Thursday, August 23, 2018

Can Trump Be Indicted?

Michael Cohen, President Trump's former lawyer, implicated Trump in campaign finance violations. NPR's Ailsa Chang speaks with lawyer Philip Lacovara about whether sitting presidents can be indicted in these situations.
Now when a lawyer admits his client directed him to commit a crime and then pleads guilty to that crime, the client stands a good chance of being indicted himself, unless, of course, that client is now the president of the United States.
With us now to tease all of this out is Philip Allen Lacovara. He was counsel to the special prosecutors who investigated Watergate, and he argued the Nixon tapes case before the Supreme Court. Welcome.
CHANG: So let me just begin by asking you what exactly is the Justice Department's position on indicting a sitting president?
LACOVARA: The Justice Department has taken the position twice that the president is not subject to indictment while in office and that no criminal charges can proceed against him unless he's either removed from office by impeachment or has served out his term.
CHANG: And just to be clear, as a constitutional matter, it's still unresolved whether a sitting president can be indicted, right? This is just a choice the Justice Department made.
LACOVARA: That's right. In the Watergate investigation, we examined that issue quite carefully and reached the conclusion that there is no constitutional bar to indicting a sitting president. It's a matter of discretion whether to file such charges. But the issue is still unresolved because, neither in Watergate, nor in the Clinton years, did any prosecutors press the issue.
CHANG: So why did the Justice Department decide to adopt this categorical policy - not leave it to the department's discretion, but just decide, in all cases, the president - a sitting president should never be indicted?
LACOVARA: They have two basic themes. One is a kind of abstract constitutional theory. Indeed, it's one that the current Supreme Court nominee Brett Kavanaugh seems to accept, and that's the so-called unitary executive theory.
CHANG: Tease that out for me.
LACOVARA: It's the notion that all law enforcement resides in the president and that everybody else in the executive branch, including prosecutors, is essentially irrelevant. And the president, therefore, would in effect be prosecuting himself. And they think that that's a bizarre conundrum which the Constitution shouldn't allow.
CHANG: A very expansive view of executive power.
LACOVARA: It is. The other theory is a practical one, and that is that it would be too much of a distraction from the president's important duties as chief executive to force him to defend himself in court.
That argument the Justice Department continues to adhere to, even though in the Paula Jones case, the Supreme Court unanimously rejected the exact same argument when President Clinton argued that he shouldn't be allowed to be dragged into court.
CHANG: OK. So while a president is in office, it sounds like it's department policy not to indict him or her. But once the president leaves office, all bets are off.
LACOVARA: All bets are off, indeed. There's only one practical problem that might arise, and that's the statute of limitations.
CHANG: Right.
LACOVARA: For most offenses - federal offenses, there's a five-year statute of limitations. President Trump has already announced that he is running for re-election in 2020. And if he were to be re-elected, his term would not expire until January of 2025, by which time any responsibility for things that he did during the campaign or any obstruction of justice that he may have committed during or preceding the Mueller investigation would be time-barred. And so he would escape culpability entirely.
CHANG: So it's clear that you have thought a lot about this. What do you think? How should transgressions by a sitting president be handled during his presidency?
LACOVARA: For me, the bottom line, as somebody who's been in and around government for five decades, even the president is subject to the law and is equal under the law. And there was an irony in Watergate that President Nixon, but Nixon alone, was pardoned when his co-conspirators all went to prison.
We have, at the moment, the same irony today with Michael Cohen pleading guilty to committing a federal felony. It seems to me a matter of questionable public policy to give the primary malefactor immunity while the subordinate, Michael Cohen, is facing a prison sentence of between four and five years.
CHANG: Why should Cohen take the fall if it's true that he was directed by the president himself to commit the crime?
LACOVARA: Yeah. And I think the bottom line here is that the framers of our Constitution knew how to confer immunities when they wanted to, and they said that members of Congress have a short-term immunity while they're attending legislative sessions. They didn't do that with respect to a president.
The whole purpose of the Revolution and our Constitution was to treat officials of our government as different from the royal in England. And I think they would be astonished at the notion today that the president is somehow immune from criminal prosecution if he violates the norms that apply to everyone else.
CHANG: Philip Allen Lacovara served as counsel to the Watergate special prosecutors. Thank you very much.
LACOVARA: You're very welcome.


  1. “…There is a debate in the legal community about the prohibition on indicting a sitting president, but it seems unlikely Mueller would push for an indictment as a direct result of his investigation.

