To indict, or not to indict: That is the question.
Not long after Michael Cohen, President Trump's former personal lawyer, pleaded guilty on Tuesday to eight counts of financial crimes, his attorney, Lanny Davis, posed a question to his Twitter audience: If Cohen broke election laws by secretly paying off two purported Trump paramours "in coordination with and at the direction of a candidate for federal office" with the "purpose of influencing the election," then "why wouldn't they be a crime for Donald Trump?"
Cornell professor Jens David Ohlin told Vox that Trump is "clearly guilty of violating campaign finance laws and also guilty of federal conspiracy as well. ... Normally, he would be indicted right away. But that won't happen only because he's the president." He's not the only one who said this on Tuesday; Fox News' John Roberts tweeted that people close to Trump told him, "Remember, the president cannot be indicted."
In 2000, the Office of Legal Counsel released a memo saying it agreed with a conclusion reached by the Justice Department in 1973, that the "indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." Neal Katyal, who served as acting solicitor general during the Obama administration, told CBS News in May "the basic point is that prosecutors should not be able to tie up the work of a president."
That's not to say that a president, after leaving office, couldn't be charged with wrongdoing, or that Congress couldn't revive the independent counsel statute and have that person file charges. Scott L. Frederickson, a former federal prosecutor, told CBS News that "a fundamental tenet of our political and criminal justice system is that no man is above the law," and because of that, "there is a very persuasive argument that can be made that you can indict a sitting president." Catherine Garcia