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Neal Katyal
THREAD RE INDICTING PRESIDENT. Trump’s defenses to campaign finance vio crumbling rapidly, partic after AMI admission. I predict the only thing he has left is idea sitting President cant be indicted. This thread fleshes out aspects of that, expands on NYT
Rudolph Giuliani’s assertion would mean the president must testify.
The New York Times The New York Times @nytimes
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
1.The 2 DOJ opinions saying sitting Presidents can’t be indicted have 3 limitations for Trump that mean they don’t necessarily protect him. And, even if DOJ policy means a sitting President can’t be indicted, that could actually hurt Trump in huge ways. Start with the 3 limits.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
2. First, they do not necessarily apply to crimes that go to obtaining Presidency itself. It is one thing if we're talking about unrelated crimes, like perjury in current office (which has chilling fx etc). But we may want to avoid incentivizing a world where the prize of winning
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
3. Presidency is a get out of jail free card for crimes you committed to get there. That’s the world of House of Cards, or certain less developed countries around the globe.
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Neal Katyal 12 Dec 18
Replying to @walterdellinger
4. Second, as has argued, there is a real difference between indicting a President and forcing them to go through trial. The indictment might be permissible–indeed, it might be required if a President doesn’t agree to voluntarily waive the statute of limitations
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
5. Third, the opinions don’t apply to state crimes, and it looks like some of the violations here may have state law counterparts. So, for example, the Attorney General of New York may be able to bring charges, DOJ opinions won’t protect Trump.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
6. Now, let’s say all that is wrong, and Trump can’t be indicted. As I said in NYT, there are several deep reasons why that is bad for Trump, too (which is part of the reason why Presidents and candidates outside of Nixon stay far away from questionable conduct).
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
7. The first thing is that it feeds impeachment, indeed, it may require it. If indictment is off the table, then impeachment must be on it. The whole idea of a sitting Pres can’t be indicted is b/c you have to go thru impeachment proceedings first and then try him for the crime.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
8. This means that Congress is under a constitutional duty to investigate every aspect of the allegations and commence a full-blown inquiry, precisely because the criminal process (which would be used in the case of every other American) cannot be used.
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Neal Katyal 12 Dec 18
Replying to @JerryNadler
9. That is hardly good news for President Trump. is a brilliant and dogged investigator, and he’s also a balanced one who hasn’t wanted to trigger impeachment unless he has to. Trump’s argument may mean Nadler has to.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
10. The second problem for Trump is that it intersects with his ability to stay silent. His lawyers keep talking about a “perjury trap” if he talks to prosecutors, claiming he has a 5th amendment right to avoid self incrimination.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
11. But if Trump can’t be indicted, then why should he be able to plead self-incrimination rights, which are after all about criminal liability?
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
12. It may be that the statute of limitations would still permit charge for perjury after he leaves office – but that is years later and not true should Trump win a second Term (I know, unlikely at this point, after all, even serving out his Term looking increasingly unlikely).
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
13. Trump’s arg would create a huge disparity w/all other fed employees—who would have to cooperate w/law enforcement or lose their job. Why should President be above that?
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
14. Brings me to most impt point: DOJ policy about sitting President indictment is generic, BUT Special Counsel regulations (which I had the privilege of drafting for DOJ as a young pup back in good ol' 1999) permit departures from DOJ policy.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
15. Mueller can seek a departure from DOJ policy, and obtain permission to indict Trump. Partic if Trump insists on not providing testimony, and not waiving statute of limitations, such a departure may be granted by Acting AG.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
16. Of course, we don’t even know who the Acting AG is, DOJ won’t tell us who is supervising investigation –Whitaker or Rosenstein? (Something of an aside here: that’s the way the Soviet Union operates, in America, we have an inalienable right to know who are governors are.)
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
17. Either Whitaker or Rosenstein may conclude that in America, no one is above the law, and authorize the indictment of Trump.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
18. If Mueller asks (and he may be the one making the ask for SDNY given his other investigations), Special Counsel regs say if Acting AG refuses to indict, must report it to Congress, both majority and minority parties.
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
19. Here is kicker #1:Special Counsel regs therefore put thumb on scale of Mueller asking Acting AG to indict, as that is the one way Mueller can be sure info he has uncovered in his investigation is provided to Congress. EVEN if Mueller thinks AG would say no, he may need to ask
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
20.Particularly in a world of witness tampering, fake AGs installed &now serious allegations of lying by President, and indeed, felonies, that may be Mueller’s best option. Key purpose of Special Counsel regs is shining sunlight on govt wrongdoing+avoid appearances of impropriety
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Neal Katyal 12 Dec 18
Replying to @neal_katyal
21. Kicker#2: Trump has to know all of this, at least if he has decent counsel. Trump may therefore conclude, as Spiro Agnew did before him, he has 1 card left to play: resign and plea to avoid jail time. END
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