    “The more likely threat to Trump -- and this is as true following the Cohen plea deal and Paul Manafort's conviction as it was a week ago -- is the possibility that the House takes up articles of impeachment against him.

    “Take a step back: This case has always moved on two related but not identical tracks. There is the legal end of things, which has led to a series of criminal charges out of the Mueller team and its most high-profile conviction in the form of Trump's former campaign chairman, Manafort, on Tuesday. Then there is the political track, which has to date taken a back seat to the legal jockeying but is the far more dangerous path for Trump.

    “At some point in the (relatively?) near future, Mueller and his team will release the findings of their probe into Russian interference in the 2016 election, whether any collusion between the Russians and the Trump campaign existed and whether Trump obstructed justice by getting in the way of the investigation.

    “Is it possible that Mueller will, contra Giuliani, push for Trump to be indicted? I mean, anything is possible. But what's much more likely is that Mueller -- in deference to established Justice Department protocols --will simply let the report speak for itself.

    “Assuming Mueller does that, the political track will be the only way in which Trump could be punished in any meaningful way. To date, national Democrats have been reluctant to talk too much about possible impeachment proceedings against Trump -- leaving that sort of talk to a small number of ultra-liberal members of the party.

    “It remains to be seen whether Tuesday's events change the minds of people like House Minority Leader Nancy Pelosi. But at least one somewhat unlikely source believes that the Manafort conviction on eight counts of financial crimes and the Cohen plea agreement have put impeachment very much on the ballot in November.

    "’Today clarifies that November is a referendum on impeachment -- an up or down vote,’ Steve Bannon, Trump's one-time senior strategist told Bloomberg's Jennifer Jacobs on Tuesday night. ‘Every Trump supporter needs to get with the program.’

    “That's a startling statement by Bannon, although he may not be wrong about it. If Democrats win back control of the House in the coming midterm election -- and they are favored to do so -- it's hard to imagine calls for impeachment from their party's base wouldn't grow louder after the events of Tuesday.

    “The wild card, of course, is what Mueller's report ultimately finds. If it fully exonerates Trump, a move toward impeachment would likely be cast as a pure political ploy by Democrats. If it doesn't clear Trump, however, then Democrats will likely seriously consider the idea of impeachment. The question at that point is whether any Republicans would join them.

    “Tuesday changed a lot of things in political Washington. One thing it didn't change is that the real threat to Donald Trump's presidency in all of this isn't indictment. It's impeachment” (CNN).

  2. Set Trump aside for a moment. Do you really want an non-elected person to have the power to take out the elected president of the United States? Regardless of your feelings about Trump, this seems like a very dangerous precedent to set. I think that's why the Framers designed a specific process to take out the president - it should only be done by other elected officials - that's called checks and balances.

    In any case, if/when Trump is indicted/impeached/otherwise removed from office, what's your Plan B? Are you really any more comfortable with "President Pence" than President Trump? Frankly, the former gives me far more nightmares than the latter for any number of reasons. The very fact that Trump is so disorganized and reactive means he's not focused. Pence is. Laser. And Pence would have the "legitimacy" to do what Trump can't, being "illegitimate". I'll take illegitimate and batsh*t crazy over legitimate and focused any day.

    1. Of course, I don’t want Trump or Pence as a president. Pence would bring a whole new set of problems to the White House: his dangerous supremacist, evangelical bigotry; his obsessive, hypocritical piety; his anti-feminism; his anti-LGBTQ views; his anti-Muslim beliefs; his anti-government ideology; his connection to the Koch Brothers, Americans for Prosperity and the Heritage Foundation; his belief that evolution is just a theory and that global warming is a myth; his Religious Freedom Restoration Act; his prevarication, complicity and sycophancy… The list is endless. We are doomed either way. Anyone that Trump appointed should be illegitimate.

  3. "There are problems with impeaching Donald Trump. A big one is the holy terror waiting in the wings. That would be Mike Pence, who mirrors the boss more than you realize. He’s also self-infatuated. Also a bigot. Also a liar. Also cruel. To that brimming potpourri he adds two ingredients that Trump doesn’t genuinely possess: the conviction that he’s on a mission from God and a determination to mold the entire nation in the shape of his own faith, a regressive, repressive version of Christianity. Trade Trump for Pence and you go from kleptocracy to theocracy..." (NY Times).