Indeed, A Secret Indictment Against The Sitting President May Have Already Been Issued
WASHINGTON, D.C. (Dec. 18, 2018) – Now that even the President’s own attorney, Rudy Guliani, appears to have admitted that Donald Trump may have committed a federal crime in paying hush money to avoid disclosures likely to harm his election prospects, many naturally wonder whether a sitting president can and should be indicted if the evidence warrants.
There are at least four reasons why a sitting president, in this case Trump, can and should be indicted, suggests public interest law professor John Banzhaf, who played a role in obtaining two special prosecutors, and successfully sued former Vice President Spiro T. Agnew when his indictment and subsequent plea bargain did not require him to return the money he received as bribes.
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FIRST, an indictment would prevent Trump from avoiding justice for any crimes he might have committed as to which the statute of limitations might run out before his presidency ends. Since the statute of limitations for most federal crimes is five years, Trump might escape prosecution for any financial or other crimes he committed before running for office, or for crimes he may have committed to help him win the election, unless the statute of limitations is tolled. The simplest and most direct means for tolling the statute is for an indictment to issue.
As to crimes Trump may have committed within five years of leaving office at the end of only one term, the statute of limitations would not be a barrier if he is charged shortly after stepping down from office - and virtually everyone agrees that a president-turned-private-citizen has no immunity from criminal prosecution for crimes he may have committed while serving in the office. But this might create a bizarre incentive for a president to seek a second term, since a second four years in office would then shield him from prosecution for most crimes he may have committed during the first several years of his first term.
SECOND, issuing an indictment may be the only way for special counsel Robert Mueller to insure that the results of his far reaching investigations become known to Congress, much less to the American public. Unlike with regard to independent counsel Kenneth Starr who issued a lengthy report about President Bill Clinton's alleged misdeeds, Starr was able to do so only because the statute under which he was appointed required that he submit to Congress a report if he found any "evidence which might warrant impeachment."
In contrast, since that statute had long since expired, Mueller was appointed under Department of Justice [DOJ] regulations which do not require, or even permit, a public report from Mueller. Instead, they make it very difficult for any such findings to become public. The DoJ regulations, specifically Section 600.8, requires the special counsel to provide a "CONFIDENTIAL report explaining the prosecution or declination decisions reached by the Special Counsel," but only to the Attorney General. [emphasis added]
Moreover, if Mueller does find that there is probable cause to believe that Trump has engaged in serious wrongdoing - technically that "other governmental action outside the criminal justice system might be appropriate" - he may "consult [ONLY] with the Attorney General with respect to the appropriate component to take any necessary action." But it's not clear that whoever finally makes the decision would then release the report, especially since the law doesn't require him to do so, and there is already enormous pressure from the executive branch not to.
However, if Trump were indicted, that document would presumably spell out in great detail not only his alleged crimes, but also much of the underlying evidence. This is especially true if Mueller continues to follow his past practice of issuing "speaking indictments," a term generally used to describe charging documents which contain far more information and detail than is customary or required by law, explains Banzhaf.
THIRD, if desired, or if deemed necessary under DOJ policy or practice, any indictment issued against a sitting president could be issued in secret as a sealed indictment. This would, of course, satisfy the very strong need to toll the statute of limitations to prevent a president from avoiding a trial simply by letting the clock run out on his alleged crimes.
A sealed indictment would also probably mean that the results of his investigation would be subject to the control of one or more judges, and therefore protected from any actions an attorney general, acting attorney general, or even the President himself might take to destroy it, or to forever keep it secret.
Indeed, some believe that this is what Mueller is already doing by issuing lengthy and detailed speaking indictments regarding other individuals. Although many portions of these documents have been redacted, the information and evidence in the redacted portions is under the control of judges who could release it to Congress or even to the public if circumstances warranted. Indeed, CNN has reported that "it is even possible that the president already has been indicted by a federal grand jury in a secret, sealed indictment . . ."
FOURTH, it has frequently been argued that prosecutors who develop new but perhaps questionable legal theories should not err on the side of caution and hesitate to advance them. Rather, it is suggested that they should advance such new theories where appropriate, and allow a neutral judge - or even an appellate court - to decide whether they are legally valid. This allows these important decisions to be made by someone free of any conflict of interest or direct political pressures, and prevents criticism of a runaway prosecutor.
In this situation, there is a difference of opinion, apparently even within the DoJ, as to whether a sitting president can be indicted. Rather than being unduly cautious, a prosecutor - either special counsel Mueller or several U.S. attorneys now considering evidence regarding Trump - would be well advised to allow the courts, including ultimately the U.S. Supreme Court, to make the ultimate decision.
The current situation involving Trump is unprecedented, going far beyond Nixon's involvement with Watergate. This unprecedented situation with a sitting president, which some predict may provoke a constitutional crisis even more serious than Watergate, may well call for unprecedented legal responses, suggests Banzhaf.
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