Fox News legal analyst and former Judge Andrew Napolitano on Thursday laid out the case that former special counsel Robert Mueller was wrong to claim that the president cannot be criminally charged while still in office.
As the former judge noted in his opinion piece at FoxNews.com, “We learned from Mueller’s report to Barr that while there is evidence of members of the Trump campaign collaborating with the Russians, there is not enough evidence to establish a conspiracy. We also learned that Trump personally engaged in 10 or 11 — depending on how you count them — efforts to interfere with Mueller’s investigation.”
“Each of these attempts at interference constitutes the crime of obstruction of justice. That crime consists of any material attempt — whether successful or not — to impede a federal investigation for a corrupt purpose,” he explained.
“Yet, when the subject of a criminal investigation orders those who work for him to lie to FBI agents or to falsify documents that are soon to enter FBI hands — as Mueller found Trump did — that constitutes an attempt to interfere with a federal investigation for a corrupt purpose,” he elaborated before stating for the record: “The corrupt purpose is not the vindication of constitutionally protected rights. Rather, it is keeping law enforcement away from the person who ordered the deceptions.”
With that in mind, the conservative judge took up legal guidance given to Mueller — and supported by Attorney General Bill Barr — that he was hindered from indicting a sitting president by citing how the investigations against former Presidents Richard Nixon and Bill Clinton were handled.
“We know that presidential obstruction of justice is an impeachable offense because both President Richard Nixon and President Bill Clinton — each of whom instructed aides to lie to FBI agents and falsify evidence — were charged with it,” he wrote.
“Mueller said publicly, however, that the reason for his personal hesitation in charging the president is an October 2000 DOJ legal memorandum. It offered that charging a sitting president with a crime would impair his ability to perform his constitutional duties and thus ought not to be undertaken,” he continued. “But the 2000 opinion is just one of three that the DOJ has commissioned in the modern era. Of the three, two say the president ought not to be charged while in office, and one says that he may be charged. None says he cannot be charged.”
As the judge notes, “Federal prosecutors threatened to indict incumbent President Clinton for obstruction of justice on the day after he left office. Clinton chose to address the threat while still in office and directed his lawyers to engage in plea negotiations with prosecutors. They negotiated a plea deal in which he pleaded guilty before a federal judge Clinton had appointed to the bench.”
Napolitano then posed the question: “What do you call a threat by federal prosecutors to seek an indictment of the president, and subsequent plea negotiations?”
“Answer: A prosecution of the president,” he concluded.
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