Everything having to do with President Trump and Russia, whether it is Mr. Trump’s demand for an investigation into the investigation by the special counsel Robert Mueller, or whether Mr. Trump will testify, requires an answer to one essential background question: Can Mr. Mueller seek to indict the president?
Last week, the president’s new lawyer, Rudolph Giuliani, claimed Mr. Mueller had concluded the answer was no. And Mr. Giuliani went even further, asserting the president has so much constitutional immunity that he could not even be subpoenaed to testify about what he knows and did. Such statements are dangerously incomplete and tremendously misleading. And the ultimate loser here is not just the American people, but also perhaps Mr. Trump himself.
Begin with the basics. An indictment — a formal accusation that someone has committed a crime — can be brought only by a prosecutor working either in the federal or state system. Mr. Mueller is one such prosecutor. But even if Mr. Mueller has the goods on Mr. Trump, two barriers remain before he may indict him. First, some constitutional scholars believe a sitting president cannot be indicted. And second, two Department of Justice opinions, dating back to the Nixon and Clinton administrations, side with this view. From that vantage point, it looks as if Mr. Giuliani’s report about what Mr. Mueller said appears plausible.
But there are deep problems here. For one thing, the scholars who believe that a sitting president cannot be indicted always couple that belief with the insistence that the remedy for a president who commits a crime is to impeach him first (so he is no longer “sitting” and could then be indicted). Otherwise, a president would be above the law; he could, say, shoot someone in the middle of Fifth Avenue and face no legal process whatsoever. For that reason, the “can’t indict a sitting president” view is necessarily dependent on Congress having all of the information necessary to conduct thorough impeachment proceedings.
