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Giuliani says Mueller can’t indict. But it might go better for Trump if he does.

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Then-president-elect Donald Trump and former New York mayor Rudy Giuliani at the Trump National Golf Club in Bedminster, N.J., on Nov. 20, 2016. (Carolyn Kaster/AP)

“They can’t indict. Because if they did, it would be dismissed quickly. There’s no precedent for a president being indicted.”

So declared President Trump’s lawyer, former New York mayor Rudolph Giuliani, who eagerly recounted this week how Special Counsel Robert Mueller’s team has assured Trump’s legal team that Mueller won’t try to indict the president while he remains in office — a decision based, presumably, on a long-standing Department of Justice policy which holds that a sitting president can’t be indicted.

Plenty of legal scholars, including me, disagree with the basis of that policy: nothing in the Constitution bars indictment of a sitting president.

But even if Mueller opts to follow that questionable policy, it may not be the legal victory Giuliani seems to think it is. Trump might actually fare better if he’s indicted, and not impeached. Indeed, for Mueller, the question might only come down to the order, not the merits, of these actions. In other words, Trump could find himself both impeached and indicted. An impeachment can even make such an indictment more likely.

Under his mandate as special counsel, Mueller must follow the “rules, regulations, procedures, practices and policies” of the Justice Department. Arguably, that binds him to the department’s two Office of Legal Counsel memos, neither of which has the force of law, but which both support the principle that Trump can’t be indicted while in office. During the Nixon administration, OLC found that, despite acknowledging “troublesome implications” and “certain drawbacks,” “an impeachment proceeding is the only appropriate way to deal with a President while in office.” During the Clinton administration, OLC conceded that the question of indicting a sitting president was an open one, but ultimately concluded: “neither the text nor the history of the Constitution” is “dispositive” on this question. Despite this finding, OLC explained that no indictment of a sitting president should be sought due to “more general considerations of constitutional structure.” The OLC has a long history of supporting inherent executive powers, but this memo stood out as a superficial and self-serving (and mostly wrong) analysis: The Framers of our Constitution discussed presidential powers at length and in detail. There was no stated intent to create such


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