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News Link • Trump Administration

Can the President Lawfully Investigate His Investigators?

• By Andrew P. Napolitano

This past weekend, President Donald Trump suggested that his presidential campaign may have been the victim of spies or moles who were FBI informants or undercover agents. He demanded an investigation to get to the bottom of the matter.

At the same time that the president was fuming over this, Republican congressional leaders were fuming about the reluctance of senior officials at the Department of Justice and the FBI to turn over documents that might reveal political origins of the current criminal investigation of the president by special counsel Robert Mueller.

Can the president intercede in a federal criminal investigation of which he himself is a subject? Can Congress intercede in a DOJ criminal investigation? Here is the back story.

Mueller was named special counsel so he could investigate serious and demonstrable evidence of Russian government interference in the 2016 presidential election. Because the Trump campaign met with Russian intelligence officials offering campaign assistance, implicit in that investigation is an inquiry into whether the Trump campaign invited foreign interference and agreed to accept or facilitate it.

Mueller is seeking to determine whether there was an agreement between the Trump campaign and any foreign person, entity or government to receive anything of value for the campaign. Such an agreement plus a material step in furtherance of it taken by any of those who joined the agreement would itself constitute the crime of conspiracy, even if the agreed-upon thing of value never arrived.

In the course of examining evidence for the existence of this alleged conspiracy — which Trump has forcefully denied many times — Mueller's prosecutors and FBI agents have come upon evidence of other crimes. They have obtained 19 indictments — some for financial crimes, some for lying to FBI agents and some for foreign interference in the election — and four guilty pleas for lying, in which those who pleaded guilty agreed to assist the government.

Nine of the indictments are against Russian intelligence agents, whom the president himself promptly sanctioned by barring their travel here and their use of American banks and commercial enterprises, even though he has called Mueller's investigation a witch hunt.

Mueller has also come upon evidence of obstruction of justice by the president while in office and financial crimes prior to entering office, all of which Trump has denied. Obstruction of justice consists of interfering with a judicial proceeding — such as a grand jury's hearing evidence — for a corrupt purpose.

Thus, if Trump fired FBI Director James Comey because he didn't trust him or because he wanted his own person in that job, that was his presidential prerogative, but Trump's purpose was corrupt if he fired Comey because Comey would not deny that the president was the subject of a criminal investigation — a basis for firing surprisingly offered publicly by one of the president's own lawyers.

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