indictment

Yes, a sitting president can be indicted for criminal misconduct (Updated)

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Lazy media villagers and cable news jockeys — lookin’ at you Chuck Todd –rotely recite that the Office of Legal Counsel has legal memorandums which say that a sitting president cannot be indicted, “so whatcha gonna do” about Donald Trump?

This is an unsettled question of law.  If you actually read the lengthy OLC memos in full, you will find that the OLC first found that a sitting president can be indicted irrespective of any impeachment proceeding by law, but then made a policy argument against the Department of Justice from doing so.

In contrast, independent counsels Leon Jaworski and Kenneth Star both prepared legal memorandums which found that a grand jury could indict a sitting president, and Ken Starr even had an indictment prepared, which he decided not to pursue (see below the fold).

With Republicans in Congress aiding and abetting obstruction of justice by Donald Trump and expressing their willingness to abdicate their constitutionally prescribed duty to permit Trump’s ongoing criminal misconduct to continue unimpaired by Congress, GOP shrugs at Trump’s involvement in Cohen crimes, and ‘I Don’t Care’: GOP Senators Dismiss Allegations Against Trump, effectively rendering the impeachment clause remedy a nullity (i.e., jury nullification), the indictment of Donald Trump by Robert Mueller for his criminal misconduct may be necessary in order to obtain justice.

44 former U.S. Senators are so concerned about Trump’s criminal misconduct and Senate Republicans willingness to abdicate their responsibilities that they are literally pleading with senators to do their constitutionally prescribed duty in an extraordinary letter. We are former senators. The Senate has long stood in defense of democracy — and must again.

Harvard law professor Laurence Tribe was a guest on The Last Word with Lawrence O’Donnell to explain that there is nothing in the Constitution that prevents the indictment of a sitting president. Video Link.

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The constitutional crisis coming after Election Day

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This is really information voters should have available before Election Day in order to make an informed decision, but due to long-standing Justice Department custom, prosecutors are generally advised to avoid public disclosure of investigative steps involving a candidate for office or related to election matters within 60 days of an election.

The Justice Department’s Inspector General recently noted in a report about the 2016 election: “The 60-Day Rule is not written or described in any Department policy or regulation. Nevertheless, high-ranking Department and FBI officials acknowledged the existence of a general practice that informs Department decisions.” So here we are.

Bloomberg News reports today, Mueller Ready to Deliver Key Findings in His Trump Probe, Sources Say:

Special Counsel Robert Mueller is expected to issue findings on core aspects of his Russia probe soon after the November midterm elections as he faces intensifying pressure to produce more indictments or shut down his investigation, according to two U.S. officials.

Specifically, Mueller is close to rendering judgment on two of the most explosive aspects of his inquiry: whether there were clear incidents of collusion between Russia and Donald Trump’s 2016 campaign, and whether the president took any actions that constitute obstruction of justice, according to one of the officials, who asked not to be identified speaking about the investigation.

That doesn’t necessarily mean Mueller’s findings would be made public if he doesn’t secure unsealed indictments. The regulations governing Mueller’s probe stipulate that he can present his findings only to his boss, who is currently Deputy Attorney General Rod Rosenstein. The regulations give a special counsel’s supervisor some discretion in deciding what is relayed to Congress and what is publicly released.

The question of timing is critical. Mueller’s work won’t be concluded ahead of the Nov. 6 midterm elections, when Democrats hope to take control of the House and end Trump’s one-party hold on Washington.

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Trump’s rose goes to appellate court judge Brett M. Kavanaugh

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“Dear Leader” in his reality TV show “Supreme Court Nominee” rose ceremony gave his rose to a white male Washington “swamp” insider,  District of Columbia Court of Appeals Judge Brett M. Kavanaugh, a man who is on record having said the words that Donald Trump most wants to hear: in 2009 Kavanaugh said indicting a sitting president “would ill serve the public interest, especially in times of financial or national-security crisis,” and later wrote that “Congress should pass laws that would protect a president from civil and criminal lawsuits until they are out of office.”

In other words, Trump is putting his thumb on the scales of justice to protect himself from the Special Counsel’s Russia investigation, an obvious conflict of interest that undermines the legitimacy of the Supreme Court. Has Trump extracted a loyalty oath from Judge Kavanaugh?

No senator should enable this. Period.

The Los Angeles Times has a good backgrounder on Judge Kavanagh. Brett Kavanaugh, a Washington veteran, has inside track to a Supreme Court nomination:

Judge Brett M. Kavanaugh, a Washington veteran with a reliably conservative record, has the inside track for the Supreme Court nomination to be announced Monday evening by President Trump.

The federal appeals court judge, 53, has lived and worked nearly his entire career in Washington, including in past Republican administrations, and he is well-known and respected by the conservative lawyers in the Federalist Society and in the White House counsel’s office.

But some activists on the right have rallied against him, citing his close ties to the Republican establishment and several court rulings that they believe did not go far enough in a conservative direction. [Will they fall silent now?]

Kavanaugh is a graduate of Yale University and Yale Law School, making him the only finalist for the nomination with an Ivy League education. Last year, Trump said he was drawn to his first appointee, Justice Neil M. Gorsuch, because he had degrees from Columbia, Harvard and Oxford.

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Analysis of Trump lawyers’ defense memo (shorter version: It’s all B.S.)

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When former U.S. President Richard Nixon sat down for an interview with British journalist David Frost in 1977, Nixon asserted a broad interpretation of executive authority:

Screen Shot 2018-06-03 at 6.22.09 AM Frost:…Would you say that there are certain situations – and the Huston Plan was one of them – where the president can decide that it’s in the best interests of the nation, and do something illegal?

Nixon: Well, when the president does it, that means it is not illegal.

Frost: By definition.

Nixon: Exactly, exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.

You should note the context: If the president orders someone in the federal government to do something for a national security or domestic security reason, those individuals carrying out the president’s order “are not violating the law.”

Donald Trump and his shyster lawyers have taken Nixon’s assertion “[W]hen the president does it, that means it is not illegal,” and extended this to a blanket assertion of presidential immunity from (1) being subpoenaed in a criminal investigation, and (2) being indicted for criminal activity while president. It is a novel theory that the president is above the law, and a bold rejection of the bedrock foundational American principles that we are a nation of laws and that no man is above the law.

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