President Donald Trump‘s attorney Rudy Giuliani said Wednesday that Special Counsel Robert Mueller told him that he cannot indict Trump because he’s a sitting president. While this may seem like a good thing for Trump because it would keep him out of trouble for now, it does not clear him of any wrongdoing, according to Georgetown Law Professor Neal Katyal.
Katyal, who wrote the very special counsel guidelines that Mueller is following, noted in a Wednesday interview with MSNBC’s Ari Melber that saying Trump cannot legally be indicted is very different from saying he didn’t do anything wrong.
Indeed, Katyal said, “It sure suggests that he has.” Otherwise, he said, Mueller wouldn’t have said it that way.
Furthermore, Katyal said that while DOJ policy says that a sitting president cannot be indicted, Mueller has the ability to ask Acting Attorney General Rod Rosenstein for permission to act outside those guidelines and indict the president. It’s possible that Rosenstein said no, which would support the idea that Mueller cannot indict Trump, but it wouldn’t quite end there.
“It would be something we learned about,” Katyal said. “If the Acting Attorney General interferes with the Special Counsel in any way,” he noted, “he’s got to report that to Congress.”
This means that if Rosenstein says no to Mueller about something, including indicting Trump, this would be made known.
Another issue that Katyal raised was that we don’t know what the context was when Mueller supposedly said he can’t indict Trump. If the president was planning on pleading the Fifth, Katyal said, Mueller may have taken the possibility of indictment off the table so that there would be no self-incrimination. If Trump can’t be charged, he has no basis for Fifth Amendment protection.
Basically, Katyal is saying that while this news may seem good for Trump on the surface, it really isn’t.
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