President Donald Trump’s lawyer Rudy Giuliani made the rounds to cable and print news outlets on Wednesday, telling the press he’s been informed by special counsel Robert Mueller’s team that as president, Trump cannot be indicted.
“All they get to do is write a report,” Giuliani told CNN. “They can’t indict. At least they acknowledged that to us after some battling, they acknowledged that to us.” He then told NBC News that the Trump team would like it to be the fairest report possible. “But even if it isn’t, we’re prepared to rebut it in great detail, so we’d like them to do it,” he said.
Mueller’s team has not said anything publicly about this conversation. However, none of this means that Trump is out of hot water.
The fact that Giuliani said he had to push Mueller’s team to admit that Trump can’t be indicted is eyebrow-raising in and of itself. This indicates that, at the very least, Giuliani may believe there’s a possibility Trump has actually done something that could get him indicted.
“It’s pretty incredible that we are having a conversation involving law enforcement officials about whether Trump can be indicted,” Neal Katyal, a Supreme Court lawyer who has argued against the travel ban, tweeted Wednesday night. “That’s astounding.”
It’s also not entirely clear whether a sitting president can in fact be indicted. Sen. Richard Blumenthal (D-Conn.), who previously served as the attorney general of Connecticut, told CNN that a battle over whether Mueller could indict could go to the Supreme Court.
“It’s an issue that has never been resolved,” Blumenthal said. “I happen to think that he could be indicted, even if the trial is postponed.”
Deputy Attorney General Rod Rosenstein, who oversees Mueller, dodged a question at a Freedom Forum Institute event on May 1 about whether Trump could be indicted. He said that the DOJ has in the past said that a sitting president couldn’t be indicted.
“I’m not going to answer this in the context of any current matters, so you shouldn’t draw any inference about it,” Rosenstein said at the event. “But the Department of Justice has in the past, when the issue arose, has opined that a sitting president cannot be indicted. There’s been a lot of speculation in the media about this, I just don’t have anything more to say about it.”
Ultimately, if Mueller concludes that Trump’s actions would get an average citizen indicted, but decides he doesn’t have the authority to actually indict, Trump’s situation would still be dire. A damning report from Mueller’s team would, at the very least, be a political disaster.
Assuming such a damning report would come ahead of this year’s midterm elections, the Republican-controlled Congress would be in the awkward position of having to determine whether to impeach and remove the president of their own party.
That’s a sticky position for Republicans. Their choice would either alienate the party’s base, who would be mad that they were going after a home-team president, or enrage Democrats and independents, who could flock to the polls in droves to punish GOP lawmakers.
In the end, neither result is good for Republicans’ midterm hopes.