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Three Former Chiefs of SDNY Office Investigating Hush Payment Say Sitting President Can Be Indicted


Three former top prosecutors who worked in the U.S. Attorney’s Office for the Southern District of New York all agree that a sitting president can be indicted, a view that is perhaps shared at their former haunts. Joining MSNBC’s Ari Melber on The Beat were former SDNY U.S. Attorneys Preet Bharara and Benito Romano. Their old office is the one that investigated—and convicted—Michael Cohen for hush payments he arranged to women, allegedly at the direction of President Donald Trump.

Melber introduced the question of whether a president could be indicted by playing a clip of former SNDY U.S. Attorney David Kelley explaining that the no-indict stance is a policy not the law. This is in reference to current Justice Department policy that says presidents should not face prosecution while in office.

“Policies can be bent, policies can be broken,” he said. He also said that he would have considered indicting a sitting president. Melber kicked it to Romano, who agreed.

Bharara didn’t like the idea, especially not on the campaign finance case, but he also said that the SDNY could override the policy if it wanted to. Bharara has recently been on a tour promoting his book Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law. Bharara draws from his experiences working at the SDNY, which he says is the “best place he’ll ever work,” and covers topics like “the principles of interrogation” and “snitches” (or people who flip, like Michael Cohen). The latter has certainly garnered a lot of attention in recent days as people question the credibility of those who flip on the big fish and/or plead guilty to lying while doing so.

Bharara, you may remember, was one of the U.S. Attorneys Trump fired after he took office. Bharara would go on to say he once considered recording a call with the president but ultimately decided against it.

He determined it was “a bridge too far.”

“It’s something we discussed and talked about, did not think it was appropriate, did not think it was the right thing to do,” Bharara said. “So we didn’t do it.” Bharara has also said that he believes if he had stayed on at SDNY, Trump would have asked him “to do something inappropriate.” The kind of thing he is talking about was alleged in the context of Trump allegedly asking then-acting Attorney General Matthew Whitaker to look into replacing SDNY U.S. Attorney Geoffrey Berman.

[Image via MSNBC screengrab]

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Matt Naham is the Senior A.M. Editor of Law&Crime.