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Neal Katyal Opinion Piece
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Can one of you smart lawyer types give me your professional opinion on this?

He explains it a bit more in his twitter thread today:

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THREAD RE INDICTING PRESIDENT. Trump’s defenses to campaign finance vio crumbling rapidly, partic after AMI admission. I predict the only thing he has left is idea sitting President cant be indicted. This thread fleshes out aspects of that, expands on NYT



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    1.The 2 DOJ opinions saying sitting Presidents can’t be indicted have 3 limitations for Trump that mean they don’t necessarily protect him. And, even if DOJ policy means a sitting President can’t be indicted, that could actually hurt Trump in huge ways. Start with the 3 limits.


  2. Neal Katyal‏Verified account @neal_katyal 46m46 minutes ago
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    2. First, they do not necessarily apply to crimes that go to obtaining Presidency itself. It is one thing if we're talking about unrelated crimes, like perjury in current office (which has chilling fx etc). But we may want to avoid incentivizing a world where the prize of winning


  3. Neal Katyal‏Verified account @neal_katyal 45m45 minutes ago
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    3. Presidency is a get out of jail free card for crimes you committed to get there. That’s the world of House of Cards, or certain less developed countries around the globe.


  4. Neal Katyal‏Verified account @neal_katyal 45m45 minutes ago
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    4. Second, as @WalterDellinger has argued, there is a real difference between indicting a President and forcing them to go through trial. The indictment might be permissible–indeed, it might be required if a President doesn’t agree to voluntarily waive the statute of limitations


  5. Neal Katyal‏Verified account @neal_katyal 44m44 minutes ago
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    5. Third, the opinions don’t apply to state crimes, and it looks like some of the violations here may have state law counterparts. So, for example, the Attorney General of New York may be able to bring charges, DOJ opinions won’t protect Trump.Direct message


  6. Neal Katyal‏Verified account @neal_katyal 43m43 minutes ago
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    6. Now, let’s say all that is wrong, and Trump can’t be indicted. As I said in NYT, there are several deep reasons why that is bad for Trump, too (which is part of the reason why Presidents and candidates outside of Nixon stay far away from questionable conduct).ect message



  7. Neal Katyal‏Verified account @neal_katyal 42m42 minutes ago
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    7. The first thing is that it feeds impeachment, indeed, it may require it. If indictment is off the table, then impeachment must be on it. The whole idea of a sitting Pres can’t be indicted is b/c you have to go thru impeachment proceedings first and then try him for the crime.


  8. Neal Katyal‏Verified account @neal_katyal 42m42 minutes ago
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    8. This means that Congress is under a constitutional duty to investigate every aspect of the allegations and commence a full-blown inquiry, precisely because the criminal process (which would be used in the case of every other American) cannot be used.irect message



  9. Neal Katyal‏Verified account @neal_katyal 40m40 minutes ago
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    9. That is hardly good news for President Trump. @JerryNadler is a brilliant and dogged investigator, and he’s also a balanced one who hasn’t wanted to trigger impeachment unless he has to. Trump’s argument may mean Nadler has to.Direct message



  10. Neal Katyal‏Verified account @neal_katyal 39m39 minutes ago
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    10. The second problem for Trump is that it intersects with his ability to stay silent. His lawyers keep talking about a “perjury trap” if he talks to prosecutors, claiming he has a 5th amendment right to avoid self incrimination.


  11. Neal Katyal‏Verified account @neal_katyal 39m39 minutes ago
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    11. But if Trump can’t be indicted, then why should he be able to plead self-incrimination rights, which are after all about criminal liability?


  12. Neal Katyal‏Verified account @neal_katyal 38m38 minutes ago
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    12. It may be that the statute of limitations would still permit charge for perjury after he leaves office – but that is years later and not true should Trump win a second Term (I know, unlikely at this point, after all, even serving out his Term looking increasingly unlikely).


  13. Neal Katyal‏Verified account @neal_katyal 38m38 minutes ago
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    13. Trump’s arg would create a huge disparity w/all other fed employees—who would have to cooperate w/law enforcement or lose their job. Why should President be above that?


  14. Neal Katyal‏Verified account @neal_katyal 37m37 minutes ago
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    14. Brings me to most impt point: DOJ policy about sitting President indictment is generic, BUT Special Counsel regulations (which I had the privilege of drafting for DOJ as a young pup back in good ol' 1999) permit departures from DOJ policy. message



  15. Neal Katyal‏Verified account @neal_katyal 36m36 minutes ago
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    15. Mueller can seek a departure from DOJ policy, and obtain permission to indict Trump. Partic if Trump insists on not providing testimony, and not waiving statute of limitations, such a departure may be granted by Acting AG.


  16. Neal Katyal‏Verified account @neal_katyal 35m35 minutes ago
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    16. Of course, we don’t even know who the Acting AG is, DOJ won’t tell us who is supervising investigation –Whitaker or Rosenstein? (Something of an aside here: that’s the way the Soviet Union operates, in America, we have an inalienable right to know who are governors are.)


  17. Neal Katyal‏Verified account @neal_katyal 35m35 minutes ago
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    17. Either Whitaker or Rosenstein may conclude that in America, no one is above the law, and authorize the indictment of Trump.
    Direct message


  18. Neal Katyal‏Verified account @neal_katyal 33m33 minutes ago
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    18. If Mueller asks (and he may be the one making the ask for SDNY given his other investigations), Special Counsel regs say if Acting AG refuses to indict, must report it to Congress, both majority and minority parties.


  19. Neal Katyal‏Verified account @neal_katyal 32m32 minutes ago
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    19. Here is kicker #1:Special Counsel regs therefore put thumb on scale of Mueller asking Acting AG to indict, as that is the one way Mueller can be sure info he has uncovered in his investigation is provided to Congress. EVEN if Mueller thinks AG would say no, he may need to ask


  20. Neal Katyal‏Verified account @neal_katyal 29m29 minutes ago
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    20.Particularly in a world of witness tampering, fake AGs installed &now serious allegations of lying by President, and indeed, felonies, that may be Mueller’s best option. Key purpose of Special Counsel regs is shining sunlight on govt wrongdoing+avoid appearances of impropriety


  21. Neal Katyal‏Verified account @neal_katyal 28m28 minutes ago
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    21. Kicker#2: Trump has to know all of this, at least if he has decent counsel. Trump may therefore conclude, as Spiro Agnew did before him, he has 1 card left to play: resign and plea to avoid jail time. END



In particular can you clarify this part "If indictment is off the table, then impeachment must be on it. The whole idea of a sitting Pres can’t be indicted is b/c you have to go thru impeachment proceedings first and then try him for the crime. "

I'm not sure how that follows, especially given the current mix of the House/Senate (of course, that all changes next month).

Suffer Well.
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Re: Neal Katyal Opinion Piece [jmh] [ In reply to ]
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he is saying that the President's actions have to be reviewed by SOMEONE. If not typical procedure, must be congress.

he is saying that becoming president cant be a get out of jail free card, there has to be some process of review. He goes into saying that 5th amendment ONLY deals with criminal proceedings (not covered by impeachment).

So if he cant go through criminal route, he also cant claim the 5th.
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Re: Neal Katyal Opinion Piece [jmh] [ In reply to ]
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Not a lawyer who can address your question, but this has been my prediction for Trump: "Trump has to know all of this, at least if he has decent counsel. Trump may therefore conclude, as Spiro Agnew did before him, he has 1 card left to play: resign and plea to avoid jail time. END"
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Re: Neal Katyal Opinion Piece [patentattorney] [ In reply to ]
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patentattorney wrote:
he is saying that the President's actions have to be reviewed by SOMEONE. If not typical procedure, must be congress.

he is saying that becoming president cant be a get out of jail free card, there has to be some process of review. He goes into saying that 5th amendment ONLY deals with criminal proceedings (not covered by impeachment).

So if he cant go through criminal route, he also cant claim the 5th.

I got most of that.

My question fixates on the the review. By why does someone have to review it? It seems to me that if the current make up of the House stayed that way for the next term, we might never see it reviewed.

His analysis seems to be devoid the reality of our current political tribes and the desire for those in currently the House criticize, let alone to review, the actions of the President.

Suffer Well.
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Re: Neal Katyal Opinion Piece [jmh] [ In reply to ]
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Congress could turn a blind eye, but based on prior rulings it makes no sense to at least make it so congress has to turn the blind eye.

Our system forces people to be accountable in some way. Without being able to be indicted, you have to answer to congress. Congress could most certainly classify the entire report, and then never really provide oversight. But it is vastly different than just saying "welp, nothing we can do. President is king"
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Re: Neal Katyal Opinion Piece [patentattorney] [ In reply to ]
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Thanks. I think that clarifies it a bit more.

It will be telling if the Mueller report sees the light of day. Making some assumptions of its content based upon the indictments, etc thus far, it would difficult to turn a blind eye should it be available for the public.

But then again, one only has to listen to folks like Orrin Hatch "I don't care, all I can say is he's doing a good job as president," to see how situational ethics and politics affect common sense and good judgment.

Suffer Well.
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Re: Neal Katyal Opinion Piece [jmh] [ In reply to ]
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I dont know if the impeachment proceedings have to be public. I think the way things start is that the judicial committee in the house (like 50 people) meet in conference to see if there should be a vote on impeachment.

In Nixon, they had the majority to move forward out of conference. Then he resign before the vote actually happened. The reason he resigned was mostly because he didnt think he had the votes to withstand. Nixon stayed in office until he knew he didnt have the votes (both the GOP leaders told him so).

During the impeachment, I think they televised the first part. Then went in closed session for the rest. Then the judicial televised their conclusion.

So to some degree. If trump stepped down now, everyone was pardoned. I really dont know if it would ever be public.
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Re: Neal Katyal Opinion Piece [patentattorney] [ In reply to ]
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patentattorney wrote:
I dont know if the impeachment proceedings have to be public. I think the way things start is that the judicial committee in the house (like 50 people) meet in conference to see if there should be a vote on impeachment.

In Nixon, they had the majority to move forward out of conference. Then he resign before the vote actually happened. The reason he resigned was mostly because he didnt think he had the votes to withstand. Nixon stayed in office until he knew he didnt have the votes (both the GOP leaders told him so).

During the impeachment, I think they televised the first part. Then went in closed session for the rest. Then the judicial televised their conclusion.

So to some degree. If trump stepped down now, everyone was pardoned. I really dont know if it would ever be public.

Seems plausible, but there are many members of Congress on both sides that have said they will press hard for the contents of Mueller's report to be made public. Under the scenario above where the contents remain concealed, after resigning Trump would still claim it was a witchhunt and blahs blah blah, and his base would still think it was a giant conspiracy against him. So the Dems will fight really hard to avoid that scenario.

I have always said I think Trump will resign for a no jail plea deal, or a pardon, and not for conspiracy with the Russians (although that is still very much on the table), but for financial irregularities.
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Re: Neal Katyal Opinion Piece [Kay Serrar] [ In reply to ]
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If trump resigns because of fears of impeachment the gop has much more to fear.

That’s why the gop would want it to be public. You can’t impeach without both parties.
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