Does Mueller have the power to indict Trump?

[Orangeutan]

Assuming the Repug party hacks baying for him to resign don't get their way and Mueller is allowed to complete his investigation, how much power does he have to force the issue? I heard last night on MSNBC that once he issues a report on his findings, Congress could merely choose to ignore it and not impeach. But does Mueller actually have the power to bring criminal indictments against Trump that the Repug's would be powerless to stave off?

[The Velveteen Ocelot]

1. No; grand juries issue indictments. But as far as I know

he can present the case to a grand jury.

[still_one]

2. As I understand it, if he believes he has enough evidence that a crime was committed, that would be

submitted to a grand jury. However, the only way trump could get removed from office is through impeachment, after which he could be indicted

[Orangeutan]

3. So he cannot be indicted while in office?

[The Velveteen Ocelot]

8. The issue is unsettled. Some legal experts think a sitting president

be indicted (charged) while in office, just not prosecuted until after he leaves. The grand jury that considered the Watergate crimes indicted a bunch of people but named Nixon as an "unindicted co-conspirator" because the special counsel didn't think they could indict him.

[Orangeutan]

10. Thanks!

[still_one]

11. That is correct

[kysrsoze]

13. I thought he could still be indicted at the state level, hence they NY Atty General being pulled in.

[The Velveteen Ocelot]

16. That has to do with pardons. He can't pardon a state crime.

[marylandblue]

24. He actually could be indicted by a state

But the effect of a state indictment would be challenged in federal court. States are actually considered sovereign governments, so an argument could be made that federal courts cannot block a state indictment. Since this has never happened, it will turn on first principles. Is the president above the law? What if he did shoot someone on Fifth Avenue? Murder is a state crime, not a federal crime. Blocking a state indictment would put Trump and all subsequent presidents above the law.

[Dotarded]

31. They have to be above state law

Just like almost every common state crime there is a federal statute on the books as well. Murder is very much able to be tried in Federal court

https://www.law.cornell.edu/uscode/text/18/1111

I think that it treads on some serious dangerous territory to allow states to attempt to try the President of the United States. There would be nothing stopping Oklahoma from bringing state charges up for a future Democrat in the office to destabilize the federal government

[marylandblue]

33. This statue refers to crimes committed at sea outside a state jurisdiction

While it's true that letting a state indict a president has it's major drawbacks, I think that those are small potatoes compared to declaring the President a dictator.

[Dotarded]

34. No there are a number of ways a murder case can be federal

It says: (b) Within the special maritime and territorial jurisdiction of the United States

But anyways on this I think it would go completely against the entire reason the Federal government exists if rouge states of any side can start going around and deciding on their own who the President can be.

Has nothing to do with anyone being a dictator.

Wyoming would love this idea though

[marylandblue]

35. Maybe, I'd have no problem with him being convicted of a federal crime

I just can't believe the Constitution left a door open to someone becoming a dictator.

[H2O Man]

4. Yes.

[Wellstone ruled]

5. Just ask Bill Clinton.

[H2O Man]

7. Clinton was

not indicted, but was forced to participate in a civil case.

In the nation's history, while no president has been indicted (with Nixon being an "un-indicted co-conspirator&quot , Mr. Mueller & Team will indict Trump if Congress fails to impeach him. They have laid the groundwork for that possibility. It will, of course, end up in the Supreme Court, but Mr. Mueller will win.

[Wellstone ruled]

9. Forgot it had to be a

Civil Action. But,hey,that will work. Bankrupt the sucker.

[H2O Man]

14. What this discussion

leaves out, and too few people are aware of, is that a grand jury has powers that go beyond even that of the prosecutor presenting the evidence. In the case of an investigating grand jury, the prosecutor serves the grand jury, and is considered to represent "the People." The judge that oversees the grand jury insures its power.

In this case, the issue may be if the grand jury indicts Trump, would the DoJ chose to try him. That is a distinct question from can the grand jury indict a president. That may well be the tipping point of the upcoming constitutional crisis.

[Wellstone ruled]

18. Time is really taking a toll on the Grey Matter.

Thanks for the info. Been close to forty years since my stint on a GJ,forgot about our Orientation Included these ground rules. The Judge overseeing our Jury was a real Educator and a detail person. Then again,we were dealing with County Issues.

As you mention,this could be Constitutional Crisis,especially if it involves the Robert's Court.

[Orangeutan]

21. So what I'm getting from this is that it comes back to the D of J on whether to try or not

And thus the decision is Rosenstein's, unless Sessions decides to unrecuse himself, a la Nunes.

