Mueller may have to grant Trump immunity - but could still prosecute him: law professor
Special Prosecutor Robert Mueller and President Donald Trump (Photos: Screen capture and AFP)

Pace University professor of law and author Bennett Gershman said in an essay published at The Daily Beast on Sunday that Special Counsel Robert Mueller may have to grant President Donald Trump immunity in order to compel his testimony before a grand jury.

However, Gershman explained, the president would not be immune from any charges at all in the multiple federal investigations against him, just those resulting or arising from his testimony.

While the Mueller investigation has been largely resistant to leaks thus far, it's clear that at least one grand jury has been empaneled, which Gershman called "a significant development by itself; prosecutors don’t ordinarily convene grand juries unless there is a compelling reason to do so."

And while we know some of the broad outlines of the inquiries into Trump's connections to Russia, his byzantine tangle of financial connections to Russian banks, criminals and wealthy oligarchs, we do not know which individuals have been granted immunity, who is cooperating with the prosecution and how many people have been questioned by federal investigators.

"But clearly the most critical witness of all, and a likely target of the investigation, is Trump himself. As the grand jury investigation accelerates, and it focuses on Trump’s role, he will almost certainly be subpoenaed, and his testimony demanded," Gershman said.

While his cabal of attorneys may fight the order, Mueller could try the unusual prosecutorial maneuver of granting Trump immunity.

Gershman said, "If Trump and the prosecutors try to negotiate some compromise, it is conceivable that the prosecutors will grant him immunity and thereby compel him to testify. As long as the prosecutors are careful, giving Trump immunity will not necessarily have any significant legal impact on the investigation, or the ability of prosecutors to charge Trump with crimes."

Legal immunity is not a blanket panacea against all charges in a legal investigation, but merely protects the witness from charges resulting from crimes revealed by their testimony.

"But assuming that proof of Trump’s criminal offenses has already been discovered—such as proof of his obstruction of justice in seeking to halt the Flynn investigation or firing Comey -- then despite giving him immunity, that proof can legally be used to prosecute him. And despite immunity, Trump can be prosecuted for perjury for giving false testimony," Gershman said.

And while the grand jury may succeed or fail at the charges stated out its outset -- collusion with Russian to meddle in the outcome of the 2016 election -- it is much more likely that the crimes prosecuted by Mueller will be those crimes that were committed to cover up evidence, stifle the investigation or interfere with the course of justice.

"And if Trump becomes a grand jury witness, and given his abundantly documented penchant for lying, brazenly, and almost reflexively, it is very likely that the prosecutors will be able to pose clear, specific, and non-ambiguous questions to Trump of which he might claim an inability to remember, but which he also might answer falsely and thereby commit a felony," Gershman said.

He concluded, "Whether Trump will be indicted, for what, and the legal consequences, are not clear or predictable. Indeed, the question of whether a sitting president can be prosecuted at all has been hotly debated. Whether Trump is able to claim some type of presidential immunity from prosecution may ultimately have to be ruled on by the Supreme Court, as was the case with Nixon. The court did hold in the Paula Jones civil lawsuit that Clinton enjoyed no immunity from civil liability for unofficial acts committed before he became president. The lesson in that case is that no person is above the law, even a president. Whether that lesson applies to Trump may likely be decided soon."