Neal Katyal: Can’t Indict a President? That Could Hurt Trump

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.

.. To say that a prosecutor cannot indict a sitting president is, by definition, to say that the prosecutor’s evidence must be given to Congress so that it may decide whether the president should remain in office. It means, in short, that should Mr. Mueller conclude he cannot indict a sitting president, he would also have to turn over all of the information he has uncovered to Congress.

.. If Mr. Giuliani is correct that Mr. Trump cannot be indicted, then the other idea being floated by Mr. Trump’s lawyers — that such testimony would amount to a “perjury trap” — makes little sense.

.. The president of the United States would be refusing to do what every other federal employee must do — provide evidence in a law enforcement proceeding — even when he faces no imminent criminal consequences.

.. But there is a deeper problem still. Mr. Giuliani appears to be making an argument not just about timing — that a sitting president cannot be indicted while in office — but also about the president’s being immune from the criminal process altogether. That is the basis for his claim that the president can refuse a subpoena, which harks back to the notorious statement of Richard Nixon that “when the president does it, that means that it is not illegal.”

.. If congressional leadership, for example, was in criminal cahoots with the president, no one would want the special counsel to be powerless to indict or to report information to the full Congress for impeachment.

.. Accordingly, the regulations permitted the special counsel to seek a departure from Justice Department policy, by going to the acting attorney general (in this case, Rod Rosenstein)

.. If the acting attorney general refuses a special counsel request, he must notify the majority and minority parties in Congress.

.. It is far more likely that Mr. Mueller has concluded that Justice Department policy currently forbids such a step, but that he has a path forward toward seeking indictment if he believes it warranted.

.. Mr. Trump, whose Justice Department has, with his blessing, repeatedly overruled longstanding Justice Department positions at an unheard-of rate, is in no position to complain if Mr. Rosenstein overrules these two old opinions.

.. If indictment is off the table, then impeachment must be on it

.. if impeachment is off the table because of nefarious congressional activity, then indictment must be on it.