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.

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

  1. “…in presidential scandals.”

    Professor Turley, I’m beginning to lose faith in your objectivity. This is a “presidential scandal” but you have the wrong president. There is no “Russian collusion,” with the possible exception of that which obviously occurred on the democrat side. The rationale for the Mueller “investigation” is specious and malicious. There is a general coup d’etat in America being conducted by Obama as an “insurance policy” against the election of Trump, the “draining of the swamp” and the expunction of Obama’s programs and term. Rosenstein, Mueller, Comey, McCabe, Strozk, Page, Kadzic, Yates, Baker, Bruce Ohr, Nellie Ohr, Steele, Simpson, Hillary, Huma, Lynch, Clapper, Power, Farkas, Rice, Obama et al. have all but been proven guilty in courts of law of subversive acts from conspiring, abusing power, obstruction, mishandling and spying to “wiretapping” and “unmasking.” Yet you seem not to have noticed. You seem not to have noticed that Rosenstein and Mueller’s “investigation” is actually a fraudulent and contrived “witch hunt” and an illegal and treasonous “malicious prosecution.” Perhaps you are biased or you have become “penny wise and pound foolish,” unable to see the forest for the trees.

    • Being a Trump supporter obliges one to keep constantly subscribing to bigger and bigger conspiracies. And George’s comment here illustrates those dynamics.

      Trumpers must constantly update the number of “deep state” actors involved in the conspiracy. In that regard Trumpers are every bit as ridiculous as so-called 9 /11 ‘Truthers’.

      • Being a Trump supporter obliges one to keep constantly subscribing to bigger and bigger conspiracies.

        No, but it does encourage you to point and laugh every time the opposition comes up with a shiny new gambit. Emoluments clause! Russia Russia Russia !

      • Peter Hill says, Trump supporters are “subscribing to bigger and bigger conspiracies”. One could say, the DNC/Hillary are to blame for that reaction. Please do not tell me she was proven innocent. The IG will address this but many us have had top secret clearances. That was a BS outcome.

        The Russian collusion conspiracy was started by Hillary and the DNC. What hypocrisy. Blame Trump while you pay Russians some portion of ten million dollars to write the Trump dossier. Worse yet Hillary and the DNC repeatedly deny funding the Trump dossier?

        Strzok uses the Trump dossier and a friendly judge to get a FISA warrant(s) to damage Trump? Conspiracy if you know the Dossier is a political work product of the opposition party. Strzok is rogue at this stage.

        The DOJ IG began investigates the rogue Mr. Strzok and his team. Horowitz had to write three investigation reports because Strzok’s team is ubiquitous to everything this IG is investigating. Influencing a presidential election. Conspiracy.

        Senior FBI and DOJ senior officers can not be demoted by an IG without a cause. Twelve demoted FBI and DOJ senior officers. Conspiracy must have entered Horowitz’s deliberations. A legal system which treats democrats differently than republicans could be a conspiracy?

        Mishandling classified materials is a criminal offense.Despite the latter Hillary Clinton is allowed to testify before Strzok without being put under oath. Her close aides lied to the FBI and Congress but they were given immunity? Flynn gets charged even though FBI agents felt he did not lie. Conspiracy seems to follow Strzok. Fortunately Horowitz has the knowledge.

        • Gary, Trump and the Republicans control government. Are they so useless they can’t prosecute Hillary for what, in your estimation, should be a slam-dunk case..???

          Maybe there is no case.

      • @Peter Hill May 21, 2018 at 4:03 PM
        “Being a Trump supporter obliges one to keep constantly subscribing to bigger and bigger conspiracies. And George’s comment here illustrates those dynamics.
        Trumpers must constantly update the number of ‘deep state’ actors involved in the conspiracy. In that regard Trumpers are every bit as ridiculous as so-called 9 /11 ‘Truthers’.”

