SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

As the Special Counsel’s investigation picks up steam, with the indictments of Paul Manafort and Rick Gates already filed and the guilty pleas with now cooperating witnesses Michael Flynn and George Papadopoulis publicly disclosed, Mueller’s team has amassed a wealth of information regarding President’s heavy-handed attempts to obstruct justice.

The avalanche of damning evidence of Trump’s obstruction of justice started with the firing of FBI Director James Comey on May 9, 2017 after direct attempts by Trump failed to extract from Comey a pledge of loyalty and a commitment to drop the FBI’s investigation of his former National Security Advisor Michael Flynn. There is also evidence that Trump pressured Director of National Intelligence Dan Coats to urge Comey to end his investigation into Flynn and his Russian connections, which was eerily reminiscent of former President Nixon’s attempt to use the CIA to derail the FBI investigation into Watergate and which ended up being included as part of the Articles of Impeachment against Nixon.

Despite the White House’s initial disinformation campaign to persuade the public that Comey was fired for other legitimate concerns, Trump could not resist telling NBC’s Lester Holt during a live interview on May 11, 2017 — two days after the firing — that Comey’s firing was due to “the Russia thing.”

If there was any doubt whatsoever that Trump fired Comey in order to try to quash the FBI’s and the Justice Department’s investigation of possible collusion between the Trump Campaign and Russian intelligence operatives to interfere with the 2016 election and to swing it in Trump’s direction, those doubts were dispelled when Trump told Russian Ambassador Sergey Kislyak and Sergey Lavrov, the Russian Foreign Minister, in the Oval Office on May 10, 2017,  the day after the firing of the FBI Director, that he had discharged “Nut Job” Comey in order to take “pressure” off the Russian investigation. Only Trump, the two Russian officials, and a Russian news representative were permitted to be in the Oval Office during this critical discussion, which also involved the disclosure of highly sensitive and classified information that the U.S. had obtained from Israeli intelligence about the Islamic State.

Two months before he fired Comey, Trump ordered White House Counsel Don McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation, saying that he needed Sessions to provide active oversight over the Russia investigation in order to “protect him” and “safeguard” him. Mueller can persuasively argue that the only possible reason why Trump would be so desperate for Sessions to “protect” him was that Trump had something to hide from the federal prosecutors, and that he was desperately afraid that the investigation would lead into troubling areas regarding the underlying “collusion” investigation, or into collateral areas such as the Trump Organization’s heavy reliance on Russian money of suspicious origin in possible violation of U.S. money laundering laws.

After Comey was fired and replaced by Deputy FBI Director Andrew McCabe, who corroborated Comey’s testimony regarding Trump’s repeated requests for a “loyalty oath” from Comey, Trump pressured FBI Director Christopher Wray to fire McCabe, causing Wray to threaten to resign, according to news reports. Trump continued to berate McCabe in a barrage of twitter rants, until McCabe finally capitulated and announced his abrupt and early retirement from the FBI.

Trump is also reported to have ordered White House Counsel McGahn to fire Special Counsel Mueller, only to back down – at least for the time being- when McGahn threatened to resign.

The question being pondered by the Special Counsel’s office is what to do with all of this evidence of criminal obstruction of justice by Trump himself. Although the Justice Department issued two legal opinions in 1973 and 2000 during the investigations of Presidents Nixon and Clinton, concluding that a sitting President could not be indicted, there is nothing in the U.S. Constitution itself that explicitly says that. All that the Constitution says about the prosecution of the President is that, in Article I, Section 3, he (or she) is subject to prosecution after being impeached by the House of Representatives, and then convicted and removed from office by a two-thirds vote of the Senate.[1] It is silent on the issue of whether a President can be indicted before being impeached, or whether the two proceedings can take place simultaneously.

Legal memos prepared in 1973 for the Watergate Special Prosecutor and for Kenneth W. Starr, the Independent Counsel investigating allegations against President Clinton, reached the conclusion that a sitting President could be indicted if the evidence warranted it, which put both of these special federal prosecutors at odds with official Department of Justice policy.

Special Counsel Mueller, in consultation with Deputy Attorney Rosenstein, may well decide that the evidence of President Trump’s violations of the criminal obstruction of justice statutes is so compelling that the Grand Jury should be asked to return an indictment against him. President Trump’s lawyers will make an inevitable motion to dismiss the indictment on constitutional grounds, and that question will then finally have to be decided by the U.S. Supreme Court.

In the alternative, if the Special Counsel merely ask the Grand Jury to issue a Report laying out the evidence against President Trump, or name President Trump as an unindicted co-conspirator in an Obstruction of Justice indictment, then they will be violating the sacred principle that “No man is above the law,” even a sitting President. Passing the buck to Congress to consider impeachment of the president is not a good option, since impeachment is, at its core, a political decision as to whether a sitting president who has demonstrated that he is unfit to fulfill the duties of the office should be allowed to complete his term or not. That decision (whether to impeach or not) may have little or nothing to do with the issue of whether a president has violated the criminal laws, and whether he should be prosecuted for violations of those laws “without fear or favor,” just like every other citizen.

[1] Article 1, Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”