• Monthly
  • $25
  • $50
  • $100
  • $other
  • use PayPal

ONE WEEK TO DOUBLE YOUR DONATION!

A generous CounterPuncher has offered a $25,000 matching grant. So for this week only, whatever you can donate will be doubled up to $25,000! If you have the means, please donate! If you already have done so, thank you for your support. All contributions are tax-deductible.
FacebookTwitterRedditEmail

Indict or Not: the Choice Mueller May Have to Make and Which is Worse for Trump

Photo by DonkeyHotey | CC BY 2.0

Soon Special Prosecutor Robert Mueller will have a choice to make–whether to indict Donald Trump for either some underlining crimes or for obstruction of justice.  Mostly press and legal speculation has centered on whether a sitting president can be indicted.  This is an easy question that a federal court has already resolved affirmatively.  The real questions are whether he should be indicted, both from the point of view of probable cause, and second, from the point of what would have the biggest impact upon Trump and his presidency.  If Trump is lucky, he should hope for an indictment as opposed to being named an unindicted co-conspirator.

Not withstanding Rudy Giuliani’s demands or declarations that the Mueller investigation will stop soon, it is likely that at least the initial investigatory phase of his work is soon  coming to an end.  This first phase is fact gathering, looking to at the scope of Russian involvement I the 2016 elections and whether Donald Trump, his campaign, or members of his administration or even his attorney Michael Cohen cooperated with them or broke any laws.  This criminal investigation sweeps in payments to Stormy Daniels and probably other activities too that allege other countries might have  broke US laws.  But then there is the secondary investigation addressing obstruction of justice and whether again Trump, his campaign, or his administration did anything to impede a federal criminal  investigation.  Actions by Mueller, including efforts to question the president, point to an investigation near completion.

Phase two involves a grand jury.  Will Muller seek indictments for others, including the president?  No one knows, and media speculation is simply that.  No indictments for anyone, including Trump himself, for either primary offenses or obstruction of justice are possible.  Much depends on what evidence Mueller finds and presents to a grand jury and what they decide.

But assume for now that there is evidence that Trump broke some criminal laws, can he be indicted?   Trump supporters say no, pointing to the February 1974 grand jury decision against Richard Nixon that he could not be indicted, thereby listing him as an unindicted co-conspirator along with several individuals who were actually charged. Mainstream media is almost rabid in speculation over this question, but what everyone is ignoring is how this issue was effectively resolved by President Gerald Ford on September 8, 1974 when he pardoned Richard Nixon.  In issuing the pardon Ford said that it covered   “Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”

A presidential pardon made no sense if Nixon could not have been indicted, and Ford understood that.  It would not have been issued if it were clear that the president  could not be charged with a crime.  Look at the language of the proclamation–“As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor.”  There is no sense in this language that the president could not be indicted, it was simply taken as a possible fact.

Moreover, in Murphy v. Ford, 390 F.Supp. 1372 (1975), a federal district court judge upheld the pardon.  It declared that “The fact that Mr. Nixon had been neither indicted nor convicted of an offense against the United States does not affect the validity of the pardon.”  The court did not even flinch in considering whether the president could be indicted because if he could not be then the pardon made no sense and the judge probably would not have heard the case.  The point is that both Gerald Ford and a federal judge, subsequent to a grand jury non-indictment of Nixon, concluded that the president could be criminally liable, effectively have resolved this debate.

But assuming that the Nixon pardon has addressed this issue and Trump could be indicted, what then?  Scenario one is that this analysis is wrong and Trump supporters are correct that he cannot be indicted.  If that is the case, it creates a different problem for the president.  Individuals who cannot be indicted for crimes, such as when they are issued immunity from prosecution, lose their Fifth Amendment right against self-incrimination and therefore can be compelled to testify.  Trump could be forced to talk and not be able to refuse a subpoena.  U.S. v. Nixon,  418 U.S. 683 (1974), involving whether Nixon could refuse to hand over the Watergate tapes to a federal prosecutor, resolved the issue that presidents cannot refuse to comply with a subpoena issued by a federal judge in a criminal matter.  Scenario two, Trump is simply named an unindicted co-coconspirator.  If a grand jury concludes he cannot be indicted then again he loses his Fifth Amendment right to remain silent.

