Obama DOJ official: Trump can be indicted while in office

Donald Trump, Neal Katyal. (Photo illustration: Yahoo News; photo: Evan Vucci/APGary Cameron/Reuters)
Donald Trump, Neal Katyal. (Photo illustration: Yahoo News; photo: Evan Vucci/APGary Cameron/Reuters)

A former top official at the Justice Department argues that President Trump can yet be indicted for campaign finance violations as part of a possible decision to delay his trial until after he leaves office.

Neal Katyal, a former deputy and acting solicitor general under President Obama, told the Yahoo News podcast “Skullduggery that Trump allegedly directing payoffs to two women to silence them during the 2016 campaign was “very serious.” He said the payments could be grounds to challenge department legal opinions that conclude presidents cannot be indicted while in office.

“I think it’s a bad constitutional argument to say, ‘I’m the president. I get immunity from prosecution while I’m a sitting president,” Katyal said. If Trump were reelected in 2020, he wouldn’t leave office until after the statute of limitations on the alleged crimes had run out.

“That is literally putting the president above the law,” Katyal said. “That cannot possibly be the Constitution of the United States, which is built entirely on a rebellion against King George’s powers in this respect.”

Katyal spoke during a week in which federal prosecutors in New York revealed fresh evidence — from American Media, the parent company of the National Enquirer — corroborating claims by the president’s convicted lawyer, Michael Cohen, that Trump personally directed payoffs aimed at preventing the women from speaking during the 2016 campaign about alleged affairs with Trump.

Trump has denied involvement and suggested that the payoffs shouldn’t be considered a crime. Cohen was sentenced this week to three years in prison after admitting to campaign finance violations, lying to Congress and tax evasion.

In the “Skullduggery” interview, Katyal also contended that William Barr, Trump’s new nominee for attorney general, may well have to recuse himself from any involvement in the Russia investigation. Yahoo News reported last weekend that Barr had been previously recruited by Trump and White House officials to serve as the president’s chief defense lawyer in the case.

“It depends on what the facts are, but certainly if I interviewed for any position, any client, before I came into the Justice Department, I recused from all of those,” Katyal said. “I think that is a very, very standard practice.”

Download or subscribe on iTunes: “Skullduggery” from Yahoo News

According to sources, Barr was ushered by White House officials into a meeting with Trump in the late spring of 2017, and the president asked if he would be interested in becoming chief of his legal team. Barr demurred, citing other obligations.

The circumstances of those and other talks Barr had with White House officials have “to be made absolutely crystal clear” at his confirmation hearing, Katyal said. “And all of those people who have those conversations have to come forward.”

It would be a “very, very damaging thing to the impartiality of justice” to have the appearance that the president picked an attorney general because he knew the candidate’s views on an investigation targeting him, Katyal said.

Stormy Daniels puts her shoes back on after passing through a security screening at federal court in April. (Photo: Shannon Stapleton/Reuters)
Stormy Daniels puts her shoes back on after passing through a security screening at federal court in April. (Photo: Shannon Stapleton/Reuters)

The prevailing view among legal experts has been that, despite the evidence amassed by federal prosecutors in New York about the payoffs, Trump can’t be indicted because of two Justice Department legal opinions — in 1973 and 2000 — concluding that presidents are immune from prosecution while in office.

But Katyal said those opinions may not ultimately prevent an indictment of Trump. He said the opinions “don’t necessarily apply to a circumstance in which the actual crime may have involved him obtaining the presidency in the first place.” That point rests on the idea that disclosure of Trump’s alleged relationships with the two women — former Playboy model Karen McDougal and porn actress Stormy Daniels — could have seriously wounded Trump and cost him the presidency. Late in the campaign, Trump was already reeling from the disclosure of the infamous “Access Hollywood” tape.

But Katyal said a second, and arguably more important, point is that both Justice Department opinions focus their argument against prosecuting a sitting president on the burden a trial would have on his or her ability to perform the duties of the office. And, citing the conclusions of former Solicitor Generals Walter Dellinger and Ted Olson, Katyal said, “The constitutional arguments are really good against the trial. They’re not very good against the indictment piece.”

As a result, Katyal argued, the Justice Department could proceed with an indictment of Trump, but then put it on hold until he leaves office. Faced with that predicament, he said, Trump would have “one card to play … the same card that [Vice President] Spiro Agnew played in 1973, which is, ‘I’m facing serious jail time, I care a lot about myself’ … [and] say to prosecutors, ‘I’ll resign in exchange for no jail time.’”


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