Russia Probe Indictment Debated

PUBLISHED: 11:11 PM 2 Feb 2018
UPDATED: 3:51 AM 3 Feb 2018

Lawyers Speculate On Russian Probe, Possible Indictment Would Cause Crisis

The lawyers believe Mueller might go ahead even knowing it wouldn’t survive the court.

IF federally-appointed Robert Mueller were to attempt to indict the President, it would cause a constitutional crisis, and likely would have no impact other than to besmirch the President's character. As a general rule, federal organizations cannot indict the president; only Congress and the Senate can do that.

The probe into alleged Trump-Russia collusion has been investigating claims for months, but they continue to not produce anything of value.  The biggest victory they’ve had thus so far is two perjury convictions and convicting a lawyer for conduct not related to Donald Trump’s campaign.

However, two attorneys who have worked with special counsel on the Mueller investigation suggest that they have enough to indict President Donald Trump.

One lawyer even suggested that Mueller could move to charge the President of the United States as early as spring.

These lawyers, who allegedly work with clients involved in the Russian probe, claim that they think Mueller has enough to make a case against the President and to successfully get an indictment.

The indictment would be for obstruction of justice, not for any actual finding of collusion between President Donald Trump’s campaign and Russia, its representatives, or its agents.

Though the pair of lawyers never make it clear what they mean by ‘obstruction’ that President Trump may have perpetrated, it is likely they are talking about discussions where the President talked about his desire to fire Mueller, McCabe, and other FBI appointees.

However, that presents a problem; no obstruction actually occurred.  Mueller hasn’t been fired, McCabe wasn’t fired for the case, and there’s nothing he’s done that has come to light in public that really amounts to obstruction.  Wishing that he could fire someone is not actually firing them, after all.

The vast majority of lawyers, including some of the best lawyers in the nation, agree that Donald Trump has yet to do anything that rises to the level of illegal conduct.  Still, one of the lawyers said that if he was a betting man, he’d bet against President Trump.

Remember, an indictment is not a conviction; indictments simply represent that it is believed there is enough evidence to raise a question about whether someone is guilty or not, enough evidence to take the case to an actual trial.

Of course, even if the Mueller investigation attempted to bring charges against the President, there are still issues about whether or not a federal prosecutor can bring charges against a sitting president.

There exists no legal precedent for indicting a sitting president, after all, and the entirety of American jurisprudence on the topic consists of two memos; one from 1973, and the other from 2000.

Both memos agree that the indictment of a sitting president is not a realistic option.

The memo written in 2000 was related to the Monica Lewinski scandal.  It was written by an Assistant Attorney General, and its overall conclusion was that the indictment of a sitting president by a federal investigator would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

In other words, the 2000 memo state that allowing federal prosecutors to indict sitting presidents would allow them to influence how he ran the federal government, and would be ripe for abuse.

The 1973 memo came to the same conclusion, and was used to prevent an indictment of Richard Nixon by federal prosecutors.

So, does this mean that President Donald Trump could not be held accountable for ‘obstruction’ of an investigation, or for any other crimes that he is alleged to have committed?

Not at all.  There is an established process for doing just that, in fact.

To indict a sitting president, they would simply have to hand over the findings of their investigation (and the evidence) to the legislature and its judiciary committees.  They are the ones who would draft, and then vote on, articles of impeachment.

Directly in opposition to these claims by the two lawyers with knowledge of the case, Donald Trump’s personal lawyer in this matter, John Dowd, has argued that because the constitution proclaims that the President is the top law enforcement officer, he cannot ‘obstruct’ an investigation.

Republican Representative Ken Buck, a former federal prosecutor and district attorney from Colorado, suggested that an indictment would not be likely to stand.

Buck further noted that ‘assessing the motives’ of President Donald Trump in firing James Comey would be “unique in the history of this country,” a valid point that needed making.

As with most executive positions, those who serve in those roles serve at the pleasure of the President of the United States.  When he is no longer pleased with their service, he can dismiss them, and the President need not give any reason for their dismissal.

An alternative solution is that Rosenstein could deny whatever indictment Mueller attempts to hand down, which would cause the House and Senate Judiciary Committees to receive the evidence.

The biggest point, however, is this; Mueller has failed to find any evidence of collusion, and rather than going for a serious conviction based on the claims behind the investigation, people who work with him believe he would resort to a weak indictment on the basis of ‘obstruction.’

That does not bode well for Mueller or for building confidence in his case.