It took a full 24 hours for President Donald Trump to respond to the news that Michael Flynn, his former national security adviser, would cooperate with special counsel Robert Mueller’s investigation as part of a plea deal. But eventually, Trump took to Twitter and claimed he “had to fire General Flynn because he lied to the Vice President and the FBI.” Observers immediately pointed out that Trump had just implied he was aware that Flynn lied to the FBI when the president told James Comey, who met with him the day after Flynn resigned, that he hoped the then-FBI director would be “letting Flynn go.” To some, this strengthened the case against Trump for obstruction of justice.

Trump’s private lawyer, John Dowd, said on Monday morning that he had authored the tweet, but insisted it was “ignorant and arrogant” to say the tweet admitted obstruction. Dowd then went one step further, claiming the president “cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”


POLITICO Magazine asked law school professors, practicing attorneys and other legal experts to analyze Dowd’s claims. From a legal standpoint, can the president obstruct justice? If he can, does it constitute obstruction of justice for the president to ask his FBI director to go easy on an aide he knew had lied to the FBI? Here is what the experts think. –Taylor Gee



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‘There is mounting evidence that the president has been acting with improper and therefore criminal intent’

Norm Eisen, chief White House ethics lawyer from 2009 to 2011; Noah Bookbinder, former federal corruption officer; Barry Berke, lawyer specializing in white-collar criminal defense

Dowd’s possible admission that the president knew that Flynn had committed a crime when he fired him is significant because it would be powerful evidence in a potential obstruction case. According to former FBI Director James Comey’s sworn testimony before Congress, the president told him a day after Flynn resigned, “I hope you can see your way clear to letting this go, to letting Flynn go.” Trump denies this, also tweeting this weekend, “I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!” But Comey has contemporaneous notes to back up his version of events—and he’s been under oath.

One of the key elements of obstruction of justice is corrupt intent—for the president to have obstructed justice, he would have had to act for a wrongful reason. If it’s true the president knew Flynn had lied to the FBI, it undercuts the suggestion that the president’s alleged statement to Comey (and subsequent actions, including the firing of Comey) were done for innocuous reasons. Instead, the president’s knowledge of Flynn’s criminal culpability—along with the lengthy pattern of obstructive conduct that now reportedly includes attempts by the president to get members of Congress to halt their own investigations—suggests the opposite. There is mounting evidence that the president has been acting with improper and therefore criminal intent to impede the investigation of Flynn and of possible Trump campaign collusion with Russia.

That may be why the president’s legal defense has suddenly shifted from a claim that President Trump did not obstruct justice to an argument that under the Constitution, No president may obstruct justice. This assertion has been made before—most prominently by Harvard Law School professor Alan Dershowitz—and it is wrong, as we detailed in our recent report for the Brookings Institution.

The courts have recognized repeatedly that a government official’s clear legal authority to take some action does not immunize that official from prosecution for crimes relating to the exercise of that authority. To take just a few examples, in U.S. v. Smith, several members of the Los Angeles Sheriff’s department were convicted on obstruction charges for relocating and restricting access to a prisoner—conduct that would have been legal but for its purposeful interference with an FBI investigation into civil rights violations at Los Angeles County jails. In U.S. v. Baca, the court explained that “[a] local [police] officer may not use [his] authority to engage in what ordinarily might be normal law enforcement practices, such as interviewing witnesses, attempting to interview witnesses or moving inmates, for the purpose of obstructing justice.” And in U.S. v. Mitchell, the U.S. Court of Appeals for the 4th Circuit upheld the conviction of two brothers who accepted a payment of $50,000 to convince their uncle—a congressman—to stop a congressional investigation into a company’s eligibility for a government program.

The principle animating these cases is perhaps easiest to understand in the context of bribery, which by its nature requires that an official agree to take some action he or she is empowered to do in exchange for personal gain. The crime of obstruction of justice can also involve official acts; that’s why the official’s intent matters. It’s in the president’s power to fire his FBI director, for instance. But he or she could be prosecuted for bribery if he/she accepted a large bribe from a mobster to fire an FBI director investigating the man.

