"In terms of the question of whether Trump is a man who can be indicted for a crime, that answer has to be yes or else we don't live in a country of laws," Elie Mystal said.
December 15, 2018

There was an extended and spirited discussion on AM Joy of the issue of whether Trump can be indicted while in office, and the general conclusion was: We have to figure out a way to do it, or we're no longer a country of laws.

Speaking about the Cohen case and Trump's culpability, former prosecutor Mimi Rocah said, "I would bring that crime to the grand jury right now. I would do that. One other thing, I think both are right in terms of the yes or no, can he be indicted.

"As a practical matter, if I'm putting myself as a prosecutor now in the Southern District, I can't indict him. I have that OLC opinion. I have to follow it. Can that be challenged? Should that be revisited? Yes, absolutely for a lot of the reasons we're saying, especially with this president, where a lot of the rationales and justifications behind that OLC memo just don't make sense."

"This is my challenge with your opinion, Danny," Reid said. "If Donald Trump because of this memo cannot be indicted for committing crimes, if in fact he committed crimes, that means he could theoretically get away with murder. He could commit a crime, as long as he remains president, not be indicted for it. He could rob a bank, commit any crime he wanted. This would create a free-fire zone of criminality for any president if all they have do is run out the statute of limitations by staying in office."

"One solution is a sealed indictment that survives," Cevallos said. "The statute of limitations doesn't run in a conspiracy until the last day of the last act of the conspiracy. If President Trump were a one-term president, you're still within the statute for several of these and opinions and throw them out. Perhaps the strongest argument is the prosecution of a president for pre-office activities.

"If you waged war against some country, I don't think that's fair, that's a crime. We all agree official acts such as declaring war are probably immune from prosecution, so the strongest argument is pre-office activities. If you do believe the president can be prosecuted for those pre-office activities, maybe it's true you can indict him. It's a separate question on whether you can prosecute him while in office."

"But what about if the crimes involve crimes involving crimes to get you into office?" Reid said.

"If Trump is found to have committed crimes to be president, he should not be allowed to use the fact that he happens to be president to implicate him from the crime that got him to be president. It's a bit of a circle, but it should stop him at some point. the question is, at some basic level, this becomes a political question. Whether he can be indicted or removed or prosecuted. It all goes back down to when are 20-odd Republicans going to realize that the president is a criminal and something needs to be done about it?" Mystal said.

"The evidence is never. If we have a situation where Republicans say no matter what is found, we will always only protect this president, full stop, if the Justice Department says no matter what is found, we cannot prosecute this president.

"Have we not then a king?" Reid said.

"Yeah, then our system has broken down. That's part of what I was saying about maybe the OLC memo needs to be revisited in that context where we seem to have a Congress not willing to, you know, do its job," Rocah said.

"I think that is the question -- whether we have a president or a king," Reid concluded.

Can you help us out?

For nearly 20 years we have been exposing Washington lies and untangling media deceit, but now Facebook is drowning us in an ocean of right wing lies. Please give a one-time or recurring donation, or buy a year's subscription for an ad-free experience. Thank you.


We welcome relevant, respectful comments. Any comments that are sexist or in any other way deemed hateful by our staff will be deleted and constitute grounds for a ban from posting on the site. Please refer to our Terms of Service for information on our posting policy.