I agree.
And Ken Starr agrees from your NYT article
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties,
I had been hearing that this question posed about indictments as being unsettled law…
It is further described here via Neal Katyal @neal_katyal - Lawyer who has had many supreme court cases and former Principal Deputy Solicitor General under Obama - wiki Neal Katyal - Wikipedia)
He’s stating (and sorry if this falls out of the only credentialed journalists are preferred here, but I would rely on his opinion, given his background.)
THREAD. WHAT TO MAKE OF GIULIANI’S CLAIM THAT MUELLER SAID HE CAN’T INDICT TRUMP.
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Don’t forget the context: it’s pretty incredible that we are having a conversation involving law enforcement officials about whether Trump can be indicted. That’s astounding.
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And don’t forget the source: Giuliani. He’s not exactly a stickler for details.
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Context may really matter here. Why did Mueller say this? Is it because Trump’s lawyers said they were thinking of taking 5th Am priv against self incrimination, and Mueller said there can be no “incrimination”?
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If so, the DOJ policy against indictment of a sitting President may actually hurt Trump, and be an argument against his ability to stay silent. It might be a way to ferret out truth.
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The reporting is clearly incomplete. The Special Counsel regs, which I drafted, do NOT say DOJ policy must always be followed. They say that a Special Counsel can ask Acting AG (Rod Rosenstein) for permission to depart from DOJ policy and rules.
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If Mueller has the goods on Trump, as I’ve said before, I think he will ask Acting AG to indict. The regs put a thumb on the scale in favor of Mueller doing so. If Rosenstein says no, it triggers a report to Congress-both majority and minority parties.
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Otherwise, there is not necessarily such a report about these matters. The Special Counsel regulations dispensed with the “final report” requirement in the Independent Counsel Act. Reports are permissible, but not mandatory (but they are when Special Counsel overruled).
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So I do not see this story as good for President Trump, in any way. END