Dowd’s statement is apparently premised in part on a spurious “unitary executive” theory, which understands the president’s Article II powers to give him completely unchecked authority to direct, control and supervise inferior officers and agencies that exercise discretionary executive power. This view has been widely rejected, including by the Supreme Court. In Morrison v. Olson, the court upheld the constitutionality of a statute authorizing the appointment of an independent counsel who were appointed by a three-judge panel and removable by the attorney general, not the president, and only for good cause. That is a far cry from the absolute right to direct and control all executive branch personnel that Dowd’s argument posits.

It is also critical to distinguish the argument Dowd is making from another—that the president cannot be indicted for any crime, much less obstruction of justice. Whether a sitting president may face a criminal indictment is an open question; however, there are good reasons to be skeptical of broad invocations of presidential immunity. Previous investigations of presidents—including Watergate, Iran Contra and Whitewater—have proceeded under the assumption that the president could be indicted. And in past cases that have involved subjecting the president to judicial process, the Supreme Court has consistently ruled that due deference to the constitutional responsibilities of the president requires only special accommodation, not absolute immunity.

It is important to remember, too, that twice in our nation’s history, presidents have faced the prospect of removal from office for obstructing justice. President Nixon chose to resign after the House Judiciary Committee reported impeachment charges against him including the allegation that Nixon “prevented, obstructed, and impeded the administration of justice” by, among other things, “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” President Clinton was impeached by the full House (but not convicted) on a count of obstruction of justice for engaging “in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.” It is clear from both of these precedents that a president may be held to account for obstructing justice, at least by Congress.

Finally, Dowd’s assertion that the president cannot obstruct justice is wrong for one more reason. Any claim that the president is above the law is repugnant to the basic principles of our democracy. The president’s lawyer is arguing that no one—not a prosecutor and not Congress—can hold the president accountable for obstructing justice because the president by definition cannot obstruct. That argument contemplates a presidency of essentially unchecked power, a supremely dangerous proposition and one that is not consistent with American history or values.



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‘Offering advice on prosecutorial discretion cannot amount to obstruction’

Eugene Kontorovich, professor at Northwestern University School of Law

While I would not rule out the possibility that some presidential actions could constitute obstruction of justice, offering advice, or even direction, on the exercise of prosecutorial discretion and law enforcement activities could not amount to obstruction. As chief executive, the president is the supreme law enforcement official in the country, and can direct “inferior officers,” as they are constitutionally known. Comey is an inferior officer, and decisions about who to prosecute and for what are classic discretionary decisions. The choice to prosecute Flynn for lying in an investigation that failed to reveal any underlying crime is one of those judgment calls.

“The greater power includes the lesser” is a common constitutional maxim. If the president can fire Comey, he can certainly suggest to him how to carry out core executive powers. That is not to say that some presidential action might not amount to obstruction, such as destruction of evidence, perjury, subornment of perjury, and the like. Here, the action involved is within the executive’s core constitutional powers, and their exercise by definition cannot be illegal.



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‘The bar must be set high to distinguish merely unwise acts from corruption’

Eric Columbus, former political appointee at the Department of Justice and Homeland Security in the Obama administration

Of course a president can obstruct justice: A corrupt intent can turn a legal action into an illegal one. But the bar must be set high to distinguish merely unwise acts from corruption. If Trump sought leniency for Flynn (and subsequently fired Comey) only out of a sense of loyalty, it’s hard to consider that a criminal act—especially in light of the history of presidential pardons for political associates. But if Trump did so to hinder what he knew to be a non-frivolous investigation into his own wrongdoing, then it looks more like an attempt at obstruction.

That said, Congress, in considering whether to impeach a president, may set the bar lower. If Congress determines that Trump tried to impede an investigation because it targeted his friends, then it could deem that an impeachable offense.



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‘That argument didn’t work for Nixon, and Dowd’s new formulation of it won’t work for Trump’

Kathleen Clark, expert on legal ethics and professor at Washington University in St. Louis

Dowd’s argument that President Trump cannot be held accountable for obstructing justice is reminiscent of one that former President Nixon made: “When the president does it, that means it is not illegal.” That argument didn’t work for Nixon, and Dowd’s new formulation of it won’t work for Trump.

