“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” -- DOJ opinion, October 16, 2000
The Department of Justice has long held that it would be unconstitutional to criminally charge and prosecute a sitting president. The Constitution itself expressly states that “indictment, trial, judgment and punishment” can occur only after a president is convicted upon impeachment (Article 1, Section 3).
However, there is nothing to prevent a special counsel from investigating a president and leveling an accusation with no formal charge. The accusation could be completely manufactured and meritless. Proving it in a court of law would be irrelevant because impeachment is a political act, not a legal one.
A similar scenario has played out before. Independent Counsel Ken Starr investigated President Bill Clinton and leveled accusations of obstruction and perjury which then triggered Clinton’s impeachment. After he was acquitted and left office, Clinton was never indicted because prosecutors knew the case lacked the kind of proof needed in court.
So, is this what special counsel Robert Mueller and fired FBI Director James Comey have in mind? Are they now acting in concert to conjure a case of obstruction where none exists … for the sole purpose of precipitating possible impeachment proceedings? There is nothing to stop them from doing it.
It is a legitimate question, given their cozy relationship. They also have a motive to harm President Trump – retaliation for the firing of Comey.
Mueller Has Unfettered Discretion
Mueller, as special counsel, has unlimited latitude and unchecked discretion. Because he cannot indict the president, he is unconstrained by the usual burden of proof to which prosecutors must adhere in bringing a case.
The Washington Post reports that Mueller is investigating whether Trump obstructed justice during a White House meeting with Comey and in his subsequent termination. If the Post story is true, the president should be concerned that he may not be treated fairly. Why?
Is Mueller determined to exact retribution for the firing of his good friend? Will he be tempted to ignore the law, the paucity of evidence, and the normal requirements of proof in order to bring a specious case of obstruction against the president?
Because on its face, there is no obstruction of justice. Trump’s alleged statement to Comey bears no resemblance to the requirements of the statute. “Hoping” that “a good guy” will be cleared is not a “corrupt act” as the law defines it and as the U.S. Supreme Court interprets it. There must be a lie, threat or bribe. Comey alleges none.
Moreover, the act must be, as the high court said, “immoral, depraved or evil.” An expression of compassion is the antithesis of that. Therefore, under no legal interpretation could the president have obstructed justice.
Forgotten in all of this is the fact that the president denies he ever uttered the words ascribed to him. With no known witnesses, no reasonable prosecutor would ever consider bringing such a case based on one person’s word. It is the definition of reasonable doubt.
As for Comey’s firing, it is evidence of nothing. Comey admitted this himself when he wrote, “A president can fire an FBI Director for any reason, or no reason at all.” He reiterated the point during his Senate testimony.
Indeed, the president has the constitutional authority to end an investigation, which Comey also admitted, albeit reluctantly.
Even if Trump canned Comey out of frustration because the Director refused to tell the public that the president was not suspected of Russian collusion, it is still not the corrupt act required for obstruction of justice.
Why, then, would an obstruction investigation be undertaken at all?
Mueller Has Not Recused Himself
The special counsel’s failure to disqualify himself as the law demands invites suspicion that any desire to bring an obstruction case rests not in the law and the facts, but in something else.
As explained before, the special counsel statute requires Mueller to step down if he has a “personal relationship with any person substantially involved in the investigation or prosecution.” It then defines personal relationship as a “friendship… normally viewed as likely to induce partiality” (28 CFR 45.2).
The Mueller-Comey friendship is well-documented and indisputable. They have long been friends, allies and partners. Their bond is driven by a mentor-protégé relationship which makes the likelihood of favoritism and partiality self-evident.
Yet Mueller shows no sign of disqualifying himself from the case in which his close friend is the pivotal witness. It is an acute conflict of interest. Even the appearance of a conflict merits mandatory recusal.
Perhaps this means that the special counsel is not investigating an obstruction charge against the president, as the Post claims. Maybe the reporting based on anonymous sources is erroneous.
But if there is such a probe, then Americans are entitled to wonder why Mueller has not recused himself.
Is he determined to exact retribution for the firing of his good friend? Will he be tempted to ignore the law, the paucity of evidence, and the normal requirements of proof in order to bring a specious case of obstruction against the president - knowing full well that Congress might take it up as grounds for impeachment once the accusation is made?
It is also suspicious that the Acting Attorney General, Rod Rosenstein, has not recused himself. As Mueller’s boss, he oversees the investigation. If obstruction is, in fact, being examined, then Rosenstein is a key witness in the firing of Comey. It is inconceivable that Rosenstein could serve in the capacity of both prosecutor and witness without rendering the entire matter a charade.
Trump has referred to Mueller as “conflicted” and has questioned the objectivity of Rosenstein. But the president and his legal team have yet to mount a strong public case that both men should be allowed nowhere near the investigation.
If it becomes clear that obstruction of justice is the subject of the special counsel’s probe, President Trump should not fire Mueller and Rosenstein. Instead, he should demand they resign so that a fair and impartial special counsel can be appointed to preside.
Anything less might permit a false case of obstruction to trigger a debate in Congress over impeachment.
Gregg Jarrett joined FOX News Channel (FNC) in 2002 and is based in New York. He currently serves as legal analyst and offers commentary across both FNC and FOX Business Network (FBN).