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The case for indicting presidents, as made by Trump’s new lawyer

“The nation ... could conceivably benefit from the indictment of a president.”

joseph digenovo, trump, lawyer
Joseph diGenova.
Fox News
Zack Beauchamp is a senior correspondent at Vox, where he covers ideology and challenges to democracy, both at home and abroad. Before coming to Vox in 2014, he edited TP Ideas, a section of Think Progress devoted to the ideas shaping our political world.

Joseph diGenova, the newest member of President Donald Trump’s legal team, is most famous for his hyperbolic attacks on the Russia investigation during Fox News hits. He has accused the FBI and Department of Justice of “trying to frame Donald Trump of a falsely created crime,” and said special counsel Robert Mueller’s investigation into Trump’s Russia ties has created “the largest law enforcement scandal in history.”

But diGenova hasn’t always opposed criminal investigations of presidents. In fact, he wrote in a 1997 Wall Street Journal op-ed that it would be good for the country if a president were not only investigated but actually indicted while in office.

“The nation, in fact, could conceivably benefit from the indictment of a president,” diGenova wrote. “It would teach the valuable civics lesson that no one is above the law.”

This is an unconventional position, to put it mildly. The longstanding position of the Department of Justice is that the president cannot legally be prosecuted while in office, as it would compromise their ability to fulfill their duties under Article II of the US Constitution. For that reason, most legal experts believe that Mueller wouldn’t indict President Trump even if he put together knock-down evidence that the president committed a crime.

This view, however, is controversial among legal scholars — with many arguing that the DOJ got it wrong and that presidents aren’t immune from all prosecutions. DiGenova sides emphatically with the skeptics.

“Let us suppose that one day a president, tired of the constraints of security, secretly leaves the White House in a car and strikes and kills a pedestrian. Suppose, further, the president was drunk at the time. Does anyone argue that justice must await his impeachment and removal?” diGenova writes in the Journal piece. “The Founders created a presidency, not a monarchy.”

For this reason, he sings the praises of keeping investigations into the president free from the chief executive’s influence. “Independent counsels are not appointed by the White House, so presumably they should be free to pursue criminal charges against the president if his actions warrant it,” he wrote.

DiGenova’s past comments aren’t simply interesting because they suggest a remarkable turnaround for someone who once favored the literal opposite of what he’s now calling for. They also come against a steady drumbeat of news that suggests Trump wants to confront Mueller more aggressively and potentially soon move to fire him.

The New York Times reported Monday that Trump may push out attorney Ty Cobb, who has long pushed the administration to fully cooperate with the Mueller probe.

Today, diGenova is one of the loudest voices pushing for Trump to reverse course, arguing that the Mueller investigation should be shut down and the FBI officials who participated in it be investigated. “The appointment of a special counsel will go down in history as one of the worst decisions ever made by a Justice Department official,” as he put it in a January 30 Fox News interview.

It would be very interesting if one of Fox’s hosts were to ask diGenova, in one of his many spots, whether he stands by his legal analysis from 20 years ago — and why he’s turned so sharply on special counsels.

Surely the reason can’t be that 20 years ago, a Democrat was in office and under investigation, whereas today a Republican occupies the Oval Office. That just can’t be it.


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