While a president does have the power to fire an FBI director, he does not have the authority to do so if it would violate the law. Past presidents have been held accountable for obstruction of justice. The Articles of Impeachment against both Presidents Nixon and Clinton cited their alleged obstruction of justice as justification for why they should be removed from office. Our Constitution gives the president the responsibility to “take Care that the Laws be faithfully executed.” It does not give the president the authority to act in violation of the laws, including the laws on obstructing federal investigations.



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‘The task of determining whether Trump acted improperly ultimately falls to the House’

John Culhane, professor at Widener University Delaware Law School

The question whether it’s possible for the president to obstruct justice doesn’t have a clear legal answer. The legal question is vexing because the president’s job requires him to supervise and direct the executive branch of government—and that authority might include ending an investigation, in a particular case. Yet where the president acts from an improper, personal motive in interfering in a situation, the actions smell more like garden-variety obstruction. Then, both the Constitution and the public’s confidence in accountability and justice demand a remedy. The impeachment process is that remedy, and the case against Richard Nixon provides good historical context here. The first article of impeachment adopted by the House Judiciary Committee charged him with having obstructed justice through “a course of conduct … designed to delay, impede, and obstruct the investigation of” the Watergate scandal and “to cover up, conceal and protect those responsible.”

Thus, the task of determining whether Trump acted improperly by directing Comey to “let Flynn go” ultimately falls to the House of Representatives, which can decide whether the evidence warrants cranking up the impeachment machinery. So far, the feeble congressional response to the president’s norm-shattering behavior doesn’t give one much optimism that the House—which has the discretion to do what it wants with evidence—will take its constitutional duties seriously. I hope I’m wrong.



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‘The applicable criminal provision makes no reference to the idea that the president is excluded’

Bradley Moss, attorney specializing in national security

It’s hotly debated whether President Trump can be viewed as having “obstructed justice” by trying to interfere in the investigation into General Flynn. The applicable criminal provision—18 U.S.C. 1505—makes no reference to the idea that the president is excluded from its scope. To avoid interfering with the duties of otherwise lawful authorities, that provision specifically requires the existence of threats or corrupt intent in order to apply.

Those caveats distinguish, for example, a president’s general constitutional authority to direct the FBI to conduct an investigation from a circumstance in which that order was given with corrupt intent. The same logic would apply if the order were given by the attorney general or the director of the FBI, both of whom retain their own respective authorities to control the course of investigations and, if necessary, prosecutions.

None of this, of course, changes the unresolved issue of whether a sitting president can be charged with a crime. If President Trump is ever “charged” with obstruction of justice, it will more than likely only come about in the political context of impeachment proceedings on Capitol Hill, not a criminal prosecution.



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‘Questions still need to be answered’

Laurie Levenson, professor at Loyola Law School

Did Trump intend to shut down the FBI investigation of Flynn and others? The president’s recent tweet would be valuable evidence in making that argument. However, there are still some other technical requirements for obstruction under the federal statutes. Obstruction of criminal investigations under 18 USC Sec. 1510(a) would require some type of “bribe” to Comey. Does the suggestion that Comey could keep his job if he let the investigation go count as a bribe? Alternatively, obstruction under 18 USC 1512(c) requires that a person corruptly obstruct an “official proceeding.” Was there a grand jury going at that time? What other official proceeding was being impeded? If the issue is whether there has been the crime of obstruction of justice, these questions still need to be answered. If the question is whether the president tried to “obstruct” an investigation (in the non-technical legal sense), that is a separate issue that would ordinarily be addressed by the political system.

Finally, I’m not sure we can say that just because the president is the head of the executive branch, he has carte blanche to shut down an investigation, especially if it is likely to implicate him and others in his administration. However, this may become the test case. It is far too early for Trump or anyone else to declare there has been no attempt to obstruct justice in the legal or political sense.



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‘That assertion would literally mean that the president is above the law.”

Peter Zeidenberg, partner in Arent Fox’s white collar and investigations practice

Of course the president can obstruct justice. To suggest otherwise would mean that the president could instruct his aides to shred evidence, destroy hard drives and lie to prosecutors without any jeopardy. He could also lie with impunity if interviewed by investigators. That assertion would literally mean that the president is above the law that everyone else must obey.