        Peter, do you seriously think that you’ve said anything here other than, “I am too fearful, too indolent, too intellectually limited, or all three, to actually examine the evidence of a coordinated effort by leaders of the Intelligence Community and the Obama Administration to illegitimately undermine the presidency of Donald Trump, let alone to actually examine the evidence that eviscerates the official 9/11 conspiracy theory that a rag-tag band of Arabs successfully conspired to overcome every component of the most highly-developed air defense system in the world and pulverize three steel and concrete skyscrapers by crashing planes into only two of them and also fly an aluminum airplane through a wall at ground level of one of the most hardened targets on the planet, the Pentagon”?

        Well, I’m sorry, but you haven’t.

  2. The Rudy G road show has been entertaining, to say the least, and with just flat out lies. He knows it and so does everybody else. This national embarrassment of a President, will be shown to either be a traitor or just outright crook. I betting on both. And more he runs his piehole the more he looks to be what they have said for a while now, incompetent, well over his head, pathological liar. While Trump makes sure China has jobs, and he gets a new hotel, he cares nothing of the corruption with himself and family, nor his cabinet. So the question is, where are those flag waving constitutional patriots?

    • will be shown to either be a traitor or just outright crook.

      Everyone’s telling us their hopes and dreams today.

      • And you don’t ? Facts are facts and you choose to ignore. How far are you willing to go before it hits you in the face/

        • The facts I’m not willing to ignore are that in 22 months they’ve come up with process crimes, a collection of Russian internet trolls (who they never expected to have to take to trial) and Paul Manafort’s business. In all your sh*tposting here, you’ve yet to define a set of crimes which you posit Trump and his campaign organization committed.

            • I notice that you delineated no offense Trump or his associates are supposed to have committed.

            • Chacha says you’ve yet to define a set of crimes which you posit Trump and his campaign organization committed.

              This is the #1 GOP talking point, as if any of us are privy to the work of Mueller and the FBI. So it is just stupid and silly and yet, like rats in a maze, they can’t stop themselves from repeating it endlessly.

  3. He’ll eventually just resign, but not until there’s no way he can lie, leverage or connive his way into staying. If the economy tanks or “corrects” to any significant degree and stock prices fall, he’ll lose the support of Congressional Republicans, and when Mueller fully develops the criminal case against him with solid facts that people like Nunes and Hannity can’t spin, he’ll finally go away in lieu of being dragged away by federal marshals.

    As to Mueller, who is a Republican, by the way, if no evidence of criminality was being developed after all this time, he wouldn’t continue the investigation. That’s what an honest person of integrity would do. When he was appointed, Republicans and Democrats both praised him for his integrity and legal acumen. He has already obtained indictments and guilty pleas, and no amount of investigating the investigators, complaining about biased media or corruption in the DOJ is going to change the facts or intimidate him. No amount of whining by Giuliani is going to make him go away, either. So, all you crude Hillary haters who love to blog on this page, who religiously follow Limbaugh and Hannity and display pictures of rubber vaginas and unflattering pictures of Hillary can keep it up if it helps dispel your anxiety about what’s going to happen. Trump is damaged goods, and the damage was self-inflicted. His “victory” wasn’t fair and didn’t reflect the vote of most Americans. Trump has degraded the office of the President. He’ll go sooner or later. Many of us wish it was sooner.

    • His “victory” wasn’t fair…He’ll go sooner or later. Many of us wish it was sooner.

      LOL! You obviously need a hamster during this most difficult time.

    • As to Mueller, who is a Republican, by the way,

      Really? Where’s he registered to vote?

      • Is it so unbelievable that a Republican would doubt Donald Trump..???

        During the campaign of 2016, Republican leaders were consistently leery of Trump. And this midterm election year, a record number of Republican Congressmen are planning to retire.

        Therefore this idea that Mueller is really a Democrat springs from revisionist history where Trump has been a great statesman all along. When in reality Trump was a freak candidate who mysteriously persevered in a freak election.

        • Ahhhh, so now its the “freaks” excuse.

