The million dollar question

Special counsel Robert Mueller’s Russia investigation has gathered enough steam that [two] lawyers representing key Donald Trump associates are considering the possibility of a historic first: an indictment against a sitting president [in this case, for obstruction of justice].

  Politico

There are a lot of people who disagree. I think if Trump lets this thing play out, it's much less likely than if he keeps listening to Sean Hannity.

Neither attorney claimed to have specific knowledge of Mueller’s plans. Both based their opinions on their understanding of the law; one also cited his interactions with the special counsel’s team, whose interviews have recently examined whether Trump tried to derail the probe into his campaign’s Russia ties.

“If I were a betting man, I’d bet against the president,” said one of the lawyers.

[...]

“It’s entirely possible that Mueller may go that route on the theory that, as an open question, it should be for the courts to decide,” the [other] attorney said. “Even if the indictment is dismissed, it puts maximum pressure on Congress to treat this with the independence and intellectual honesty that it will never, ever get."

[...]

Several legal scholars say an effort by Mueller to initiate a case titled U.S. vs. Trump would, at a minimum, likely move quickly to the Supreme Court. There is no legal precedent for an indictment of a president — only a pair of Justice Department legal opinions, from 1973 and 2000 — saying it is not a viable option.

Of course, there's always the possibility that, even if he doesn't get indicted while in office, he could face charges once he's out for all that money laundering in New York or Florida.

The 2000 opinion concluded that the indictment or criminal prosecution of a sitting president “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

Is it performing those now?

Independent counsel Kenneth Starr never tried to indict Clinton. But Starr, who filed a damning report to Congress in 1998, considered the option — and even tasked his lawyers with preparing draft indictments, as well as a legal opinion asserting his power to charge Clinton.

And Clinton, other than that one lie, which he finally retracted, never tried to obstruct justice while in office. Nor collude with a foreign government to get in office in the first place (that we know of). Nor (also, that we know of) was he involved in money laundering. A few minor details.

“It is proper, constitutional, and legal for a federal grand jury to indict a sitting President for serious criminal acts that are not part of, and are contrary to, the President’s official duties,” Starr’s legal adviser, Ronald Rotunda, concluded in a 1998 memo first made public last summer through an open records request by the New York Times.

“In this country, no one, even President Clinton, is above the law,” the memo said.

[...]

Despite that assertion, Rotunda said in an interview that Mueller cannot indict Trump because he has a different legal standing than Starr enjoyed. Starr’s powers were defined by an independent counsel statute that expired in 1999. Rotunda said Mueller, by contrast, effectively has the powers of a U.S. attorney and must follow all DOJ “rules, regulations, procedures, practices and policies.”

[...]

The Justice Department regulations that govern Mueller’s work offer no clear endgame for the public to follow his investigation.

They do stipulate that the deputy attorney general, Rod Rosenstein, has oversight of and final say on all major decisions by Mueller — specifically including any indictments. Rosenstein is also required to submit a report to Congress on the grounds for closing the investigation.

[...]

“If we know anything about Mueller, we think we know that he follows the rules—all of them,” Paul Rosenzweig, another former Starr deputy, wrote Tuesday in the Atlantic. “Mueller will not indict Trump for obstruction of justice or for any crime. Period. Full stop. End of story. Speculations to the contrary are just fantasy.”

[...]

Witnesses and attorneys who have been interviewed by the special counsel’s team say the special counsel is focusing on a potential obstruction of justice case based on several well-documented events.

[...]

The lawyer who said he would “bet” against Trump said he thinks Mueller could wrap up his case soon, potentially with an indictment, to avoid acting too close to this fall’s midterm elections.

“If he’s going to do it, I think he’ll do it in the spring,” the attorney said. “I don’t think he wants to be accused of trying to influence the election that dramatically.”

Or, after the elections?

Rosenstein could also deny any attempt by Mueller to indict Trump. Justice Department rules would require such a denial to be transmitted to the House and Senate Judiciary committee leaders at the conclusion of Mueller’s work.

[...]

Philip Allen Lacovara, who served as a top counsel to the two Watergate special prosecutors, said he believes Mueller could seek an indictment against Trump, but only if the facts suggest a “slam dunk” case against the president.

Lacovara dismissed the Clinton Justice Department memo’s contention that an indictment would interfere with the president’s official duties.

“When an incumbent president, whether it’s Bush or Obama or Trump, spends an enormous amount of time on the golf course, it’s a little bit fanciful to say the president can’t be called to account for alleged criminality because he’s got to be available 24 hours-a-day to be president,” he said.

[...]

One of the Russia defense attorneys also suggested what he called a “jujitsu move”: naming Trump as an unindicted co-conspirator in a larger obstruction of justice case that targets one or more associates.

Whatever Mueller and his deputies have planned, the attorney said, it is not likely to be anticlimactic.

“There’s a sense of confidence I feel when I’m with them,” said the same lawyer. “Their level of confidence has grown.”

With good reason, I'm sure.  And now, Rick Gates appears to be flipping.  Slam dunk, anybody?

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