Now that Michael Cohen has placed President Donald Trump squarely in criminal crosshairs, a constitutional crisis appears to be looming: if there is evidence that Trump committed a crime, can he be indicted while in office?
This isn't settled law, though most legal analysts conclude that an indictment is unlikely - the Justice Department has had an internal policy since 1973 that sitting presidents cannot be indicted. But there is another policy that can use the 1973 Office of Legal Counsel opinion to its advantage and achieve the same effect as an indictment without having to issue one: the special counsel regulations under which Robert Mueller is appointed.
The special counsel does not act independently; he is supervised by the attorney general (or, under the current circumstances, presumably the acting attorney general - though that itself has raised some problematic legal questions). Specifically, while Mueller does not have to report day to day to the attorney general, he has the power to approve any "significant steps" taken in the investigation or to overrule them. This authority has received intense scrutiny ever since Mueller's appointment because of the power it can wield over the scope and effect of the special counsel's investigation.
Importantly, the attorney general cannot deny the special counsel's requests based on a mere whim. The regulations state that the attorney general must give "great weight to the views of the Special Counsel," and only if the attorney general concludes "that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued" may the latter's request be denied. If this happens, the attorney general is required to report a description and explanation of the denied actions to the House and Senate judiciary committees at the conclusion of the special counsel's investigation.
And there is the rub. If, at the end of his inquiry, Mueller believes that he has gathered enough evidence that would warrant charging Trump with one or more crimes, he can provide that evidence in his final report to the attorney general, along with a recommendation that the president be indicted. The attorney general could approve that recommendation, in which case such an indictment would become public (with its constitutionality litigated in court). But the attorney general could just as legitimately deny the requests based on the internal 1973 policy that suggests an indictment is "inappropriate and unwarranted under established Departmental practices."
Precisely because the only remedy might ultimately be a political one - impeachment and removal by Congress - Mueller must ensure that the fruits of his investigation don't get buried. In 1974, Watergate special prosecutor Leon Jaworski faced a similar predicament when he uncovered evidence of crimes committed by then-President Richard M. Nixon. His solution was to pass off his findings to Congress and create a "road map" for potential impeachment proceedings. By recommending an indictment that will be overruled, Mueller could likewise automatically pass the baton to Congress and allow the political process to pick up when the criminal process can go no further.
- Asha Rangappa is a lecturer and a former FBI agent.
