The Case for Indicting the President
By Michael Avenatti
Sol Wachtler, a former chief judge of the New York State Court of Appeals, once famously remarked that grand juries were so easily swayed that they would “indict a ham sandwich” if a prosecutor requested it. Many times, there is truth to this. But an indictment does not end the process of determining guilt or innocence. It begins it.
Following indictment, criminal defendants can question the validity of the charges, the methods used to acquire the evidence and the evidence itself. They can seek to dismiss a criminal indictment and, if unsatisfied with the ruling, appeal it all the way to the Supreme Court.
The grand jury system has been employed in hundreds of thousands of cases involving all manner of crimes committed by all manner of people. All, that is, except one: the president.
No grand jury has ever indicted a president, and consequently no court, let alone the Supreme Court, has ruled on the critical question of whether the Constitution allows a president to be indicted while in office. Legal scholars have opined on both sides of the issue, and Department of Justice attorneys have drafted memorandums arguing against indicting a sitting president. But none of these analyses establish definitive rules of law. It is time to clarify the issue.
Provided there is sufficient evidence to support an indictment of President Trump – and there are many indications that there is – the special counsel, Robert Mueller, who is investigating possible Russian interference in the 2016 election, and prosecutors from the United States Attorney’s Office for the Southern District of New York, who are investigating payments to my client, Stormy Daniels, and Karen McDougal, should present their evidence to grand juries. Those jurors, citizens of our communities, should then determine whether the evidence supports an indictment of Mr. Trump.
The fact that Mr. Trump is a sitting president should not derail a process that applies to all Americans, regardless of stature or station. He would still have the post-indictment relief available to all citizens, including the ability to challenge the constitutionality of the indictment. Some also argue that indicting the president would critically impair his ability to lead the country. But this is a White House already engulfed in chaos and daily distractions. And if the House were to initiate impeachment proceedings, it is hard to see how that process would be any less distracting than a criminal indictment.
Support for indicting a sitting president can be found in the Supreme Court’s 1997 unanimous decision in Clinton v. Jones, holding that a sitting president has no immunity from civil litigation in federal court from acts done before taking office and unrelated to duties as president. That decision later famously led to President Bill Clinton’s sworn deposition testimony, which in turn served as the basis for impeachment charges.
On the other side of the argument, Assistant Attorney General Randolph D. Moss wrote a memorandum opinion in 2000 analyzing the constitutionality of indicting a sitting president. This followed a 1973 analysis by Assistant Attorney General Robert G. Dixon Jr. that examined the same issue in connection with the Watergate scandal. Both concluded that the Constitution makes a sitting president immune from indictment.
But other constitutional scholars have reached the opposite conclusion. Ronald Rotunda, who was part of the Watergate investigative team and served as an adviser to Kenneth Starr when he was the independent counsel investigating President Clinton, concluded in 1998: “It is proper, constitutional and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties. In this country, no one, even President Clinton, is above the law.” Mr. Starr himself said this week that he believes the Constitution allows for the indictment of a sitting president.
But however well intentioned and instructive those memorandums and analyses might be, they do not begin to approach the weight of an actual Supreme Court decision. Our democracy and our belief in the rule of law for all, including presidents, should not rest on such a soft foundation.
Instead, if the facts and evidence are adequate for indictment, then prosecutors must be blind to the officeholder’s position – especially so in this case because, unlike in President Clinton’s case, the investigations relate to how Mr. Trump won the election. Ultimately, the question would almost certainly be decided by a panel of judges previously confirmed pursuant to the Constitution – either in the courts of appeals or, more appropriately, the Supreme Court.
Which brings us to the question of who on the Supreme Court should be allowed to review an indictment against the president. Last week, during his confirmation hearing, Judge Brett Kavanaugh refused to commit to recusing himself in the event he was confirmed and a case involving the investigation of Mr. Trump were to reach the Supreme Court. He took this position despite the fact that his strong views in favor of presidential immunity are outside the legal mainstream and he was chosen by Mr. Trump during known inquiries into the conduct of the president and his campaign. This is wrong.
Should Mr. Trump be indicted and in the event that the case reaches the Supreme Court, Judge Kavanaugh’s recusal should be mandatory. The American public’s view of impartiality of the rule of law and of the Supreme Court hangs in the balance.
–(Michael Avenatti is the lawyer for Stephanie Clifford, also known as Stormy Daniels, in her lawsuits against President Trump and his former personal lawyer, Michael Cohen.–(Courtesy–New York Times)