Monday, March 19, 2018

Criminal indictment of a sitting president?

I don't see why not. Here's a little flashback to the Clinton Whitewater days when people were asking about this legal issue.
While the Nixon Justice Department took the view that the president couldn't be indicted, the House Judiciary Committee, which draws up articles of impeachment, had a different perspective. A memorandum of law drawn up for the committee during Watergate states: "The Constitution itself provides that impeachment is no substitute for the ordinary process of criminal law since its specifies that impeachment does not immunize the officer from criminal liability for his wrongdoing." Significantly, the committee did not say that such a criminal charge had to await the president's removal from office.

It's possible to imagine many circumstances where such a delay would be unthinkable. Let us suppose that one day a president, tired of the constraints of security, secretly leaves the White House in a car and strikes and kills a pedestrian. Suppose, further, the president was drunk at the time. Does anyone argue that justice must await his impeachment and removal? Impeachment might not even be warranted since this is not the type of "high crime or misdemeanor" contemplated by the drafters of the Constitution.

  WSJ
But I will put you another case: Suppose that one day a vice president invites someone to go hunting with him and shoots the man in the face. And suppose, the vice president is whisked away and hidden until the following morning so that no officer of the law can know his condition. Does anyone argue that justice must await the time needed to pass a breath test?
Robert Bork, when he was solicitor general under President Nixon, declared on behalf of the Justice Department that a president had to be impeached and removed from office before being indicted. By contrast, the Justice Department declared that Vice President Spiro Agnew could be criminally prosecuted, but the issue was never resolved because Mr. Agnew pleaded guilty.

[...]

The Bork position [...] has no basis in law. Nor is it particularly convincing as a matter of policy. Yes, the president is the chief enforcer of the laws, so it would be somewhat odd for him in effect to indict himself. But this is precisely why the independent counsel was created. Independent counsels are not appointed by the White House, so presumably they should be free to pursue criminal charges against the president if his actions warrant it.

[...]

The nation, in fact, could conceivably benefit from the indictment of a president. It would teach the valuable civics lesson that no one is above the law. As an appeals court told Mr. Clinton in the Paula Jones case, the Founders created a presidency, not a monarchy.
You want to know who wrote those words? An attorney by the name of Joseph diGenova, March 6, 1997.

Fast forward.
President Trump is hiring Joseph diGenova, a former U.S. attorney, to be part of his legal team representing him in the Russia probe being led by special counsel Robert Mueller, CBS News chief White House correspondent Major Garrett reported Monday. Trump attorney Jay Sekulow announced the addition of diGenova to the team Monday afternoon.

[...]

DiGenova is seen as devoted to Mr. Trump, fierce in his advocacy and more disciplined in terms of media dealings than Dowd, Garrett notes.

  CBS
Hmmm. This will be interesting, then, in light of his opinion during Clinton's term.
According to sources familiar with this move, Garrett reports that John Dowd will remain on the Trump personal legal team but DiGenova was recruited and hired to limit Dowd's role.
Probably a good idea.
In a radio interview that aired Monday, diGenova slammed FBI Director Christopher Wray, calling him an "embarrassment" over his handling of the firing of Deputy FBI Director Andrew McCabe.
Wray? Wasn't it Sessions' call? Are we going to try to get rid of Wray now?

Also, his wife is Victoria Toensing. And their firm is representing Mark Corallo.

We're gonna need more than three rings for this circus.


...but hey, do what you want...you will anyway.

UPDATE: 3/23:

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