          Note to Hillary: your cult refuses to concede the election results. Put on a russian hat to keep them animated

          Good girl. it looks very regal on you

          • The shrieking continues: “What about Hillary??!!”

            It’s the all-encompassing fallback. Just shriek “What about Hillary??!!” Watch ‘Leftists’ run for cover. In reality they’ll laugh, of course. But in your mind you score an easy victory.

        • Again, his voter registration card, please, not just reporters passing around memes.

          Mueller, Comey, and Rosenstein have all spent most of their legal career in the Department of Justice (70%, 60%, and 95% respectively). That’s their allegiance.

          I kept hearing Comey was a ‘Republican’, which is cute. He’s never run for public office and he’s lived in Virginia all these years, which has no party registration. (Rosenstein actually is a verifiable Republican, registered in Montgomery County, Md., albeit one considered by the Obama-bots to be suitable for a U.S. Attorney slot. Hmmmm).

      • DSS – you can put a handle on a printing press but that does not make it portable. If Mueller is a Republican, I am the Prince of Monaco.

        • It doesn’t seem to occur to Peter Hill that when you hire 14 lawyers and 4 of them are Democratic Party donors (and two of those four-digit donors), that might say something about your allegiances too.

    • NUT CHA CHA,

      Will President Donald J. Trump abolish “Affirmative Action Privilege,” welfare, food stamps, quotas. social services, Obamacare, public worker thug unions, WIC, HHS, HUD, HAMP, HARP, Depts. Education and Labor, forced busing, utility subsidies, Social Security, Medicaid, Medicare and the rest of the irrefutably unconstitutional, communistic, redistributionist welfare state before he resigns? He’s done some great stuff so far. Maybe it’ll be safe for all the parasites who fraudulently claimed “political asylum” to go home to their own “s—hole” countries before President Donald J. Trump leaves office.

      Will President Donald J. Trump compel people to make money the “Olde Fashioned Way,”

      to “Earn It?”

      Whaddaya think, Cha Cha Nut?

    • I don’t think he will resign willingly. His political lineage is Joe McCarthy to Roy Cohn to DT. He would be willing to destroy this country in order to try and save himself. Everything about his pathological narcissism suggests that he could not tolerate a loss as big as resigning in disgrace. He couldn’t even handle a moderately well attended inauguration since it was clear that Obama’s crowds far surpassed his.

      He’s both a dangerous and a pitiful man.

  4. TRUMP’S PRESIDENCY MAY END WITH ONE OUTRAGEOUS STATEMENT TOO MANY

    Robert Mueller may not fire the shot that ends Trump’s presidency. Instead Trump could end it himself simply by doing what he does best: ‘saying (or tweeting) something really, really stupid’.

    Since he first announced his candidacy almost 3 years ago, Donald Trump has said so many stupid, outrageous things that even the sharpest journalists have trouble keeping track. Statements that would have ended the careers of normal politicians have often gone unnoticed with Donald Trump. Many of his daily tweets, for instance, would have stopped the presses in a normal world.

    But one of these days Trump might say (or tweet) something so incredibly stupid and outrageous that people will ‘really’ take notice. Trump might shock the markets into a plunge that hits like an earthquake! Trump has, in fact, already caused a few market gyrations.

    But a serious market plunge, like 1987 for instance, could spark an intense discussion in the media regarding Trump’s fitness to serve. And that discussion could spook investors further; keeping the markets depressed as a constitutional crisis unfolds. A climate like that might spook the Republican leadership. Even Rupert Murdoch could decide Trump needs to go. Consequently Fox News could pull the plug on Trump.

    After 2 weeks of seriously chilled markets, Trump might find himself with no defenders whatsoever. At that point a delegation of top Republicans might visit The White House and say, “Mister President it’s time to go”. Trump will have no choice. With no Fox News to spin for him, and no defenders in Congress, Trump might have to board a midnight helicopter and that will be the end of his presidency.

    • LOL! You said normal politicians

      May, could, might. Yeah, that’s some really thoughtful commentary. He may, could, might fulfill campaign promises as well; something unheard of among normal politicians. Even the sharpest journalists may, could, might report on it too.

