WASHINGTON (AP) – The Justice Department has appointed former FBI Director Robert Mueller as a special counsel to oversee a federal investigation into potential coordination between Russia and the Trump campaign to influence the 2016 presidential election.
The appointment Wednesday comes amid a growing Democratic outcry for someone outside the Justice Department to handle the politically charged investigation.
It follows the revelation Tuesday that fired FBI Director James Comey wrote in a memo that Trump had asked him to end an investigation into former national security adviser Michael Flynn.
A memo detailing President Donald Trump’s request to shut down an FBI investigation of his ousted national security adviser is a powerful piece of evidence that could be used to build an obstruction of justice case against him.
But criminal charges of interfering with an investigation are difficult in ordinary circumstances, several former federal prosecutors cautioned Wednesday. And it’s an open question whether a sitting president can even face criminal charges, or whether attempts to hold him accountable for wrongdoing can only proceed through impeachment.
The White House has denied fired FBI Director James Comey’s account of a conversation he had with Trump in February, recorded in a memo seen by Comey associates. Still, to a prosecutor building an obstruction of justice case, the facts are compelling.
First, Comey says the president asked for his loyalty. Then he asked Comey to back off the FBI’s investigation of former National Security Adviser Michael Flynn, according to Comey’s memo. Then Trump fired Comey, declaring in a television interview that it was at least partly because he was bothered by the FBI’s probe of potential coordination between Russia and his presidential campaign.
“I’m hard pressed to find a prosecutor who would just look at this and say, OK, just move along,” said Jeff Cramer, a former federal prosecutor. “It’s not a two-foot putt, but is it a viable prosecution? Sure. But not against a president.”
Whether a sitting president can be indicted for a crime is a question that is not answered by either the Constitution or by Supreme Court cases, but many legal scholars believe impeachment is the only way to hold a president accountable for misconduct. Justice Department lawyers under presidents Richard Nixon and Bill Clinton also concluded a president can’t be indicted because it would interfere with his constitutionally assigned duties.
Eric Freedman, a Hofstra University law professor, has long believed that a president can be prosecuted while in office. “It’s a disputed constitutional issue. We know specifically that the framers argued about this,” Freedman said. “They were undecided.”
Even if possible, a criminal prosecution would have its hurdles. Obstruction of justice charges often come down to whether prosecutors can show a person “corruptly” intended to interfere with an investigation.
“Since we can’t read people’s minds, proving intent is very difficult,” said Carole Rendon, who served as the chief federal prosecutor in Cleveland until March. And Trump could argue he was not corrupt in raising an issue of concern for Flynn, a longtime associate.
Proving Trump’s mental state would be a tall task, but prosecutors could have some clues.
For one, he asked Vice President Mike Pence and Attorney General Jeff Sessions to leave the room before speaking privately with Comey about Flynn, according to a Comey associate. And in firing Comey, Trump claimed the FBI director told him three times he was not under investigation, which could be a sign that they were repeatedly having such conversations, said Daniel Petalas, a defense attorney who formerly worked in the Justice Department’s Public Integrity Section.
“If he’s pressuring repeatedly and won’t take no for an answer, that becomes evidence of intent,” Petalas said.
Comey’s response could also be an indication.
“If in fact it’s true that the FBI director immediately wrote a memo to the file, it indicates that he thought something was amiss,” Rendon said.
The memo itself would be “significant evidence,” because Comey has a “sterling reputation for truthfulness,” said Paul Charlton, another former federal prosecutor. “I don’t know that you could say the same about the president.”
Both presidents who were subjected to impeachment proceedings, Clinton and Nixon, were accused of obstructing justice. Yet impeachment would not be without its own difficulties, Petalas said, because the House and Senate decide for themselves whether the standard is met.
It takes a majority of the House to impeach a president and a two-thirds vote of the Senate to remove him from office. Republicans control both houses, as well as the presidency.
Nixon resigned before the Democratic-led House could vote on impeachment and Clinton, while impeached by a House run by Republicans, survived a Senate trial.
In theory, prosecutors can pursue charges against a president after he leaves office. President Gerald Ford pardoned Nixon in 1974 to spare him and the country from having to re-live the Watergate scandal in a historic trial of a former president.
Days before he left office, Clinton reached a deal with independent counsel Robert Ray that spared Clinton possible indictment after leaving office. Clinton acknowledged that he had made false statements under oath about his relationship with White House intern Monica Lewinsky and surrendered his law license in Arkansas.
The White House has issued a statement on the case:
“As I have stated many times, a thorough investigation will confirm what we already know — there was no collusion between my campaign and any foreign entity. I look forward to this matter concluding quickly. In the meantime, I will never stop fighting for the people and the issues that matter most to the future of our country.”
California Sen. Diane Feinsten has issued the following statement:
“The appointment of Bob Mueller as special counsel for the Russia investigation is a good first step to get to the bottom of the many questions we have about Russian interference in our election and possible ties to the president.
“Bob was a fine U.S. attorney, a great FBI director and there’s no better person who could be asked to perform this function. He is respected, he is talented and he has the knowledge and ability to do the right thing.”
Rep. Eric Swalwell has issued this statement:
“Robert Mueller’s appointment as special counsel is welcome and needed for an investigation that was disrupted by the President’s firing of FBI Director James Comey last week. But this is only half of the solution. As Mueller oversees an investigation of past crimes, we need a bipartisan-appointed, independent commission to investigate what happened, make a credible public report, and come up with reforms to prevent future crimes.”
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— Paul Ryan (@SpeakerRyan) May 17, 2017