller would be to have an impeachment before an indictment.  None of this means that there is a strong case for either impeachment or indictment, but the sequencing laid out by Giuliani is no favor to Trump.

Here is the column:

“They can’t indict. Because if they did, it would be dismissed quickly. There’s no precedent for a president being indicted.”

So declared President Trump’s lawyer, former New York mayor Rudolph Giuliani, who eagerly recounted this week how special counsel Robert S. Mueller III’s team has assured Trump’s legal team that Mueller won’t try to indict the president while he remains in office — a decision based, presumably, on a long-standing Department of Justice policy that holds that a sitting president can’t be indicted.

Plenty of legal scholars, including me, disagree with the basis of that policy: Nothing in the Constitution bars indictment of a sitting president.

But even if Mueller opts to follow that questionable policy, it may not be the legal victory Giuliani seems to think it is. Trump might fare better if he’s indicted, and not impeached. Indeed, for Mueller, the question might only come down to the order, not the merits, of these actions. In other words, Trump could find himself both impeached and indicted. An impeachment can even make such an indictment more likely.

Under his mandate as special counsel, Mueller must follow the “rules, regulations, procedures, practices and policies” of the Justice Department. Arguably, that binds him to the department’s two Office of Legal Counsel (OLC) memos, neither of which has the force of law but which both support the principle that Trump can’t be indicted while in office. During the Nixon administration, OLC found that, despite acknowledging “troublesome implications” and “certain drawbacks,” “an impeachment proceeding is the only appropriate way to deal with a President while in office.” During the Clinton administration, OLC conceded that the question of indicting a sitting president was an open one but, ultimately, concluded that “neither the text nor the history of the Constitution” is “dispositive” on this question. Despite this finding, OLC explained that no indictment of a sitting president should be sought because of  “more general considerations of constitutional structure.” The OLC has a long history of supporting inherent executive powers, but this memo stood out as a superficial and self-serving (and mostly wrong) analysis: The Framers of our Constitution discussed presidential powers at length and in detail. There was no stated intent to create such a sweeping immunity in this one officeholder.

But while many legal observers disagree on the underlying question of the constitutionality of indicting a sitting president, there is close to universal agreement that it is better for the country to have presidential impeachments precede indictments. This, however, is only a matter of sequencing. Even if Mueller does not seek an indictment for constitutional reasons, he could easily do so if Trump is removed from office or after the president completes his term. That sequence would work against Trump’s interests as a criminal defendant.

As the lead defense counsel in a 2010 impeachment trial in the Senate, I can say from experience that I would much prefer a client to be indicted first, rather than impeached. To start with, a defendant under indictment can avail himself of myriad constitutional and procedural protections that aren’t available in the impeachment process. In impeachment proceedings, the federal rules of evidence on issues including hearsay and chain of custody are discretionary, not binding. The ability to call witnesses, presentation of evidence and discovery are all left to the Senate’s judgment. Then there is the jury. There is no voir dire or vetting; the defense is stuck with 100 elected, career politicians who, in many instances, have already made public statements regarding your client.

Conversely, an indictment comes with a formal grand jury determination and set stages of the legal proceedings, from arraignment to pretrial to a trial with a real judge. Defense motions to address violations of the defendant’s First, Fourth, Fifth and Sixth Amendment rights are routinely heard and carefully addressed. Firm evidentiary rules — both statutory and constitutionally based — guarantee the timely disclosure, to defense lawyers, of evidence and witnesses known to government prosecutors. At trial, judges control witnesses to avoid prejudicial statements or testimony related to excluded evidence.

Not only is the criminal process fairer to defendants, but also the fact of a prior impeachment proceeding can be deadly for a later criminal defense. Faced with an impeachment, a president must decide whether to testify at the risk that anything he says can be used at a later criminal trial. And there’s the potential that in the course of impeachment proceedings, otherwise privileged or confidential information could become part of the public record and thus accessible to prosecutors in a later indictment. In Trump’s case, if the eventual report of the special counsel’s findings led to impeachment, Mueller could sit back and watch things play out, while gathering the fruits of the impeachment process to be used in a subsequent indictment. This includes getting a preview of the arguments and evidence the president would use to mount his defense. For Trump’s attorneys, that would be like playing a poker hand and then having the dealer say, “play the same cards, again, for real this time.”