As for whether Trump obstructed justice by telling Comey that he hoped his FBI director would “let Flynn go,” that certainly could constitute an obstruction of justice. It would depend on the president’s state of mind and whether he had a corrupt intent. Like virtually all criminal cases, that determination would be based on a host of circumstantial evidence. Of course, the fact that the president told NBC’s Lester Holt, on national television, that he had to fire Comey in order to relieve himself of the pressure from the Russia investigation moves the prosecution team a very long way to accomplishing this goal.



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‘The first article of impeachment against Richard Nixon … should serve as the key precedent’

Bruce Ackerman, professor at Yale Law School

The first article of impeachment against Richard Nixon charged him with the high crime of “obstruction of justice,” on the ground that he used “the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation” of the Watergate break-in. Nixon would have undoubtedly been convicted on his charge if he had not resigned.

This should serve as the key precedent for Congress in assessing President Trump’s conduct, as Mueller’s inquiry unfolds.



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‘No one can be free to obstruct justice, including the president’

David Sklansky, professor at Stanford Law School

The suggestion that the president cannot obstruct justice is reminiscent, of course, of Nixon’s claim that “when the president does it, that means that it is not illegal.” Nixon’s defenders have said that he was misunderstood, that the statement was taken out of context. But even among Nixon’s defenders, there’s rarely been a claim that, in fact, whatever Nixon did as president was lawful because he was the president.

This isn’t a narrow legal question. It’s a question about what kind of country this is and what kind of country we want it to be. If we want to remain a free and democratic society, no one can be above the law, including the president, and no one can be free to obstruct justice, including the president. A plea to a subordinate to drop a criminal investigation is obstruction of justice if done with corrupt intent—for example, an intent to cover up wrongdoing by the person making the plea, his family or his close associates. That is the rule for everyone else in the country, and it should be the rule for the president as well. It has to be, if we want to continue to live under a government of laws.



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‘The president can legally obstruct justice, and probably can’t be prosecuted until he exits office voluntarily or is forced out by Congress’

Mark Zaid, national security attorney in Washington, D.C.

Asking whether a president can obstruct justice really requires two questions. Can a president obstruct justice as a matter of law, and can a president be prosecuted for obstructing justice while in office? Students of the law know the legal maxim rex non potest peccare, which to the lay person means “the king can do no wrong,” an observation made legendary by Sir William Blackstone in the 18th century as part of his writings on the English constitution. Yet there is nothing explicit within the U.S. Constitution, whether in text or known framers’ intent, that grants absolute sovereign immunity to a president. Indeed, in 1996, Justice John Paul Stevens wrote that sovereign immunity is a judge-made doctrine that has been “thoroughly discredited” because it is founded on the notion “that a divinely ordained monarch ‘can do no wrong.’” Of course, in 1997, the Supreme Court ruled 9-0 that a president was not immune to certain civil lawsuits for acts that arose prior to taking office. Yet while legal scholars debate whether a crime committed in office is prosecutable at the time, few recognized experts would argue it is not prosecutable at all. One would think that a criminal indictment of a president, whether threatened or actual, would serve as grounds for actionable political impeachment, therefore eliminating the need to determine whether a sitting president can be prosecuted. Therefore, a president can legally obstruct justice, and probably can’t be prosecuted until he exits office voluntarily or is forced out by Congress.

But did President Trump commit obstruction for his February conversation with Comey when he allegedly asked that the FBI ignore Flynn? Answering that question remains elusive due to the need to have greater clarity on the facts, especially after the Trump tweet that Dowd claims to have authored. For some, Comey’s testimony and other presidential statements and actions already serve as the basis for an obstruction charge. Regardless, intent is the key. If President Trump ever testifies before the special counsel that question will undoubtedly be answered in some fashion.



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‘The public does not yet have enough information to reach a conclusion’

William Jeffress, trial lawyer with Baker Botts

The idea that a president cannot obstruct justice is not serious. President Nixon was about to be impeached for doing that very thing. What Dowd may have intended to say is that a president does not obstruct justice merely by expressing his view of a criminal case. But even that proposition goes too far. If the president expresses his view to a law enforcement official intending to influence the investigation, and does so “corruptly”—meaning for an improper purpose—he could be found guilty of obstructing justice.