      News at 11pm?

    • “Trump might have to board a midnight helicopter and that will be the end of his presidency.”

      Careful what you wish, you might get it, namely the end of Trump’s presidency and the beginning of Pence’s.

  5. When the FBI gave Whitey Bulgar immunity if he would help them go after the Italian mafia in Boston, guess who headed the Bureau at that time, the one and only Bobby Mueller. Isn’t that grand!

  6. Just more crazy talk. Our weaponized, administrative state would never do such a thing. Right?

    “Whatever else is true, the CIA operative and FBI informant used to gather information on the Trump campaign in the 2016 campaign has, for weeks, been falsely depicted as a sensitive intelligence asset rather than what he actually is: a long-time CIA operative with extensive links to the Bush family who was responsible for a dirty and likely illegal spying operation in the 1980 presidential election,” explained Greenwald.

    https://www.westernjournal.com/ct/anti-trump-campaign-spy-exposed/?utm_source=facebook&utm_medium=TeaParty&utm_campaign=ttp&utm_content=2018-05-20

  7. I want to share some red-hot, fabulous Rick Wilson that just posted:

    You know what the Trump fluffers are ignoring, yes?They don’t want to ask the first causes question, and it’s pretty clear why. The origins of so, so, so many counterintelligence operations start with SIGINT. This wasn’t some political hack job. This was a rising wave of information reaching various points in the IC and trickling UP the chain, not some top-down “Get Trump” operation. This wasn’t the ripshit “We gots us a dossier, let’s RIDE, cowboys!” fantasy being sold by the Trump right media and Gentry Breitbart.

    When you, your family your private attorney, your most senior (and junior) campaign staff, business partners, and associates are a**-deep in contacts with people tied to Russian organized crime, Russian intel, and Russian oligarchs (but I repeat myself), it’s going to show up. As we’ve discussed, the FBI, DOC, IC, and FISA court ain’t playing beanbag. They don’t just say, “WHOA, Trump’s a flaming dic*bag! Let’s subvert our oath and violate the law to screw him!”

    The Fox crowd uses the asymmetry of what the FBI/DOJ/OSC is forbidden to reveal (yet) to draw this lurid, stupid portrait for an evil Deep State conspiracy directed by Kenyan Muslim Sleeper Agent Obummer and Evil Sorceress Hillary the Child Cannibal for the credulous, the slow, and the wilfully mendacious who know better. With all the contacts, associations, meetings, business deals, money, and hard intel that the Russians were attacking our election that *caused* the attention to Trump, if you think the system should have sat quietly and done nothing, allow me to propose a gedankenexperiment. Substitute “Trump” for “Clinton” and “Russian” for “Muslim” (or “Chinese”) and tell me you wouldn’t want the FBI to *do it’s damn job*. I’ve said this from the very, very start. The IC has a royal flush, or damn near it.

    The fact that you haven’t seen it yet is evidence of discipline, not absence. All this show, and bluster, and hair-tearing flim-flam from Team Trump is their usual disservice to the rule of law.

    Steady on.

    • Yes. Of course. But they are extremely reluctant to use classified evidence in criminal trials. And the POTUS, Trump, has State secret privilege waiting in the wings. That could be a major-league donnybrook of a constitutional crisis. Nevertheless, you are almost certainly right about the origins of the counter-intelligence investigation. Personally, I favor CIPA trials for Manafort and Concord Management and Consulting.

      • Yes. Of course. But they are extremely reluctant to use classified evidence in criminal trials.

        Is that why we’re treated to indictments of Russian internet trolls?

        • The trial of Concord Management and Consulting will necessarily be a CIPA trial. Jeannie Rhee for the OSC will beat Dubelier like a drum with classified evidence. And The Russians will not be allowed to catch wind of one jot nor tittle of it.

          • Annie/Inga – I think the Russians are going to demand it be held in open court. It is going to be embarrassing. However, you can keep hoping. It may never get to trial the way things are going.

