Now that Michael Cohen has placed President Donald Trump squarely in criminal crosshairs, a constitutional crisis appears to be looming: If there is evidence that Trump committed a crime, can he be indicted while in office?
This isn’t settled law, though most legal analysts conclude that an indictment is unlikely — the Justice Department has had an internal policy since 1973 that sitting presidents cannot be indicted. But there is another policy that can use the 1973 Office of Legal Counsel opinion to its advantage and achieve the same effect as an indictment without having to issue one: the special counsel regulations under which Robert Mueller is appointed.
The special counsel does not act independently; he is supervised by the attorney general (or, under the current circumstances, presumably the acting attorney general — though that itself has raised some problematic legal questions). Specifically, while Mueller does not have to report day to day to the attorney general, he has the power to approve any “significant steps” taken in the investigation or to overrule them. This authority has received intense scrutiny ever since Mueller’s appointment because of the power it can wield over the scope and effect of the special counsel’s investigation.
Importantly, the attorney general cannot deny the special counsel's requests based on a mere whim. The regulations state that the attorney general must give "great weight to the views of the Special Counsel," and only if the attorney general concludes "that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued" may the latter's request be denied. If this happens, the attorney general is required to report a description and explanation of the denied actions to the House and Senate judiciary committees, including their ranking members, at the conclusion of the special counsel's investigation.
And there is the rub. If, at the end of his inquiry, Mueller believes that he has gathered enough evidence that would warrant charging Trump with one or more crimes, he can provide that evidence in his final report to the attorney general, along with a recommendation that the president be indicted. The attorney general could approve that recommendation, in which case such an indictment would become public (with its constitutionality litigated in court). But the attorney general could just as legitimately deny the requests based on the internal 1973 policy that suggests an indictment is "inappropriate and unwarranted under established Departmental practices."
But this action would automatically trigger the reporting requirement to Congress.
In fact, that might be the only way to guarantee a report goes to Capitol Hill. There is no other requirement for the attorney general to provide Mueller’s final report to Congress — the regulations require reports only on requests that are denied. If Mueller does not recommend indicting the president and the attorney general agrees with that decision, there is no guaranteed mechanism for that information to become public.
That might happen. Because of the 1973 opinion, Mueller, as someone who operates “by the book,” may not recommend an indictment, even if he believed one was warranted. But Mueller is also a career prosecutor who believes in justice and accountability. Cohen’s plea, and the language used by the U.S. Attorney’s Office for the Southern District of New York in its sentencing memo for Cohen, makes clear that there is enough evidence to directly implicate Trump in at least one crime — a campaign finance felony. Depending on what Mueller has gathered in his obstruction investigation and in the Russia collusion inquiry, there may be others. But if the Justice Department chooses not to indict Trump and the evidence Mueller has turned up doesn’t reach Congress the president would effectively receive immunity for his crimes as long as he remains in office.
By contrast, in creating a conduit under the Justice Department’s existing rules for his findings to reach Congress, Mueller would open the door to several alternatives besides a criminal indictment. Once the House Judiciary Committee is under Democratic control in January, for example, it could release the report of Mueller’s findings to the public. It could also call Mueller to publicly testify to his findings — and specifically what he believes would be indictable offenses — upon the conclusion of his investigation. At that point, members of Congress and the American public could make their own judgments about whether the evidence is enough to render Trump unfit for office.
Precisely because the only remedy might ultimately be a political one — impeachment and removal by Congress — Mueller must ensure that the fruits of his investigation don’t get buried. In 1974, Watergate special prosecutor Leon Jaworski faced a similar predicament when he uncovered evidence of crimes committed by then-President Richard M. Nixon. His solution was to pass off his findings to Congress and create a “road map” for potential impeachment proceedings. By recommending an indictment that will be overruled, Mueller could likewise automatically pass the baton to Congress and allow the political process to pick up when the criminal process can go no further.
Asha Rangappa is a senior lecturer at the Jackson Institute for Global Affairs at Yale University and a former FBI agent.