In my opinion, the public does not yet have enough information to reach a conclusion in the case of President Trump’s statement to Director Comey. If the president made the statement because he thought Flynn was a good man who had suffered enough, he is not guilty of obstructing justice, even if he knew Flynn had committed a crime by lying to the FBI. But if the president knew that Flynn had knowledge incriminating him or someone close to him, and endeavored to stop the investigation in order to keep Flynn quiet, that is another matter. We can be sure that Mueller will focus on any conversations Flynn had with the president about the Russia investigation prior to the Comey meeting, in order to learn the facts regarding this central question.



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‘Politics, public perceptions and law are highly intertwined in this context’

Rick Pildes, professor at NYU School of Law and author of Law and the President

Everyone recognizes that the president can commit a crime by interfering with the criminal justice process in certain ways: by bribing or tampering with witnesses, for example, or by destroying documents that have been subpoenaed. The obstruction of justice statutes include other means through which public or private actors, acting with a corrupt intent, can seek to destroy the integrity of criminal prosecutions and grand-jury investigations. As a matter of understanding the structure of the Constitution, it is hard to see why Congress would have the power to make it a crime for the president to bribe witnesses but not make it a crime for the president to corruptly undermine criminal prosecutions through other means, including the means that the obstruction of justice statutes in fact prohibit.

What the obstruction of justice statutes prohibit, when it comes to the president, is the use of his generally legitimate powers in the criminal justice sphere for corrupt purposes—such as the purpose of hiding the fact that the president himself has committed crimes. Arguing that the president cannot, by definition, be guilty of violating the obstruction of justice statutes is essentially an argument that these laws are unconstitutional when it comes to the president. The extremity of that position is breathtaking: It means that Congress has no power to prohibit the president from corruptly manipulating the criminal justice process to hide his own criminal acts. Justice Jackson famously said, “the Constitution is not a suicide pact,” and yet that is what the Constitution would turn out to be if Congress lacked the power to prohibit the president from corrupting judicial proceedings to insulate himself from accountability.

It might be tempting to think it is ultimately irrelevant whether the president has committed the crime of obstructing justice because the president cannot be criminally prosecuted while in office—impeachment is the sole mechanism for removing a president. And Congress could surely impeach a president for “obstruction of justice” in a more political, and less purely legalistic, sense of that term. But politics, public perceptions and law are highly intertwined in these contexts: If the president has in fact committed the crime of obstruction of justice, the public and political support for impeachment would certainly be enhanced dramatically. Thus, while the crime itself would not be prosecuted, if the president has committed the crime of obstruction, the specter of impeachment looms much larger.



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‘Team Trump would all be well served to invoke their respective rights to remain silent.’

Lori Lightfoot, trial attorney with Mayer Brown

There is nothing in Article II that precludes a finding of obstruction of justice if the president had an improper purpose in taking actions. Wishful thinking on the part of an advocate does not make a legitimate constitutional argument.

The details underpinning Flynn’s plea provide a possible explanation for the president’s actions in firing Comey—namely to shield from any scrutiny high-ranking transition officials’ inappropriate and possibly illegal contacts with foreign governments. The foolish tweet that claimed lying to the FBI as a new basis for firing Flynn adds even more evidence in a possible obstruction case.

With each passing milestone, we see a client who continues to undermine his own defense and lawyers who have little to no influence over that client, but who try to excuse and explain away the indefensible in ways that undermine their own credibility and increasingly in ways that violate their primary responsibilities as officers of the court. Team Trump would all be well served to invoke their respective rights to remain silent.



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‘Corruption is a question of motive, not authority’

Kermit Roosevelt, professor of law at the University of Pennsylvania

Yes, of course the president can obstruct justice, just as he can commit any other crime. If he destroyed evidence or threatened a witness in a pending prosecution, I don’t think anyone would deny that he had obstructed justice. The theory that the president cannot obstruct justice by firing the FBI director seems to be based on the theory either that he generally has the power to fire any executive branch official at will (a theory Alan Dershowitz has expressed) or that he has the power to direct and supervise all federal investigations as he pleases (a theory expressed by John Dowd). As to the first, it’s true that the president can generally fire executive branch officials at will. But obstruction of justice does not require the perpetrator to do something illegal to obstruct the administration of justice, only that it be done “corruptly.” The fact that firing Comey was within Trump’s constitutional authority means it was not illegal; it does not mean it was not corrupt. Corruption is a question of motive, not authority. If Trump fired Comey in order to cover up wrongdoing by himself or others in his administration, that is corrupt.