        • I agree, completely. The Kremlin had to have had a line of communication to the Russian attendees at the Trump Tower meeting. That line of communication could have been intercepted. Admiral Rogers put a search and hold order on all signal intelligence that might be related to the Russia investigation. That doesn’t necessarily mean that they have any. But it does mean that they’ve been sifting and combing through their vast archives looking for it since sometime around July of 2017 or thereabouts. If it’s in there, chances are they’ve found it by now.

    • “Kenyan Muslim Sleeper Agent Obummer and Evil Sorceress Hillary the Child Cannibal”

      ROTFLMAO

      Great comment, Thanks.

    • The fact that you haven’t seen it yet is evidence of discipline, not absence.

      Thanks for the precis of your fantasy life. It’s been an education.

            • This investigation has been ongoing since July of 2016. That’s 22 months. It has produced…bupkis. I’m not the one engaging in wishful thinking.

              • It has produced…bupkis.

                This is either a huge lie told by millions or a delusion shared by millions. There is no other option. So you choose which group you want to belong to. The former would suggest a character disorder, the latter a mental health issue. Neither is particularly good.

                • Sorry, pumpkin. You’ve had indictments of people on contrived process crimes, indictments of Russian internet trolls, and indictments of Paul Manafort on matters irrelevant to the campaign (which other units of the Justice department had had on the back burner for years). The only huge lies being told are the ones you are telling yourself.

          • Insufferable May 21, 2018 at 11:14 AM
            “People smarter than you have figured out this is a sinking ship and they’re heading for the lifeboats.”

            Excellent essay by Lazare. Thanks for calling attention to it. I’ll offer comments on only two of its points:

            “FBI ‘Perplexed”
            “One could go on. But not only does the Times article get the details wrong, it paints the big picture in misleading tones as well. It says that the FBI was ‘perplexed’ by such Trump antics as calling on Russia to release still more Clinton emails after WikiLeaks went public with its disclosure.”

            As this is obviously not the public behavior of someone privy to information that the DNC emails had been hacked to help his presidential campaign, it could have “perplexed” the FBI only because they just knew in their little Deep State hearts that Trump had colluded with the Rooskies to deny Hillary the Prize; and

            “Andrew McCarthy, who has done a masterful job of reconstructing the sequence, notes that in late July 2016, Page mentioned an article she had come across on a liberal web site discussing Trump’s alleged Russia ties. Strzok texted back that he’s ‘partial to any women [sic] sending articles about [how?] nasty the Russians are.’ Page replied that the Russians ‘are probably the worst. Very little I finding redeeming about this. Even in history. Couple of good writers and artists I guess.’ Strzok heartily agreed: ‘f***ing conniving cheating savages. At statecraft, athletics, you name it. I’m glad I’m on Team USA.’ ”

            If this little tete a tete is at all representative of the intellectual caliber of these two FBI agents, one must sincerelyhope that they barely squeeked by in the personnel screening process.

            I have many serious issues with Trump, but they hardly blind me to the games, contra Trump, of the “Intelligence Community.”

  8. The list of these malformations of the legal system is depressing, and given their power, it is hard to see how to reform. But the Mueller investigation and the reactions to it hold out at least a ray of hope.

    http://thefederalist.com/2018/05/21/9-ways-muellers-investigation-epitomizes-legal-system-crisis/?utm_source=The+Federalist+List&utm_campaign=dedb92f182-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-dedb92f182-79248369

  9. Wouldn’t the rules of evidence have to sort through what is not fruits of the poisonous tree before an indictment or impeachment process would move forward?

