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.