Guiliani: Trump Could Have Shot Comey In Oval Office And Not Face Indictment

225px-rudy_giulianiAs I discussed on Morning Joe this morning, I was surprised when President Trump’s counsel Rudolf Giuliani declared in an interview that Trump could have shot James Comey in the Oval Office and not faced indictment under the Constitution.  For those of us who have long argued against sweeping immunity arguments in favor of presidents, this is the hypothetical that we often raise to prove our point.  It is bizarre to hear someone use it as an argument in favor of such immunity claims.  I have previously written that I believe a sitting president can be indicted.  Article II is not where the homicidal meets the constitutional.

Giuliani told HuffPost  that “In no case can he be subpoenaed or indicted. I don’t know how you can indict while he’s in office. No matter what it is.”  He added “If he shot James Comey, he’d be impeached the next day. Impeach him, and then you can do whatever you want to do to him.”

I have long disagreed with this argument and I will not repeat my prior points.  However, what is most notable is that Giuliani will rush to the worst possible hypothetical to make this point.  This is precisely why the claim of a sweeping, unstated immunity is so implausible and unworkable under Article II.  It is like a restaurant owner boasting to a health department inspector that under the regulations he could poison his patrons. It is hardly an ideal choice for persuasion.

As I discuss today in two columns, I believe Giuliani was right about the self-pardon issue while I believe he is mistaken about subpoenas.  Ironically, until he made this poor choice of hypotheticals, I thought he had improved his performance from his dreadful start a couple weeks ago on television.

To put it simply, in the long discussions of what to do with James Comey in 2016, a woodchipper was not one of those options.  In fairness to Giuliani, his point was not that Trump could not be indicted, but that he would have to be first impeached. There are good faith arguments on both sides of this issue, even though I have long found the arguments for immunity to be unsupported in the text and history of the Constitution.

 

23 thoughts on “Guiliani: Trump Could Have Shot Comey In Oval Office And Not Face Indictment”

  1. Giuliani is right – sort of though for reasons slightly different than you are arguing against.

    The framers did not envision a federal government with broad police powers. There is no general police power in the constitution.

    Our founders would not have put much thought to the abuse of the presidents power to pardon because they would not have considered murder to ever possibily be a federal charge.

    The vast increase in federal crimes – though itself of dubious constitutionality does not change this.

    Aside from the quirk that Washington DC is the only place in the country that is removed from state jurisdiction, if Trump ran Comey through a wood chipper – no presidential pardon could remove him from prosecution by state or local government.

    The moment you accept that the president’s excercise of pardon power can not itself be a lawless act, you have found that Nixon was legally correct – if the president does it, it is legal – atleast with respect to FEDERAL law.

    The only FEDERAL control on Trump is impeachment.

    The questions of process – indictiment and subpeona’s are implicated but not determined by the pardon power.

    Essentially it does not matter whether the president can be indicted or subpeonad.

    If a prosecutor has the power to indict the president – but the president can pardon himself making the indictment moot, the question of whether the president can or can not be indicted becomes a purely rhetorical question.

    The real constraint on the president is congress and the threat of impeachment.

    This is another reason that Mueller is unconstitutional.
    An investigation of the president must be one by congress.

  2. While the mutt is President you can’t indict him as that would hinder his job as President, the country would be threatened, ie., he would get distracted from his regular tweeting of drivel and maybe tweet some really dangerous stuff. So, first you have to get him off of the throne and replace him with the Veep or some other mutt; then the Presidency is filled and you can haul his fat orange a** off to the slammer. Then the entertainment would be great. Imagine, Trump out of the White House and duking it out, tweets and all, in the courts. Billions from around the world would be tuned in to catch the moment when he goes over the edge, “But, I am the President….”. Gavel slams down, ‘Order…haul his sorry a** out..’

  3. This is all so much legal BS. Impeach or indict, it doesn’t matter. If a President crosses over the line and he can’t be indicted but can be impeached then indicted; WTF, who cares, as long as the mutt is taken out of office and dealt with. So, if the same crime equals indictment but not for a President or impeachment and then indictment when the mutt is out of the White House, this is all just lawyers rubbing themselves raw.