However, even more damaging is if a grand jury says Trump is an unindicted co-conspirator, then what next for the president? The president cannot have a trial to be acquitted.  He is effectively declared guilty without any recourse to a trial to force the government to prove its case.  The damage to his presidency and the pressure on Congress to act, especially if it came on the heels of the 2018  elections would be overwhelming.  Trump and his supports might well hope that a jury does not conclude there is evidence to indict but opt not to; this scenario could well be worse than a possible indictment.

More articles by:

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

bernie-the-sandernistas-cover-344x550
Weekend Edition
October 18, 2019
Friday - Sunday
Anthony DiMaggio
Trump as the “Anti-War” President: on Misinformation in American Political Discourse
Jeffrey St. Clair
Roaming Charges: Where’s the Beef With Billionaires?
Rob Urie
Capitalism and the Violence of Environmental Decline
Paul Street
Bernie in the Deep Shit: Dismal Dem Debate Reflections
Andrew Levine
What’s So Awful About Foreign Interference?
T.J. Coles
Boris Johnson’s Brexit “Betrayal”: Elect a Clown, Expect a Pie in Your Face
Joseph Natoli
Trump on the March
Ashley Smith
Stop the Normalization of Concentration Camps
Pete Dolack
The Fight to Overturn the Latest Corporate Coup at Pacifica Has Only Begun
Jeremy Kuzmarov
Russophobia at Democratic Party Debate
Chris Gilbert
Forward! A Week of Protest in Catalonia
Daniel Beaumont
Pressing Done Here: Syria, Iraq and “Informed Discussion”
Daniel Warner
Greta the Disturber
M. G. Piety
“Grim Positivism” vs. Truthiness in Biography
John Kendall Hawkins
Journey to the Unknown Interior of (You)
Christopher Fons – Conor McMullen
The Centrism of Elizabeth Warren
Nino Pagliccia
Peace Restored in Ecuador, But is trust?
Rebecca Gordon
Extorting Ukraine is Bad Enough But Trump Has Done Much Worse
Kathleen Wallace
Trump Can’t Survive Where the Bats and Moonlight Laugh
Clark T. Scott
Cross-eyed, Fanged and Horned
Eileen Appelbaum
The PR Campaign to Hide the Real Cause of those Sky-High Surprise Medical Bills
Olivia Alperstein
Nuclear Weapons are an Existential Threat
Colin Todhunter
Asia-Pacific Trade Deal: Trading Away Indian Agriculture?
Sarah Anderson
Where is “Line Worker Barbie”?
Brian Cloughley
Yearning to Breathe Free
Jill Richardson
Why are LGBTQ Rights Even a Debate?
Jesse Jackson
What I Learn While Having Lunch at Cook County Jail
Kathy Kelly
Death, Misery and Bloodshed in Yemen
Maximilian Werner
Leadership Lacking for Wolf Protection
Arshad Khan
The Turkish Gambit
Kollibri terre Sonnenblume
Rare Wildflower vs. Mining Company
Dianne Woodward
Race Against Time (and For Palestinians)
Norman Ball
Wall Street Sees the Light of Domestic Reindustrialization
Ramzy Baroud
The Last Lifeline: The Real Reason Behind Abbas’ Call for Elections
Binoy Kampmark
African Swine Fever Does Its Worst
Nicky Reid
Screwing Over the Kurds: An All-American Pastime
Louis Proyect
“Our Boys”: a Brutally Honest Film About the Consequences of the Occupation
Coco Das
#OUTNOW
Cesar Chelala
Donald Trump vs. William Shakespeare
Ron Jacobs
Calling the Kettle White: Ishmael Reed Unbound
Stephen Cooper
Scientist vs. Cooper: The Interview, Round 3 
Susan Block
How “Hustlers” Hustles Us
Charles R. Larson
Review: Elif Shafak’s “10 Minutes 38 Seconds in This Strange World”
David Yearsley
Sunset Songs
October 17, 2019
Steve Early
The Irishman Cometh: Teamster History Hits the Big Screen (Again)
FacebookTwitterRedditEmail