  10. I somewhat disagree with JT’s analysis, mostly due to the context of the situation.
    The question(s) is “What can Trump be impeached for and what can he be indicted for?”
    There are only a few things he can be impeached for, all relating to his duties as president.
    But, he could be indicted for any number of things related to, or completely unrelated to his duties as president.
    As far as impeachment goes, there is very little to legitimately charge him with, and such an impeachment would be seen for what it is, a political workaround to get him removed from office, not something that he did wrong.
    But for indictment, the sky’s the limit, and I am sure any prosecutor given the resources that Mueller has can find *something* he has done illegal in his life — as they can likely find something that anyone has done illegal if you just look hard enough. Three felonies a day is a whole book on this topic.
    So, the logic that JT puts forth in his unintended consequences scenario is flawed.
    It is unlikely that an impeachment will result in conviction to remove this president, given the current alleged malfeasances, and thus it is equally unlikely that Trump would be looking at an indictment now.
    Further, by the time he may not be president, whatever might have been indicted for now, will be beyond the statute of limitations.

    • Mueller got an order to suspend the statute of limitations on Manafort and Gates while the OSC was waiting for Cyprus to comply with a request for documents from the bank Manafort and Gates used.

    • Are you sure that grounds for impeachment of a President must be related to his duties as President?
      My understanding is that crimes committed prior to assuming office may also be grounds for impeachment.

      • wildbill99 – impeachment is a political action and Congress can do what it wants as long as it conforms to the Constitution.

        • Indeed. And the Constitution does not specify that the “high crimes and misdemeanors” be committed while in office.

  11. Mueller needs to hurry and take Trump out of office so that Hillary can have her own ticker tape victory parade ala Nicolas Maduro. Then we will all lose 30 lbs and be a flattened nation. But Hillary will be fighting for us and that makes all Americans feel so much better

        • wildbill99 – Hillary was kind enough to insert herself into the mess again by wearing a Russian fur hat at Harvard where she was getting an award.

          • And it looked so good on her.

            It looked Uranium-ish

            but there I go again, changing the subject. The subject was Hillary lost the election to a very wealthy creton, though clearly less moronic than her, and she was going to aceept the election results and bake cookies for evermore

            Whats the subject again?

  12. If Trump feels safer than he actually is, then Trump might act in a rasher, more dangerous manner than he otherwise would have acted had he felt exactly as threatened as he actually is. If Giuliani is telling Trump that he can’t be indicted and that the special counsel’s investigation will be wrapped up by September of this year if Trump agrees to an interview with Mueller, then Trump might feel just safe enough to rashly, perhaps precipitously agree to an interview with Mueller.

    The last I read, Turley still favors Trump agreeing to an interview with Mueller on the theory that invoking The Fifth during Grand Jury testimony would be politically costlier than the legal jeopardy of answering Mueller’s questions. I suspect that Turley might be wrong about Trump’s ability to give defensible answers to Mueller’s questions even when aided by defense counsel in the room with Trump. I suspect so because I further dare to presume that Trump knows far more about his own legal jeopardy than Turley knows from the public record of Mueller’s court filings.

    Just as Turley garbled Occam’s Razor the other day, so, too, might Turley be currently garbling the so-called law of unintended consequences.

    • The evidence bar for the successful impeachment of a President is extremely high, and for good reasons.
      We’re a long ways from that and IMHO we won’t ever get there.

      Of course if Trump testifies that may change…

      • I agree almost but not quite completely. The bar should be high. But Mueller might get there–maybe.

        • In time we shall know, before that it’s all conjecture. I recommend patience, there being no other option.

      • This is fascinating. Do you have a mole in Mueller’s investigative team? Jonathan Turley seems to have. The fact that there are indictments and admission of guilt in connection to lying about conversations with Russians- including Kislyak seems a little to close for comfort. Not to mention that Flynn and Papadopoulos have agreed to cooperate. Then there’s Don jr and his insatiable desire to conspire with any foreigner bearing emoluments, including professed help to win the election.Hmm… Turley is very confident in his assertion based upon, well, he doesn’t know.

        • And I nearly forgot. Gates is cooperating too. Do you really think that Manafort was not conspiring with his employers despite all evidence to the contrary? He was offering a blow by blow account of the campaign lowdown to Deripaska. Jeez, I tend to think they were up to their necks in a bid to defraud America; to subvert American democracy and generally win at any cost- and that would include employing a foreign company to spy upon and target American voters. The company- Cambridge Analytica – that Bannon set up, no less.