If Trump were indicted, it’s unlikely he would face a trial during his tenure in office. It would be years before legal and procedural issues were fully addressed by the courts, including settling the question of any immunity from indictment while in office. Courts can be highly deferential to presidents and would likely schedule a trial after Jan. 20, 2021 (or Jan. 20, 2025, as the case may be). In past cases involving compelled appearances or answers from sitting presidents, courts have largely accommodated scheduling requests while refusing outright immunity arguments (as was the case this week, when Trump unsuccessfully sought to delay a defamation case brought by a former “Apprentice” contestant).

Moreover, if an indictment were to come before impeachment proceedings, that would give Republicans in Congress political cover to vote against impeachment under the rationale that they want to allow the courts to work through the issue. The president and his supporters in Congress could also claim that it would be unfair, and unduly burdensome, if Trump had to face both an impeachment and prosecution.

Of course, Trump doesn’t want to be indicted, at all. But if that happened first, it would offer him a broader measure of legal protection while offering maximum political cover to those opposing an impeachment bill. The federal statute of limitation for obstruction of justice, criminal campaign finance violations, false statements or criminal conspiracy — offenses likely being contemplated by the special counsel — is generally five years. Even if that statute began to run, let’s say, at the firing of former FBI Director James B. Comey in May 2017, the statute would not run out until May 2022. Since many of these potential charges would involve allegations of ongoing violations, the period would run long past 2022.

Any of these scenarios is a long way off: The special counsel’s office has been mum on the subject, Giuliani’s assertions notwithstanding. Trump’s party currently controls both houses of Congress and has shown little appetite for impeachment. Publicly, at least, and most importantly, a credible criminal case against Trump has yet to materialize, and the president is entitled to the same presumption of innocence enjoyed by all citizens.

But here’s a scenario Trump wouldn’t like: If Democrats regain control of Congress during his presidency, he could face impeachment proceedings during office. Even if he survived impeachment like Bill Clinton, Trump could find himself facing awaiting prosecutors with a ready indictment and detailed knowledge of his defense. The difference would be that his liberty, not just his office, would be at stake. It is not constitutional law, but the law of unintended consequences, that proves the most dangerous in presidential scandals.

220 thoughts on “The Law Of Unintended Consequences: Mueller’s Promise Not To Indict Trump In Office Is No Favor”

  1. Guiliani’s record for truthfulness isn’t stellar. I take this comment about indictment with a grain of salt. It might be that his wishful thinking came out as a statement of fact.

  2. I might have learned something by reading this comment stream a second time. But I don’t think I learned anything about the law…

    1. David Benson – still owes me a citation from the OED. You might not have learned anything about the law, however, we learned a great deal about you. 🙂

        1. David Benson – still owes me a citation from the OED. I am currently taking 5 classes to learn new things, plus I belong to two book clubs, one fiction, one non-fiction. And I have this blog where people drop interesting factoids from time to time.

          You, the other hand, you have yet to figure out how to use the OED.

            1. David Benson – owes me a citation from the OED. Someone in my fiction group suggested that we read Weart.

      1. David Benson – still owes me a citation from the OED. Libraries on campus are open 24 hours during the weekdays. This would be a great time to go. Librarians could use the company.

          1. David Benson – is Making Stuff Up and still owes me a citation from the OED. Counterfactual? Are you saying the library is not open 24 hours?

              1. David Benson – owes me a citation from the OED. Well, then the website lies. It has its hours as open 24 hours M-T. So, who do I believe? My lying eyes or you?

  3. This is the inflection point.

    It’s the end of the beginning

    and the beginning of the end.

    What did Obama know and when did he know it?

  4. I believe a pretty compelling argument could be fashioned that the reference to impeachment in the Constitution is a bar to a criminal indictment in the civil courts on the principle “expressio unius exculisio alterius”.As well,a plea of “autrefois acquit”could very well be available as an absolute defense to criminal charges if the President was exonerated by a “friendly” Republican Senate majority.If I were Trump,I would be unafraid ifthe House were to deliver a Bill of Impeachment.At the very least,consecutive prosecutions could be framed as an abuse of process.Trump has not only already made Presidential history,he stands to make important legal history.