[marylandblue]

26. It is Mueller's decision, not DOJ's

Mueller's appointment letter and the regulations delegates all prosecutorial authority to him. DOJ's authority is limited to firing Mueller "for cause." There actually is a Watergate precedent for this. When Nixon fired Special Counsel Cox, a court found that Nixon did not have the authority to fire him, however the point was moot because a new Special Counsel was already hired and Cox did not want his old job back.

[H2O Man]

30. Great call.

I know that some on this forum have asked about Rosenstein's role, and if the Trump team could make use of a possible conflict, considering his role at DoJ and as a likely witness if things go to trial, And those are valid questions. But, as you correctly note, they don't apply here. Thank you.

[Orangeutan]

6. Illuminating article from the Post:

It would seem Mueller's hands are tied by Sessions & Co.

https://www.washingtonpost.com/opinions/the-president-can-be-indicted--just-not-by-mueller/2017/07/27/a597b922-721d-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.0f8a524b0832

[The Velveteen Ocelot]

12. According to an assistant prosecutor for Ken Starr

during the Clinton witch hunt.

[marylandblue]

15. That's his opinion, not a court decision

Since there is no precedent for indicting a president, the courts will have to fall back on basic question. The key question is, "Is the president above the law?" Most Americans, even many Trump supporters, will say no. But if the court says yes, then they have declared Trump dictator.

I don't think this court is ready to declare a dictatorship. But if the question comes to them, all nine will understand that they are being asked that question, and are not being asked about 150-year old precedents.

[Gothmog]

17. It is not clear but there is an argument that Mueller could indict Trump

[leftynyc]

19. That's the difference

(as I understand it) between a special counsel (Mueller) and a special prosecutor - counsels cannot indict. That's for the grand jury.

[marylandblue]

20. No that's not the difference at the federal level

Fifth Amendment says, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,"

Mueller can indict with a Grand Jury, but I don't think he will have trouble getting indictments based on the evidence and defenses we've heard. The evidence points to a massive money laundering operation. That's all the grand jury needs. Defenses are for trial.

[AncientGeezer]

22. No.

[mackdaddy]

23. I believe that I read that and indictment, even if not prosecuted during term in office

would stop the clock on the statute of limitations for any crimes. He could then still be prosecuted after he is out of office.

Also an indictment even if not prosecuted could be used for the framework for impeachment which is itself a form of indictment.

[Lurks Often]

25. Not for Federal crimes

Legally a sitting President can be only be removed from office through either the 25th Amendment or through impeachment & conviction in Congress.

As for state crimes a sitting President isn't above the law, but it is very likely that any charges, arrest & trial would not occur until after the person is no longer President.

In other words Trump will likely remain President until 1/20/2021

[marylandblue]

27. This argument did not work for Clinton in his civil case

Why would it work for Trump in a criminal case? We'd essentially be agreeing that Clinton has to answer to any civil suit brought against him while still in office, but Trump actually can shoot as many people as he wants on Fifth Avenue and then on 1/19/2021 he can take Air Force One to Russia and seek asylum from his friend Putin.

[Lurks Often]

28. The civil suit was for events that took place prior to Clinton becoming President

Link: https://en.wikipedia.org/wiki/Paula_Jones#Jones_v._Clinton

Note that the issue went all the way to SCOTUS, which ruled unanimously against Clinton (also at the link). In the end Clinton chose to settle out of court. A civil case does not result in jail time and I recall reading a story that one or more people were going to sue Trump for things that took place prior to him even running for President

I gave my best guess, you disagree. IF Trump is charged with a non-Federal crime, the issue will almost certainly be decided before SCOTUS which I suspect will rule that a President can not be tried for a non-Federal crime until after office, since a conviction would be a "back door" way of removing a sitting President not permitted under the Constitution.

[marylandblue]

29. I see the issue going to the Supreme Court as well

But I see the question differently. The Constitution is actually silent on whether a President can be indicted or not. So I see the question as being, "Is the President above the law?" When asked that way, there is, IMHO, overwhelming evidence that the answer was always no. Being above the law is historically a privilege reserved for kings and dictators only.

How is the President's attorney going to answer this question( that I imagine Elena Kagan asking) :

"So in your view, the President can do whatever he wants, violate any laws, ignore subpoenas, order his political opponents shot and as long as 51% of the House of Representatives doesn't mind, there is nothing the courts can do about it?"

[Lurks Often]

32. You can imagine any question you like, but there is a good chance SCOTUS

rules that a sitting President can only be removed from office either through impeachment & conviction by Congress or via the 25th Amendment.

The bottom line is no one knows for certain.