It is being reported by major British publication The Spectator that Special Counsel Robert Mueller is ready to indict Donald Trump, but Attorney General William Barr is preventing him from moving forward, because of a decades old DOJ memo that suggests you cannot indict a sitting President.
A very interesting thing just happened in New York State: Paul Manafort was indicted on state charges for sixteen felony offenses. Several of Manafort’s crimes involved falsifying business records in the first degree. As reported by Rachel Maddow on Wednesday night, this is the same kind of criminal charge in the same state for which Donald Trump was named as an unindicted co-conspirator.
This raises the very real possibility that New York State could indict President Trump at any time. New York State prosecutors are not federal prosecutors (not to be confused with the Southern District of NY, which is a federal office). They are not part of the Department of Justice and are not subject to DOJ internal policies. They have no restrictions on indicting a President.
So, why haven’t they indicted Trump yet? First of all, most if not all, law enforcement offices work together, especially in determining jurisdiction issues. Clearly, Mueller’s office has been in communication with state law enforcement offices. If the President of the United States is indicted by anyone, that indictment would be challenged in the courts, and the courts would have to decide if a sitting President could be indicted.
Robert Mueller and his team of prosecutors are first-rate, and they are by far the best-equipped office to handle that court case. Additionally, the list of charges Mueller could potentially bring are much more likely to include post-election crimes that include abuse of power and other high impact crimes that could more effectively counter the defense argument that indicting a sitting President is too disruptive to the country.
It is clearly better for the Special Counsel’s office to take the lead in indicting Donald Trump, and to argue the resulting court cases, but if Mueller is prohibited from moving forward, it is quite likely that New York State could take the lead and indict Trump.
Imagine New York State taking the lead after the Department of Justice sat on its hands and took a pass on its requirement to uphold the rule of law and provide a check to abuse of Executive power. What a stain on the reputation of the Department of Justice that would be. I can almost hear Robert Mueller saying as much to Attorney General Barr. Will the Attorney General allow the DOJ be embarrassed by allowing New York State do the work it refused to do?
Cheryl Kelley lives in the DC area with her husband and young son. She is active in government and politics.