    1. The true American hero is currently running a bogus politically-motivate lawfare operation.

      1. Even though you are conspiracy minded, you are clearly very smart. And it’s easy to see that some of the wind is dropping from your sails. Your too smart not to figure out that Mr. Trump has conned the crap out of millions of Americans and is guilty as hell.

        1. Yeah, I’ve been sticking stilettos into Ralph Adamo and Ken Rogers because I’m ‘conspiracy-minded’

          1. @Insufferable May 21, 2018 at 8:01 PM
            “Yeah, I’ve been sticking stilettos into Ralph Adamo and Ken Rogers because I’m ‘conspiracy-minded’.”

            Was that a stiletto? It felt like a Nerf Knife. And you have swallowed the Zelikow conspiracy theory that 19 Saudis, some of whom turned up alive in the weeks following, did 9/11 all by themselves, haven’t you?

            So you are conspiracy-minded when it comes to 9/11, but only if the conspiracy theory on proffer is sufficiently ridiculous, and Zelikow’s satisfies your need.

            1. And you have swallowed the Zelikow conspiracy theory that 19 Saudis, some of whom turned up alive in the weeks following, did 9/11 all by themselves, haven’t you?

              I’m sorry you invest in rubbish from the wacky world of websites and I’m sorry you fancy yourself perspicacious for having done so.

              1. Insufferable May 22, 2018 at 12:24 AM
                ” ‘And you have swallowed the Zelikow conspiracy theory that 19 Saudis, some of whom turned up alive in the weeks following, did 9/11 all by themselves, haven’t you?’

                “I’m sorry you invest in rubbish from the wacky world of websites and I’m sorry you fancy yourself perspicacious for having done so.”

                Now you’re being as evasive as your partner in crimes against logical intellection, Allan. What has my visiting websites got to do with your having swallowed 9/11 Commission Executive Director Philip Zelikow’s official 9/11 conspiracy theory? I learned that you have swallowed it from reading your comments right here. Is this a “wacky website”?

                Does your subscribing to the Zelikow conspiracy theory regarding 9/11 and your subscribing to the theory of a conspiracy against Trump make you a “wacky conspiracy theorist”?

      2. Haha. Utter wingnut wackjobbery. But it looks good on you though. Pro tip: Enjoy the antics of your day glo bozo while you still can.

        this is to “hannity is my life guru” the nutty one

        1. Marky Mark Mark – you clearly have a problem with the truth. Do you know you are only writing for yourself? Like the Russians and FB, you affect no one.

    2. Yes. Decorated Vietnam Marine versus a scumbag who said his personal Vietnam was avoiding STDs in 1970s Manhattan.

  5. Please spare me outrage about Clinton’s server and her emails. Just stop.

    From the article: President Donald Trump uses a White House cell phone that isn’t equipped with sophisticated security features designed to shield his communications, according to two senior administration officials – a departure from the practice of his predecessors that potentially exposes him to hacking or surveillance.

    https://www.politico.com/story/2018/05/21/trump-phone-security-risk-hackers-601903

    1. No, here’s the newest narrative, from people whose evidence consists of a few quotations clipped from the Associated Press.

      1. Are you on continuous IV infusions of Trump koolaid every day?? Ask them to put some Haldol in there, too.

      2. The Soros-funded “Moscow Project” is a joke; it’s about as useful and reliable as The Onion or World Weekly News.

        1. We know many of those names already and their alleged contacts. Is the Moscow Project so bold they are libeling the people named? If that’s the case, then a flurry of lawsuits should follow.

    1. How many Russian contacts
      were involved in the foreign campaign opposition research purchased by the DNC and The Hillary Campaign Fund?

      1. You think Christopher Steele cares about abortion, gun rights and tax cuts..?? I doubt if he does. I doubt if an Englishman really cares about America’s Culture Wars. I think Steele really thought Donald Trump was a reckless fringe candidate. Which he was!!

