Bill Barr’s DOJ won’t indict Trump while he’s in office — but 27 Democratic AGs can: Ex-Obama lawyer
Donald Trump (Photo: Gage Skidmore/Flickr)

Former special counsel Robert Mueller decided he could not indict President Donald Trump while he is in office, but that is not the only mechanism for legal accountability.

Former Obama administration acting Solicitor General Neal Katyal explained to MSNBC anchor Lawrence O'Donnell on Thursday how there is another option.

"Last night a former Watergate assistant special prosecutor, Jill Wine-Banks, made a point about indicting a president that had not occurred to me," O'Donnell noted, introducing a clip.

"The evidence of all the elements of the crime has been established and were he not protected by the Office of Legal Counsel -- an opinion by the way that I think is flawed constitutionally and legally -- I think it’s incorrect. It’s time for someone to challenge it or change it. It may take a state prosecutor indicting the president to take it to the Supreme Court for a decision and whether you can cover up your own crime and get away with it," she noted.

The host asked Katyal for his legal analysis.

"Now there is this Office of Legal Counsel opinion that is being talked about, that Mueller is talking about, that’s a federal opinion. That’s about federal prosecutions, but in our constitutional system, we also have a separate set of prosecutors, state prosecutors, and they aren’t bound in any way, shape, or form by the office of legal opinion," he explained.

There are currently 27 Democratic Party state attorneys general.

"Now, I expect the president, were he indicted by a state prosecutor, to make the same kinds of arguments that he’s been making all along, 'he’s immune, he’s the king' and so on and I think that those arguments will get somewhere when it comes to the trial of a sitting president, but I don’t think it’s going to get to the indictment part. That is, I think that the best arguments, in terms of constitutional law, say you can indict a sitting president at the state level," he explained.

"You may not be able to try them -- for I think important reasons like 1861 I don’t think you’d want South Carolina to be able to force Abraham Lincoln and haul him in to court to face a criminal trial, because after all, he has the nation’s business to attend to and a war to prosecute -- but I think the indictment could happen and so I suspect if there are state charges that are viable, that those can and will be brought against the president," Katyal concluded.

Katyal was one of two guests interviewed by O'Donnell who explained how Trump can be indicted right now. The other was Ronald Reagan's former Assistant Attorney General for the criminal division, Bill Weld, who said he would've indicted Trump under seal.