Ken Starr: Mueller May Indict Trump After His Presidency (HBO)

Special Counsel Bob Mueller has two pathways to proceed against President Trump if he uncovers serious wrongdoing by the President, former independent counsel Ken Starr told VICE News.

Mueller can either refer his findings to Congress for impeachment — as Starr did with former President Bill Clinton in 1998. Or Mueller can wait for Trump’s presidency to end, and indict Trump afterwards, Starr said.

Starr said he believes that the law does permit a sitting president to face a criminal indictment. But longstanding DOJ policy against charging a sitting president will keep Mueller from charging Trump while in office, Starr predicted — no matter what the special counsel’s investigation into Trump’s links to Russia finds.

Unlike many observers, Starr himself has real-world experience in making such decisions. In 1998, he sent an explosive report to Congress, dubbed the Starr Report, that laid out 11 “grounds” for impeaching Clinton, including perjury, obstruction of justice, witness-tampering and abuse of power.

Even with evidence of ‘high crimes,’ impeaching Trump would probably fail

History shows it’s harder than it looks to remove a president from office.

Trump’s reported hush payments to women during the 2016 campaign: “It may be an impeachable offense if it goes to the question of the president procuring his office through corrupt means.” 

.. Democrats would investigate Trump’s retaliations against media sources that have reported news about him that he doesn’t like as abuses of “instruments of state power.”

.. three-quarters of self-identified Democratic voters in this month’s elections support impeachment

.. they may well be right that Trump’s actions — on several fronts — could clear the threshold of “high crimes and misdemeanors.” But no one should suffer illusions about the likely result of any impeachment attempts.

.. Being deemed unfit for office — the condition intended by the Founding Fathers to trigger impeachment in the House — has never been enough to get the Senate to remove a president.

History suggests that there wouldn’t be a successful conviction by two-thirds of senators without two other conditions in place:

  1. A chief executive must also be deeply unpopular. And
  2. booting him from office must seem more advantageous for the opposition in the next election than letting him remain there.

.. “High crimes and misdemeanors,” he says, “ought to be held to those offenses which are rather obviously wrong, whether ‘criminal,’ and which so seriously threaten the order of the political society as to make pestilent and dangerous the continuance in power of their perpetrator.”

Lawmakers laid a trap. In February 1867, they overrode Johnson’s veto of the Tenure of Office Act, which required the Senate’s consent for the president to fire and replace identified executive branch officers, including the secretary of war — at that time Edwin Stanton, a strong advocate of U.S. military occupation of the South. On Feb. 21, 1868, Johnson removed Stanton, who refused to leave his office even to go home or to Cabinet meetings.

.. if impeached, Johnson’s successor would have been Ohio’s Benjamin Wade — the Senate’s president pro tempore — who was, to put it mildly, unsuited for the presidency. (For years, he dared challengers to attack him in the Senate, having prominently placed two loaded pistols on his desk when he came into the chamber.)

The Case for Impeaching Kavanaugh

If the Democrats win the House this fall, they can investigate the charges against him, should he be confirmed.

.. Impeachment proceedings in the House are investigative in nature and come with a full panoply of quasi-judicial powers, including aids to investigations, such as the power to subpoena witnesses to compel them to appear and testify (subject, of course, to constitutional privileges, if applicable, such as the Fifth Amendment’s guarantee against self-incrimination).
.. If a simple majority of the House decided to proceed with impeachment, the House Judiciary Committee would be empowered to conduct a thorough and careful investigation of the sexual misconduct allegations that Professor Christine Blasey Ford has made against Mr. Kavanaugh involving a drunken sexual assault when both were high school students in suburban Washington, D.C.
.. Nor should the Democrats wait to formally take control of the House in January. The House Democratic leadership should pledge now that if they win a majority, they will conduct an impeachment investigation, to get to the truth. Doing so today would make clear to the Senate Republicans that if they rush to judgment, in the absence of a full and fair investigation, there will still be an investigation.
.. Of course, even if the House impeached Mr. Kavanaugh, it would still take a two-thirds majority in the Senate to convict and remove him from the Court. But the Senate vote would surely have at least something to do with the merits of the House’s case: If a full and fair investigation shows that Mr. Kavanaugh has lied regarding the incident — he has denied it categorically and says nothing even remotely like it ever occurred — Republican senators may find it hard to vote “no” in the #metoo era. It would be a terrible blow to the legitimacy of the Supreme Court, of course, but this is the risk that Senators McConnell and Grassley seem willing to take.
.. Moreover, an impeachment investigation could also encompass allegations that Mr. Kavanaugh has committed perjury before the Senate, twice, related to his work on the nomination of District Judge Charles Pickering to be a judge on the Court of Appeals for the Fifth Circuit. Under oath, both in 2006 and in 2018, he said he had no involvement with the White House strategy sessions associated with Judge Pickering’s nominations. Subsequently released emails, involving these sessions, suggest that these answers were at best misleading and at worst totally false.
.. Attending a strategy session as a White House staffer is not a crime. Lying under oath to the Senate Judiciary Committee, on the other hand, is. Perjury would be a perfectly justifiable, and constitutional, basis for impeachment.
.. Federal judges, including members of the Supreme Court, should not be impeached based on their judicial rulings or philosophy.
.. proceedings should be strictly limited to questions associated with his alleged intentional and deliberate efforts to mislead the Senate about his character and fitness to serve.
.. We do not know the truth of the troubling allegations against Judge Kavanaugh. But, before someone is confirmed to the Supreme Court, good faith efforts to discover the truth should be made. And if the Senate won’t conduct a credible investigation now, the House should offer its assistance next year.

