FOX News senior judicial analyst Judge Andrew Napolitano said there is an obstruction of justice case to be made against President Trump even though there is no underlying indictment on conspiracy. Napolitano said the "underlying indictment theory" is not even embraced by the Department of Justice.



Napolitano also argued that a president can be charged with a crime while in office because former President Bill Clinton plead guilty to a felony while in office.







ANDREW NAPOLITANO: It is not uncommon for two prosecutors looking at the same evidence to come to different conclusions. This happens every day in every prosecutor's office. I think you hit the nail on the head when you said it is up to the Attorney General to make these decisions.



I think the reason Mueller did not come to a conclusion on obstruction of justice is not because the evidence wasn't there -- it's there. There are ten crimes outlined. There is enough there to get an indictment on any of them if the defendant were not the president of the United States.



I think the reason is because he knew that the Attorney General would never give him permission to do so. He's a soldier, he's a Marine. He doesn't want to challenge and take on his boss publicly.



BRET BAIER: You think the ten things listened there could actually be prosecuted as crimes?



NAPOLITANO: Absolutely. So do more than a thousand former federal prosecutors.



BAIER: Right, even though there is no underlying indictment on the conspiracy.



NAPOLITANO: The underlying indictment theory is not even embraced by the present DOJ.



BAIER: I understand that you could go forward with the crime, but you think a prosecutor would actually do that?



NAPOLITANO: Well, I don't know if a prosecutor would but under the law there is enough for a prosecutor to do so. And as far as this OLC, Office of Legal Counsel, opinion, it's an advisory opinion. It was issued in October of 2000. Fourty-five days later, the Justice Department prosecuted of the United States, Bill Clinton, for obstruction of justice and fourty-five days after that he pled guilty to a felony while still in office. So it is clear that this opinion is not a bar to prosecute the president.



BAIER: The question is if he was never going to make the case, he was never going to go no-go, decide if he had a case or didn't decide he had a case. Why wouldn't he say that at the beginning? Number two. How long did he know he was not going to make a case? And how long did he know there was no collusion? Number three. Why did we go through all of this, other than the Russia part which is incredibly important?



NAPOLITANO: You just asked the first three questions that whoever on the House Judiciary Committee gets the question first, probably on the Republican side, Congressman Collins, I think, the ranking Republican, will want to ask. One thing that Bob Mueller said yesterday that is absolutely not true is that this is not the last time that we're going to hear from him. He's a private citizen. They're probably going to subpoena him next week.