We all know that Department of Justice rules don’t allow a sitting president to be indicted, right? The thing is, that’s mostly – if not entirely – wrong. It’s not a rule, or even a policy. It’s just a guideline, which means it doesn’t have to be followed. It was crafted nearly fifty years ago and was never tested, which means there is no legal precedent involved. That brings us to the growing buzz this week that SDNY is preparing to indict Donald Trump while he’s still in office.
The thing about this narrative is that it’s difficult to trace precisely where it came from, but it just won’t go away. Publications as large as Politico and Newsweek are touting it, even though they all seem to be citing the same ‘growing buzz in legal circles’ as their source, and that buzz seems to be as much of a result of these articles as it is the source of them. So why are we even talking about it?
Because it very well could happen, and it could happen very soon. For all of SDNY’s supposed rebellious streak and supposed independence, it seems to be consistently acting as an offshoot for Robert Mueller’s investigation. He didn’t want to directly tackle Michael Cohen or the National Enquirer, so he farmed these cases out to SDNY. It’s something of an insurance policy: if Trump knows he can’t make all of these investigations go away by firing Mueller, then he has little motivation to fire Mueller. Trump seems to understand that SDNY may be his real problem.
We learned today that Trump spent recent weeks trying (and failing) to convince then-Acting Attorney General Matt Whitaker to reinstate Geoffrey Berman to oversee the SDNY’s investigation into Trump, which is hilarious considering that Berman already recused himself from that investigation. Trump is proving himself to be as incompetent of a criminal as ever, but the upshot is that Trump clearly understands that SDNY is coming after him.
This leads to the question of why the legal community is so abuzz right now with the notion that SDNY is preparing to indict Donald Trump. The answer would seem to be that it’s because Robert Mueller is gearing up for his big endgame against Trump, and while we don’t know what the endgame looks like, we do know that Mueller usually outsources the dicey stuff to SDNY.
We all know that Robert Mueller isn’t going to simply file a report and go home, thus allowing for the possibility that Donald Trump and his people could simply stick the report in a drawer. Mueller will absolutely take a big swing aimed at shattering Trump into pieces, thus ensuring that his presidency dies, so Trump can then be put on trial and brought to justice. One of the most efficient ways to do that would be to have SDNY indict Trump. It wouldn’t be about whether the indictment, arrest, and trial could be legally carried out while Trump was still in office. It’s that the indictment itself would probably end Trump’s presidency on the spot.
Bill Palmer is the publisher of the political news outlet Palmer Report