‘Winter is coming’: Allies fear Trump isn’t prepared for gathering legal storm

President Trump’s advisers and allies are increasingly worried that he has neither the staff nor the strategy to protect himself from a possible Democratic takeover of the House, which would empower the opposition party to shower the administration with subpoenas or even pursue impeachment charges

.. The president and some of his advisers have discussed possibly adding veteran defense attorney Abbe Lowell, who currently represents Trump son-in-law and senior adviser Jared Kushner, to Trump’s personal legal team

..Trump announced Wednesday that

  1. Donald McGahn will depart as White House counsel this fall, once the Senate confirms Supreme Court nominee Brett M. Kavanaugh. Three of McGahn’s deputies —
  2. Greg Katsas,
  3. Uttam Dhillon and
  4. Makan Delrahim — have departed, and a fourth,
  5. Stefan Passantino, will have his last day Friday.

That leaves John Eisenberg, who handles national security, as the lone deputy counsel.

.. McGahn and other aides have invoked the prospect of impeachment to persuade the president not to take actions or behave in ways that they believe would hurt him, officials said.

Still, Trump has not directed his lawyers or his political aides to prepare an action plan, leaving allies to fret that the president does not appreciate the magnitude of what could be in store next year.

.. Trump attorney Rudolph W. Giuliani said he and the president have discussed the possibility that special counsel Robert S. Mueller III will issue a damning report to Congress.

.. If Democrats control the House, the oversight committees likely would use their subpoena power as a weapon to assail the administration, investigating with a vengeance. The committees could hold hearings about policies

  1. such as the travel ban affecting majority-Muslim countries and
  2. “zero tolerance” family separation, as well as on possible
  3. ethical misconduct throughout the administration or the Trump family’s private businesses.
..  “Assuming Democrats win the House, which we all believe is a very strong likelihood, the White House will be under siege. But it’s like tumbleweeds rolling down the halls over there. Nobody’s prepared for war.”
.. Trump has told confidants that some of his aides have highly competent lawyers such as Lowell, who represents Kushner, and William A. Burck, who represents McGahn as well as former White House chief of staff Reince Priebus and former White House chief strategist Stephen K. Bannon.
“He wonders why he doesn’t have lawyers like that,” said one person who has discussed the matter with Trump.
Another adviser said Trump remarked this year, “I need a lawyer like Abbe.”
Giuliani said that he has not heard of Trump considering adding Lowell to the team but that he would be a great choice because of his thorough and aggressive style.

“This president might like that better,” Giuliani said. “If he thinks someone isn’t being tough enough, he has a tendency to go out to defend himself. And that’s not good.”

.. “I would think that the type of lawyer most able to handle the impeachment scenario would be someone from the appellate and Supreme Court bar — someone of the Ted Olson or Paul Clement or Andy Pincus level, someone who knows how to make the kind of arguments should it come to a vote in the Senate,” Corallo said.

.. Emmet Flood, a White House lawyer and McGahn ally who handles the special counsel’s Russia investigation, has long been considered a top prospect to replace McGahn.

.. Flood, often described as a lawyer’s lawyer, is in many ways the opposite of Trump and Giuliani, yet the president has told advisers he is impressed by Flood’s legal chops and hard-line positions defending the prerogatives of the White House.

.. White House aides, including deputy chief of staff Johnny ­DeStefano and political director Bill Stepien, have tried to ratchet down Trump’s expectations for the elections, saying that projections look grim in the House.

.. Another concern is that the White House, which already has struggled in attracting top-caliber talent to staff positions, could face an exodus if Democrats take over the House, because aides fear their mere proximity to the president could place them in legal limbo and possibly result in hefty lawyers’ fees.

“It stops good people from potentially serving because nobody wants to inherit a $400,000 legal bill,” said another Trump adviser.

.. the West Wing staff is barely equipped to handle basic crisis communications functions, such as distributing robust talking points to key surrogates, and question how the operation could handle an impeachment trial or other potential battles.

Trump sees the administration as having a singular focus — him — and therefore is less concerned with the institution of the presidency and not aware of the vast infrastructure often required to protect it, according to some of his allies.

.. Jack Quinn, who served as White House counsel under Clinton, said his office had at least 40 lawyers and as many as 60 during key times.

.. “I appreciate that Rudy Giuliani is doing a lot of the public speaking and perhaps some other things,” Quinn said. But, he added, “it’s a little bit of a mystery to me who is doing the outside legal work.”