There has been wide spread concern that even if Trump has committed a laundry list of crimes, that he could get away with them due to the longstanding DOJ policy to not indict a sitting President.
March 22, 2019

Ari Melber was joined by two extremely seasoned former prosecutors to discuss whether Donald Trump can actually be indicted. Benito Romano was totally on board with indictment, if charges were serious enough, but it took a little while longer to get Preet Bharara to agree.

MELBER: A lot of people are asking about whether a president could be indicted. Another person who held the same post that you each did, David Kelly, spoke that to that question on this show. Take a look.

KELLY (on video) It's a policy, it's not the law. Policies can be bent, policies can be broken.

MELBER: If you were back in that office, I'm not naming a president, say any president, President Johnson, President "x," would you have considered that a potential option on the table?


MELBER: Benito, do you agree?

ROMANO: Yes, and i'm not surprised at all to hear David say that.

MELBER: That's a count of two, if we're doing a head count, that, yes, it's a policy, but warranted, not naming a president, you think the office could move forward that way? Preet?

BHARARA: Yeah, so I'm going to disappoint some people. If the policy of the department, written down, even if you disagree with it, with respect to something so important like the immunity of a president of the United States, and you have a campaign finance violation that you think you can prove beyond a reasonable doubt if you went to trial against the president, against the backdrop of that policy, i'm going to be bold here and say, no, I would not indict that case.

ROMANO: But it sounds like you're exercising discretion.

BHARARA: Yeah, because of the policy. In part, because --

ROMANO: Yes, policy, it's a sound policy, but policy is --

BHARARA: if you're going to do something like indict the president of the United States, which is going to cause a rift in the country, which is going to cause some people to think that you're political and result-oriented, and you don't even have on your side the policy -- the stated policy of the Justice Department, I think you're going to cause a lot of people to lose faith in the decision, even if it's the correct decision, given that that policy is in place. We should change the policy.

ROMANO: But the fact that you can indict a president doesn't mean you actually indict the president. You may decide for all the reasons you just enumerated that you would exercise judgment against a prosecution, because it would tear the country apart, because the crime that you're prosecuting him for or whatever -- whoever the president is, is a relatively minor offense that it's not typically prosecuted in the federal system. Or some other reason. But you -- but it sounds like you're saying -- it sounds to me like you're saying that the policy will survive, as a policy, as long as you don't -- but you would not want to use it in this case, in the case you --

BHARARA: Yeah, I guess, depending on how you're parsing it, am I saying that I would behave in accordance with the policy, or would I, In consideration of the policy among other factors, choose in a campaign finance case not to indict the sitting president. And maybe that's more accurate. It's a little bit splitting hairs. But to the extent you may be correct, I would say if I did had proof beyond a reasonable doubt that the president had, like he likes to say he can, shot someone on fifth avenue in broad daylight and killed that person, then I might not abide by the policy.

ROMANO: Or instead of arguing over profits taken out of the Trump Hotel, it's a direct payment, like a bribe, you might feel differently. So I think we're not -- I think -- I think we're not in significant disagreement.

This was a great interview for many reasons, first being the caliber of the guests, but also for another reason which I think makes Ari a unique host: he doesn't try to fill dead space between questions. He lets pauses sit, allowing guests to collect their thoughts and respond. Viewers have time to pay attention, to absorb and to process what the guest is saying. And in this case, it allows the two brilliant guests, who were initially on opposite sides of the issue, to come together in the middle.

Well done, Ari.

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