        • re the Mueller investigation:“In time we shall know, before that it’s all conjecture”

          Perhaps you missed that?

          You are aware that 2/3rds of a Republican Senate will be necessary for a conviction, I assume.

        • There is no conspiracy delineated in their plea. Their state’s evidence is inconsequential.

          Then there’s Don jr and his insatiable desire to conspire with any foreigner bearing emoluments, including professed help to win the election.Hmm…

          Cute that you’ve conflated two delusions partisan Democrats have been harboring.

  13. You are assuming the mid-terms are going to go horribly wrong and the Democrats are going to swing the House by enough to impeach the President. Right now the President is popular (relatively speaking), has been keeping many of his promises and the generic poll has the Democrats up +4 (with a margin of error of 3) and it is May.

  14. This is onanism. The President will not be impeached and any indictment is likely to be as contrived and silly as the indictments Mueller has obtained to date.

    • Yes, impeachment proceedings would die in congress – the numbers too impeach just aint there. And so much reasonable doubt/evidence of abuse of process to present to a jury and/or to present to judge for motion to dismiss. This is a terrifying reality for lefty loons who have no game aside from vague rumor used to start special counsel process and delusional belief that this would take him down.

  15. Use the US Marshall Service/JAG & Arrest them all Trump, ship the Traitors to Gitmo for a fair/fast trial.

    “Obama’s Campaign Paid $972,000 To Law Firm That Secretly Paid Fusion GPS In 2016
    Since April of 2016, Obama’s campaign organization has paid nearly a million dollars to the law firm that funneled money to Fusion GPS to compile a dossier of unverified allegations against Donald Trump.”

    http://thefederalist.com/2017/10/29/obamas-campaign-gave-972000-law-firm-funneled-money-fusion-gps/

  16. Is not impeachment not a form of recall wherein the delegates of the several states in effect recall the President and or Vice President

    and since there is a form of that for the Congress to rid themselves of a sitting member in either house and for SCOTUS Justices to be removed that would include 435 plus 100 plus 9 plus 2 en total or 546????

    But since Term Limits except for the two Presidential postions has been rejected by either SCOTUS (for the legislature) and by the Constitution for the Supremes. and since Recall of any of those 546 has been denied by the court one must examine the two recall and Term Limits as usable versions are

    those two methods unusable or usable

    those two methods as now barred from use by the court a proper interpretation and

    how or why are they materially, objectively and legally any different than impeachment which is just another name for indictment or recall or even the use of term limits?

    Furthermore why should those who have openly spoken against the Constitution as meaningful or valid and for another form of government and therefore violated their oath office not be similarly charged and ejected. Does that not constitute a need for criminal indictment and prosecution?

    Seems like most of this is just a case of wanting to have it both ways for the convenience of a few who are openly inviolation themselves.

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

        Giuliani’s claim appears to be equivalent to stating that “there’s never a first time for anything.” I’m pretty sure that can’t be right.

        • Ted Olson had this to say

          https://www.weeklystandard.com/theodore-b-olson/mueller-v-trump
          “….it is unlikely that he can be forced to give grand jury testimony simply to satisfy Mueller’s curiosity and submit to a potential perjury trap. He could, in short, put Mueller to his proof—make Mueller show that the president’s testimony was necessary to prosecute someone else. And that such evidence could not be obtained elsewhere. That is a high bar, indeed, and one that at this point Mueller has not shown he would be able to surmount.”

          For now this is all main screed media making money at the expense of all those minorities whom they said needed Hillary’s help. That was then, Thi$ is now the new new$

          To quote the sexually frustrated NII, “this is onanism”

        • Reuters is reporting that Mueller weeks ago impaneled a grand jury to investigate charges of collusion between Russia and the Trump campaign, and the grand jury has issued subpoenas in connection with a June 2016 meeting that included Trump’s son, son-in-law, and a Russian lawyer in June 2016. To whom those subpoenas were issued and the information or testimony requested, as well as what evidence has been presented to the grand jury up to this point, remains a secret, but the subpoenas can be viewed as a signal that the investigation is progressing and indictments may not be far behind.

