will trump take chances in court or strike first against mueller?
Before an indictment can happen, though, Mueller must decide if he has the legal standing to do so. No president has been indicted before. Two have come close, Richard Nixon in 1973 and Bill Clinton in 2000. The Justice Department issued legal opinions both times that indictment of a sitting president is not a viable legal option. The latter opinion was clear that indictment of a sitting president;
“would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
There are some problems with the opinions and some experts who disagree.
The most critical flaw in both opinions is their authors. Justice Department officials appointed by, and in the employ of, the president they were defending, drafted both. Robert Bork, the author of the 1973 opinion, was appointed Solicitor General by President Richard Nixon. He became acting Attorney General after the “Saturday Night Massacre.” Bork stated in his autobiography that Nixon had promised him a Supreme Court appointment in return for firing Special Prosecutor Archibald Cox. Assistant Attorney General Randolph Moss, the author of the 2000 memo, was appointed by President Clinton. He was later named a Judge on the D.C. Circuit Court by President Obama. The memo sought to clarify the indictability of the President in the context of the Monica Lewinski scandal.
opinions are like attorneys; everyone has one
Not everyone agrees with those opinions.
“It is an open and substantial question whether an incumbent president is subject to indictment. “
In 1998, Ronald Rotunda, legal advisor to Independent Counsel Kenneth Starr in the Whitewater and Lewinski investigations argued,
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting President for serious criminal acts that are not part of, and are contrary to, the President’s official duties. In this country, no one, even President Clinton, is above the law.”
One of the most prominent dissenters is Hofstra University law professor Eric Freedman. He argues that granting sitting presidents immunity from prosecution was
“inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.”
the law changes, so do legal opinions
Despite his prior assertion, Ronald Rotunda said in an interview that Mueller could not indict Trump. Rotunda bases his change of opinion not on partisanship, but on the law. Mueller, he says, has a different legal standing than Starr held two decades ago. Kenneth Starr’s powers derived from the “independent counsel statute” That statute expired in 1999. Mueller, as a Special Counsel, has more limited powers, little more than any U.S. attorney. Also, while Starr had few restraints, Mueller and must follow all DOJ “rules, regulations, procedures, practices and policies.”
It is likely an attempt to indict President Trump would quickly come before the Supreme Court. The Nixon case was never adjudicated as Nixon resigned before the Court rendered a decision. Would Mueller make the same arguments used in the past, or would he take a new angle? Could he argue that Congress is not only corrupt but complicit, rendering impeachment impractical as a remedy? Punxatawny Phil called for six more weeks of winter today. Based on these indictment rumors, President Trump might be in no hurry for spring to arrive.