Saturday, May 19, 2018


Neal Katyal is a registered Democrat who was co-counsel to Al Gore in Bush v. Gore and Principal Deputy Solicitor General of the United States under President Barack Obama. However, he evidently actively and enthusiastically supported the nomination of Neil Gorsuch to the Supreme Court without indicating that he had active cases pending before the Court.

He has an impressive resume, however, and while serving in the Clinton-era Justice Department in 1999 was the lead author of the rules governing the Special Counsel. Therefore, his opinion is worth considering in light of the claim on Wednesday's "Fox and Friends" by Rudy Giuliani that the latter had spoken to Robert Mueller and

I asked him specifically if they realized or acknowledged they didn’t have the power to indict bother under the justice department memo which gives them their power in essence, confines their power, and under the constitution. And he said we’ll – he wouldn’t answer. And one of his assistants said they acknowledged they had to be bound by justice department policies. And then the next day or the day after they clarified it for Jay Sekulow who was with me at the meeting that they didn’t have the power to indict and that what they’d eventually do is write a memorandum and give it to the deputy attorney general, [Rod] Rosenstein.

On Thursday evening, Katyal told host Ari Melber of MSNBC's "The Beat"

.... a lot of these scholarships and opinions or waiting to say a sitting President can`t be indicted were before the Paula Jones case. And the Supreme Court in Paula Jones case and vowing (ph) Bill Clinton said, you know, the American principle is no one is above the law.

And you know, that was a civil case. And what goes for a civil case, II suspect there will be a pretty good argument, goes even stronger for a criminal case. That a President shouldn`t be able to commit crimes and act with impunity. And there`s a second real problem here. Becausse the whole idea behind, you can`t indict a sitting President, a large part of it comes from the fact that indictments are distracting to the President who is very busy. And you got to carry out their official duties.

You know, courts operate in the real world. And you know, they know for example, that Donald Trump has golfed 53 days out of his 482 days in office, which more than one in ten days. So it`s a little hard to make the kind of distraction arguments that are at the core of Presidents can`t be indicted opinions when you`re talking about this President.

While that makes sense to a layperson, Katyal's remarks on The Beat (video below) on February 20 went more directly to the substance of the law.

Melber noted the opinion issued on October 16, 2000 by the Office of Legal Counsel in the Department of Justice that "the indictment or criminal prosecution of a sitting President would be unconstitutional."  Nonetheless, Katyal stated "the regulations also say that the Special Counsel can seek a departure from the established DOJ policies with the permission of the Acting Attorney General."

Presumably, then, if Mueller wants to pursue an indictment, he can do so with approval of the individual in the Justice Department in charge of the probe. That currently is Acting Attorney General Rod Rosenstein, although only because Attorney General Sessions has recused himself from the case.  It is conceivable that Sessions would "unrecuse" (apologies to English teachers everywhere) himself or that Trump would fire him, in which case he'd probably be replaced by someone who would do the President's bidding.

Additionally, the modern corollary to Mr. Dooley's "the Supreme Court follows the election returns" (bad prediction here) might be "in partisan matters especially, the Supreme Court rules according to political party" and the current Court, on which there are five Republicans, might be tempted to rule in favor of Team Russia. Many TV lawyers and journalists, superficially considering only the 2001 opinion, have assumed that a sitting President cannot be indicted.

Yet, most evidence suggests that there is no constitutional barrier to indicting a sitting President. The dirty little secret is that an indictment always can be obtained, even of a ham sandwich, in this case with the approval of Mueller's superior.  And now that Katyal has weighed in, we know the individual who might know the rules better than anyone believes that an Indictment can be legally, constitutionally obtained and should withstand judicial scrutiny.

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