For example, Flynn pleaded guilty to lying to the FBI about conversations with the Russian ambassador in which he urged Moscow not to retaliate for Obama’s sanctions. Those conversations, as described in the plea, are arguably Logan Act violations. If they were conducted at the urging of other administration officials or Trump himself, those officials would be implicated in the violations, and a desire to prevent them from being discovered would be a corrupt motive. Thus, Mueller seems to have constructed the plea deal in a way that supports the corruption element of obstruction of justice. Whether simple awareness that Flynn had lied to the FBI means Trump had a corrupt motive is a much harder question.

As to the second theory, it’s not the case that the president has the authority to supervise the discretionary acts of all executive branch officials. His duty is to take care that the laws are faithfully executed, not to execute them himself. He can fire an executive branch official he feels is failing to faithfully execute the law. He cannot tell the official what to do; the relevant statute tells the official what to do. It is a long-standing understanding within the executive branch and the courts that when an officer other than the president has a statutory duty, the president can replace the officer for not doing that duty but cannot tell him or her how to perform it.

In an 1846 opinion of Attorney General Mason, he wrote that the president “has the power of removal, but not the power of correcting, by his own official act, the errors of judgment of incompetent or unfaithful subordinates.” In 1837, the D.C. Circuit wrote that Congress “may prescribe the duties” of an office and that “if there be no other officer who is, by law, specifically authorized to direct how the duties are to be performed, the officer, whose duties are thus prescribed by law, is bound to execute them according to his own judgment ... He is responsible to the United States, and not to the president, further than for his fidelity in the discharge of the duties of his office.” The president is bound to see that such officials faithfully discharge their duties, “but this does not authorize the president to direct him how he shall discharge them.” The Supreme Court affirmed that decision, noting that Congress can impose duties on officials and “in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president.” This is especially true of the Department of Justice, whose independence has long been understood to be essential to public confidence that the administration of justice is not politicized.



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‘There are a series of hurdles’

Josh Blackman, professor at South Texas College of Law and adjunct scholar at the Cato Institute

There are a series of hurdles before President Trump could be tried for obstruction of justice. First, as special counsel, Robert Mueller lacks the statutory authority to unilaterally seek an indictment. Rather, he can only make a recommendation to the Justice Department about whether criminal charges should be sought.

Second, in the event that Mueller recommends that criminal charges should be sought, the decision to proceed would fall to Assistant Attorney General Rod Rosenstein. (Recall that Attorney General Jeff Sessions recused himself from all matters concerning the 2016 campaigns). If Rosenstein disagrees with Mueller, that is the end of the road for a criminal prosecution in federal court. If Rosenstein agrees with Mueller, and decides to seek an indictment, then Trump could order Sessions to fire Rosenstein. If Sessions refused, Rosenstein would be elevated to acting attorney general, and Trump could then fire him. Or, Trump would resign, thus obviating these difficult questions about indicting a sitting president. Under no feasible set of circumstances could a federal criminal prosecution proceed while Trump is in office.

Third, all of these machinations presume that a sitting president can even be indicted for a violation of federal law. This is a very difficult question that has never been tested. The Supreme Court has held that the president could be subjected to a civil lawsuit while in office, but expressly left open the question of whether criminal charges could be brought. Consider the implications of allowing such a case to proceed. The president would be required to attend a trial of an indeterminate length, keeping him away from the serving as the commander in chief. Could the defendant require the court to recess the trial if a missile was launched in North Korea? If convicted and sentenced to prison, could the president lead the country from behind bars? What if the trial court refuses to put the sentence on hold while the case is appealed?

Devotees of the 25th Amendment would likely celebrate this scenario, positing that Trump would be “unable to discharge the powers and duties of his office,” and should be removed from office. But there is no guarantee that the Cabinet, who could view the prosecution as politically motivated, would submit such a declaration.