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Don't Believe the Myth — Trump Could Absolutely Be Indicted

August 22, 2018 in Blogs

By Rebecca Buckwalter-Poza, Daily Kos

There’s no line in the Constitution, case from the Supreme Court or federal law to say that the president can’t be indicted.

With Michael Cohen’s very public incrimination of the president, the word of the week is “indictment.” Whatever your angle on indicting the president, there’s an oped—or article—to argue it. But that’s all that’s available: argumentation. And despite the attempt to make the dueling positions seem well-matched, there’s a clear winner: Trump can be indicted.

There’s no line in the Constitution, case from the Supreme Court, or federal law to say that the president can’t be indicted. Rather, the closest we’ve gotten from the Supreme Court—Clinton v. Jones, in 1997—was a unanimous vote that the president can be sued and subject to a civil trial while in office. The justices found the potential disruption to the presidency wasn’t unconstitutionally burdensome. Nor would it be in the case of a criminal trial.

Like any other unresolved legal issue, it would have to be decided by the courts: Prosecutors would have to seek an indictment, then battle the inevitable challenge to the indictment. And, as former solicitor general Walter Dellinger has pointed out, indicting the president is not the same as putting the president on trial—it just preserves the statute of limitations. When legislators behave ethically, one would also think that an indictment would count as strong evidence of unsuitability, grounds for impeachment. 

The only way to force that legal determination is, well, to indict. Though it’s more than justified, per Cohen’s statement confirming Trump directed him to violate campaign finance law, a federal indictment is unlikely. For one thing, DOJ’s got a history of opposing presidential indictments and DOJ gets last say. For another, special counsel Robert Mueller isn’t Kenneth Starr; he couldn’t go rogue even if he wanted to.

DOJ has consistently taken the position that the president can’t be indicted and prosecuted. In 1973, amidst Watergate, the Office of Legal Counsel determined that impeachment is the sole remedy for presidential misdeeds—even if the inability to indict and prosecute the president results in “a complete hiatus in criminal liability.” 

While a 1988 OLC memo concluded that …read more


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