Kevin Daley on May 17, 2018
Rudy Giuliani told CNN Wednesday that special counsel Robert Mueller informed President Donald Trump’s legal team that his office concluded a sitting chief executive cannot be indicted.
Here are three things you need to know about this revelation.
1. The special counsel could still recommend action against Trump
As most news accounts noted, Mueller still has other options with respect to Trump. Should he find compelling evidence of criminal behavior on the president’s part, he can make an impeachment referral to the House of Representatives. Congress has always been the most appropriate venue for a criminal complaint against Trump, and that alternative (dramatic though it may be) remains available.
Should Democrats assume control of the lower chamber in the November elections, such a referral would provide the perfect pretext for an impeachment vote many progressives have agitated for since Mueller’s appointment.
2. Trump might still be named as an unindicted co-conspirator
On occasion, prosecutors name individuals involved in a criminal conspiracy as unindicted co-conspirators, though these individuals are never subject to criminal charges. There aren’t categorical rules in this area. Individuals are most often made to accept such designations in exchange for immunity.
The U.S. attorney’s manual advises against the practice as a general, but not cardinal, rule.
“Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty,” the manual reads.
The practice is ill-favored in many quarters, as the unindicted conspirator is essentially accused of a crime by prosecutors or a grand jury but deprived of a venue to vindicate their innocence. An unindicted conspirator will never stand trial or present evidence in their defense, though the stench of criminality lingers.
Controversy notwithstanding, the practice does have some precedent in this context. Special prosecutor Leon Jaworski named President Richard Nixon as an unindicted co-conspirator during the Watergate investigation.
3. This could be part of an effort to coax Trump into an interview
Mueller’s private concession to Giuliani was not especially surprising. Legal scholarship is deeply divided as to whether a sitting president can be indicted, and guidance generated by the Justice Department’s Office of Legal Counsel (which practically but not formally binds the executive branch) concluded that a criminal case cannot be lodged against the president. In view of these facts, an indictment was always unlikely.
Therefore, Mueller surrendered very little to Giuliani in acknowledging that Trump would not be indicted. Still, it appears like a significant concession — which may be the special counsel’s real purpose. Now that the president and his lawyers are secure in the knowledge that Trump won’t be indicted, they may be more likely to agree to an interview.
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