        Tom, Republicans like you have bought into this revisionist history where Trump was a respected statesman going back several years. In reality Trump was an aging playboy whose business empire was built on tax subsidies and bankruptcy protections. And the entire Republican leadership viewed Trump as reckless loose cannon who popped off way too much. It was ‘that’ Donald Trump that Steele investigated.

        1. whose business empire was built on tax subsidies and bankruptcy protections.

          He was an equity investor in firms that went into re-organization Get back to us when you’ve learned what terms like ‘limited liability’ and ‘equity capital’ mean.

        2. Peter,…
          – You can attribute Steele’s motivations to whatever you choose.
          Leaving aside your take on the noble objectives that you claim, Steele/Orbis is a for-profit business.

          1. Any campaign, foundation or corporation can commission reports from Christopher Steele. He’s a researcher for hire. Furthermore, Trump’s odd links to Russian investors were written about in Business Journals long before the 2016 campaign.

            In fact, during the 2016 campaign, I was interested to learn that Business Journals had featured unflattering articles about Trump as far back as 20 years ago. Trump has always been a man of dubious integrity. So this idea that Christopher Steele had to ‘make things up’ is ridiculous.

            Trump was a fringe candidate who would never have gotten the nomination had it not been for the patronage of Right-Wing media. In another time, Trump’s jokes about Megyn Kelly’s periods would have ended his campaign. Jokes like that would ended the campaigns of almost any other candidate. But Trump played so heavily to racist sentiments that ‘deplorables’ didn’t care how deplorable he was.

            1. I don’t know if Steele worked on behalf of other Americanpolitical campaigns,or the political campaigns in other countries.
              There’s been widespread coverage of Trump’s business activities since the early 1980s.

          2. Tom Nash – Steele is supposedly on record in the British courts admitting he cannot back up the Steele Dossier.

            1. Paul, look up ‘dossier’ in the dictionary. Then compare it to ‘peer reviewed research’. They are two different things.

              ‘Dossier’ is a term detectives use. That was thoroughly explained to readers of mainstream media when Buzzfeed first broke the dossier story in January of last year.

              ‘Dossiers’ are reports documenting everything the detective or researcher could find. It’s a combination of fact, rumor and gossip. And one should note that Hillary’s campaign used NOTHING from the Steele dossier during the campaign.

              1. Peter Hill – that is odd because Buzzfeed is suing the DNC to back up the dossier to cover their a$$ in the various lawsuits filed against them. What do you expect the chances are that the DNC will be able to help out Buzzfeed?

                1. ‘Various lawsuits’..??

                  Michael Cohen, Trump’s attorney, has dropped his lawsuit. The other litigant is Aleksey Gubarev, a Russian businessman who feels that he was smeared.

                  The DNC has no obligation to support Buzzed in the suit Gubarev brings. Buzzfeed didn’t have to publish the dossier. The mainstream steered clear of the dossier because it ‘is’ only a dossier! Dossiers aren’t meant to be published.

                  https://www.politico.com/story/2018/04/19/michael-cohen-drops-buzzfeed-fusion-lawsuit-537327

                  1. I don’t think Steele passed the doossier itself to the media; what he did instead was to contact publications in a pre-election attempt to get them to publish the dossier allegations.
                    Prior to the election, only Mothrr Jones would publish dossier-related allegations.
                    There was a reason why the New York Times, The Washinhton Post, and other establihed publications wouldn’t help Steele get his allegations published.

                    1. Tom, Russia has hit men in England. I don’t think Steele wants to be that well known.

                  2. Peter Hill – since the Steele Dossier got published, including a copy getting to John McCain (that counts as publication) the DNC aka Hillary Clinton doesn’t have a leg to stand on. Even the British are going to depose Steele.

              2. @Peter Hill May 21, 2018 at 9:16 PM

                ” ‘Dossiers’ are reports documenting everything the detective or researcher could find. It’s a combination of fact, rumor and gossip.”

                Well, as a gossip columnist, yourself, that certainly accounts for your enchantment with the Steele dossier, then, doesn’t it? 🙂

                1. Ken Rogers – yes, thank you. Spelling was not my friend yesterday. I thought that was wrong, but I wasn’t going to look it up. Thanks again for the correction. 🙂

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