          • Mueller impanelled the grand jury a week before the Reuters report dated August 3rd, 2017. So they’ve been at it for ten months thus far. Meanwhile, Ted Olson’s comments seem to hinge upon the distinction between Trump being a “subject” of the special counsel’s investigation versus a “target” of the investigation.

            If Mueller needs grand jury testimony from Trump in order to indict any or all of the attendees at the Trump Tower meeting, then Mueller probably could clear the “high bar” that Olson raised in his comment. The questions then would revolve around the service of the summons to Trump and the consequences–intended or unintended–to Trump of refusal to answer the summons.

            • Seriously though, if the basis for naming Trump as a subject, rather than a target, of the investigation is that a sitting President can’t be indicted, then on what grounds can a subject who can’t be indicted refuse to answer a grand jury summons??? Well . . . If it’s an unsettled question in the law whether a sitting president can be indicted, then . . . No. Actually. Bill Clinton testified before a grand jury while he was a sitting president. So there’s your precedent for that one, at least.

  17. There is no promise that Mueller won’t indict Trump. There is a statement by that he has made that promise. If he has committed a crime he should be indicted like any other human. A president isn’t above the law and we should never accept any claim that he or she is.

    • Agree JH – if Trump has actually committed a crime he should be indicted. As should all the others who have undermined the public’s faith in our justice system and thus far skated free with no repercussions.. This should be a non partisan issue

    • THen it boils down to does Meuller indict or does Mueller recommend such a move by the appropriate authority which is one house of Congress with trial by the other? Impeachment is Indictment same as any other Grand Jury would provide. Mueller acts simply as investigator and arresting officer. The Cop. He cannot also have the power of the Judiciary as well nor usurp the authority of the jury – the Congress..

      • Mueller can not indict.
        We can debate whether that is what the Constitutions says, but not what OLC has said TWICE.
        Mueller is bond to follow that direction, anything else would be unethical.

        While Turley is right that this is fundimentally a sequencing issue and he may be right that the constitution does not specify – though I think there is a serious issue because all executive power vests in the president and the president is not going to indict himself.

        Regardless Turley is also right that we prefer to see impeachment precede indictment.

        This is not about what is best for Trump, it is about what is best for the country.

        Further even if he is not impeached nothing precludes indictment after he leaves office.

  18. DOJ policy is “…that a sitting President is constitutionally immune from indictment and criminal prosecution.” Mueller has no authority to establish DOJ policy. The Attorney General must decide this issue of policy within the DOJ.
    _______________________________________

    A Sitting President’s Amenability to Indictment and Criminal Prosecution

    The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

    October 16, 2000
    MEMORANDUM FOR THE ATTORNEY GENERAL

    III.

    In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

    • There is no such constitutional immunity! DOJ Policy Memos have NO power to engraft such immunity on to the Constitution or to Amend it to include one.

      • THe second part of unintended consequences is a backlash of protest in the form of votes from the source of power in a Republic the citizens in their rule as the ultimate jury. Which should not exclude recall a form of term limits.

      • Hey, brainiac. Don’t tell me. Tell the DOJ. It generated the memo. Wow! You’re a quick study, huh? Once again, Mueller has NO, as in ZERO, authority to violate, set or modify DOJ policy. Policy is established and/or modified by the Attorney General.

        Mueller and/or Rosenstein may not violate DOJ policy.

        Mueller and/or Rosenstein may not indict the sitting President.

        Sessions may.

      • There is no such constitutional immunity!

        Leon Jaworski’s staff persuaded a grand jury to name Richard Nixon an unindicted co-conspirator because Jaworski was persuaded that it was unconstitutional to indict a sitting president.

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