No matter what President Donald Trump and his defenders say, the only reason he wasn’t indicted by a federal grand jury for his actions in the 2016 election and his repeated attempts to obstruct the investigation conducted by Special Counsel Robert Mueller is because there’s a memo from the Department of Justice’s Office of Legal Counsel that says a sitting president can’t be indicted.
But that prohibition on indicting a president is at the federal level, and it’s starting to become clear that states such as New York may be actively seeking to indict Trump at the state level. And they have every legal right to do so.
According to former Obama administration Solicitor General Neal Katyal, the states are where the action will be in the coming months, until Democrats in the House begin an impeachment inquiry.
Appearing on “The Last Word With Lawrence O’Donnell” recently, Katyal noted that a state (and 27 states have a Democratic attorney general) can do as it pleases when it comes to indictments:
“Now there is this Office of Legal Counsel opinion that is being talked about, that Mueller is talking about, that’s a federal opinion. That’s about federal prosecutions, but in our constitutional system, we also have a separate set of prosecutors, state prosecutors, and they aren’t bound in any way, shape, or form by the office of legal opinion.”
If that happened, Katyal continued, Trump would likely say the same restrictions apply at the state level as do at the federal:
“Now, I expect the president, were he indicted by a state prosecutor, to make the same kinds of arguments that he’s been making all along, ‘he’s immune, he’s the king’ and so on and I think that those arguments will get somewhere when it comes to the trial of a sitting president, but I don’t think it’s going to get to the indictment part. That is, I think that the best arguments, in terms of constitutional law, say you can indict a sitting president at the state level.
“I think the indictment could happen and so I suspect if there are state charges that are viable, that those can and will be brought against the president.”
Don’t be the least bit surprised if states such as New York, California — and any other where a Trump business entity is located — do indeed indict Trump. And once he’s indicted at the state level, that would also help bolster the argument that he needs to be impeached.
Trump is not in the clear legally. Not even close.
Here’s Neil Katyal on MSNBC: