What you don’t know can’t hurt you — yet. A group of legal scholars headed by attorney Alexander Stern in Berkeley are arguing that Robert Mueller may have already indicted Donald Trump under seal, and that doing so would remove all concerns of an indictment distracting a sitting president, (Giuliani’s theory) or the statute of limitations expiring, because the sealed indictment would act as an automatic stay; or that firing Mueller would get Trump off the hook. AttorneyIO
This seems to create a clear line in the sand. The Department of Justice would arguably act unconstitutionally if it publicly indicted a sitting president. The weight on such a defendant’s mind would reduce his ability to perform his function. However, there is no such concern if the defendant is unaware of his own prosecution. Additionally, there are competing constitutional problems with saying someone is above the law by virtue of his employment status as president. A secret indictment would effectively eliminate both concerns of distractedness and issues of unwarranted immunity for criminal behavior.
And here’s really good news. Indictment under seal would render the firing of Robert Mueller moot because the judiciary would have jurisdiction over Trump and he can’t fire any of them, except through impeachment.
An early indictment by Mr. Mueller does not relinquish any power or ability to investigate. It merely empowers a different branch (the judiciary) with jurisdiction over the defendant. If the indictment is sealed, Mr. Mueller could proceed with the investigation as if there were no indictment at all. In the event he wishes to add new charges, he can simply seek a “superseding indictment.” This is basically a second indictment that takes the place of the first once new information is found and prosecutors wish to change the scope of the prosecution.
The important consideration for Mr. Mueller is that even if he should be fired after a sealed indictment issues, this action would ensure Mr. Trump would still be a criminal defendant held accountable by the judicial branch. Someone would simply replace Mr. Mueller. However, if Mr. Mueller is fired without indicting the president, it is much more likely that the president would never face indictment.
Finally, Mueller said on April 3 that Trump was a “subject” in the FBI probe and not a “target.” That may have been a truthful statement or a disingenuous one, and if the latter, that’s common.
…prosecutors routinely lie to criminal suspects to avoid obstruction of their investigations and to elicit incriminating information. Prosecutor Marc Weber Tobias notes in a Forbes article from 2014 that courts generally permit prosecutors to lie to criminal suspects. He says, “Many investigations, by necessity, involve the use of deception in order to identify and catch suspects. They can result in producing incriminating evidence… Pretexts are common tools that are used to catch criminals involving just about any imaginable offense. They are especially useful in narcotics investigations and bribery of public officials.”
In other words, public officials may have unusual power to thwart investigations. So, it can make these suspects especially worthy targets of deception. That way, the suspect public official will not use this power to impede a lawful investigation. This deception seems especially warranted when the suspect has the power to fire the investigator.
Mueller is sharp as a tack. If other lawyers can figure out the efficacy and logic of this strategy, you think he didn’t figure it out already?