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March 18, 2018

Following is my response to a blog seeking commentary today, slightly edited.


I think Trump’s latest tweet openly criticizing Mueller’s investigation is in itself an act of obstruction of justice and more, considering his station as a prospective criminal defendant as Mueller’s investigation continues to unexpectedly uncover financial crimes beyond the reach of traditional definitions of obstruction. I have been writing and predicting elsewhere that Mueller will not indict a sitting president but rather choose to submit his final report to the Congress for purposes of impeachment.

With new evidence of a much broader set of possible crimes and conspiracies beyond mere obstruction reaching from Facebook to joint money laundering with Russian oligarchs, I am ready to recant and now think that Mueller may try his luck with a submission of his findings to a grand jury and indict Trump and others along with submission of his report to the Congress.

There is dispute among us lawyers on both sides of the bench as to whether a sitting president can be indicted and a dearth of case law in support of one proposition or the other. I am on the side that says a president can be indicted while sitting because the Constitution does not prohibit it and we should uphold the rule of law and the constitutional application of the Equal Protection Clause on the basis of what you are alleged to have done rather than who you are.

In all events and in view of the cascading evidence that this is a RICO case what with all the racketeering going on in the Oval Office among Trump, his relatives, Russians and others in his inner circle, all illegal activities but unrelated directly with obstruction though ancillary to it given the majesty of the Oval Office, and since Mueller goes where the evidence leads him, I would not be surprised to see a grand jury indictment of Trump by either Mueller or the State of New York, or both, and if Trump is sitting, perhaps we can have the Supreme Court clarify us on the issue of whether a sitting president can be indicted. I think there is a good chance that the court will vote in the affirmative, and that a petit jury will subsequently convict, but time and further evidence of wrongdoing or lack thereof will tell.

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