  4. Rudy Giuliani insists he isn’t drinking before TV interviews

    “Rudy Giuliani is doing such a bang-up job as Donald Trump’s personal lawyer that there’s speculation he might be doing television interviews while drunk. MSNBC’s Joe Scarborough brought up the subject on the air, saying that Giuliani hadn’t gotten the Trump cabinet position he wanted because he was “falling asleep five minutes into meetings” and “drinking too much.””

    https://www.dailykos.com/stories/2018/5/9/1763091/-Rudy-Giuliani-insists-he-isn-t-drinking-before-TV-interviews

    An entirely plausible explanation of Rudy’s performance as Trump’s spokesman so far…

  5. I can just imagine if Eric Holder said that Obama could shoot Trey Gowdy in the White House and not faced indictment. I am certain that the trump supporters at this site would have said, hey, he’s the president, he can do what he wants! Right…..

    1. I can just imagine if…

      That pretty well sums up the entire resistance against President Trump, long before he was sworn in.

        1. And the evidence is proving it out day by day.

          For such a definitive statement, you should have absolutely no excuse for not listing that evidence right now.

          I’ll wait.

  6. Trump is and has been a national security threat, foreign and domestic. And while Rudy G plays court jester to King Trump, no one is laughing anymore on how far and insane this administration is willing to go to subvert the laws of this nation.

  7. Trump would be better off if he had the Secret Service shoot Comey and buried him somewhere in the East Lawn. 😉

  8. In fairness to Giuliani, his point was not that Trump could not be indicted, but that he would have to be first impeached.

    However, what is most notable is that Giuliani will rush to the worst possible hypothetical to make this point.

    To put it simply, in the long discussions of what to do with James Comey in 2016, a woodchipper was not one of those options.

    Apparently whatever Giuliani has is contagious. Maybe, just maybe hyperbole is a tool of media personalities masquerading as lawyers to better connect with their audience.

    Just saying.

    1. I’ll shed no tears for Al Whacky or any other American citizens so depraved as to fight on behalf of our nation’s enemies. Good riddance.

      1. WB99,

        You are not following our Constitution. The rule of law isn’t based on whether you “like” someone. It should apply equally to all persons, even people you may personally dislike.

        Part of the reason the US is failing as a nation is the unwilliness of citizens to stand firm for the Constituion. Instead citizens are picking who they think may be abused and treated unlawfully as well as picking and choosing which politician they feel may break the law with impunity.

        The disaster of this course of action should be clear by now.

        1. Al Whacky treasonously joined the enemies of our country and was properly and lawfully killed in due course.
          To Hell with the rat.

  9. We do not decide matters of fact relevant to criminal charges by a majority vote in the House of Representatives nor by a Two-Thirds vote in the Senate. We decide matters of fact relevant to criminal charges by conducting a Grand Jury inquiry.

    If, or when, Mueller subpoenas Trump, it will be as a material witness that Trump is subpoenaed. Giuliani, himself, has challenged Mueller to show that the Grand Jury cannot get matters of fact relevant to criminal charges in the special counsel’s investigation from any person other than Trump. But neither Trump nor Giuliani, nor even Congress, are the ones who get to decide whether the Grand Jury cannot get matters of fact relevant to criminal charges in the special counsel’s investigation from anyone else but Trump.

    A United States Court gets to decide that issue. And Trump can appeal the decision all the way to The Supreme Court. And then they get to decide that same issue. Meanwhile, it should be intuitively obvious even the most casual of observers that the Grand Jury cannot get matters of fact relevant to criminal charges in the special counsel’s investigation from any person other than Trump.

    The POTUS cannot be a fugitive from The Law that the POTUS has sworn to preserve, protect and defend.

      1. Jay,

        That is correct. It hasn’t been the view in the West Wing for quite some time. Nixon said something like, if the president does it, it is legal. Both Democratic and Republican presidents have been flouting the law for quite some time.

        The illegality present in the presidency runs very deep. It has been a disaster for the US and many other parts of the world.

  10. It would seem there is no will to impeach so Guiliani is riding this horse to his advantage. He can say whatever he likes and feels there is no repercussion that matters. None of them really care what the public thinks or feels, they feel empowered. I would go so far as to say they have a god complex, imho. Do they have justification for this? I don’t know, he was elected and so far a fair amount of people still support him and his team no matter how dire the situation seems to get.

    1. Good points, Nancy.

      Considering that a 2/3 majority of a Republican Senate would be needed to convict Trump in an impeachment the odds are long against that, IMHO.

      I never agreed on much with Andrew Breitbart , but he was dead on with “politics is downstream of culture”.

      Today we have a depraved culture and it is reflected in our politics.

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