Sol Wachtler, a former chief judge of the New York State Court of Appeals, once famously remarked that grand juries were so easily swayed that they would “indict a ham sandwich” if a prosecutor requested it. Many times, there is truth to this. But an indictment does not end the process of determining guilt or innocence. It begins it.
Following indictment, criminal defendants can question the validity of the charges, the methods used to acquire the evidence and the evidence itself. They can seek to dismiss a criminal indictment and, if unsatisfied with the ruling, appeal it all the way to the Supreme Court.
The grand jury system has been employed in hundreds of thousands of cases involving all manner of crimes committed by all manner of people. All, that is, except one: the president.
No grand jury has ever indicted a president, and consequently no court, let alone the Supreme Court, has ruled on the critical question of whether the Constitution allows a president to be indicted while in office. Legal scholars have opined on both sides of the issue, and Department of Justice attorneys have drafted memorandums arguing against indicting a sitting president. But none of these analyses establish definitive rules of law. It is time to clarify the issue.
Provided there is sufficient evidence to support an indictment of President Trump — and there are many indications that there is — the special counsel, Robert Mueller, who is investigating possible Russian interference in the 2016 election, and prosecutors from the United States Attorney’s Office for the Southern District of New York, who are investigating payments to my client, Stormy Daniels, and Karen McDougal, should present their evidence to grand juries. Those jurors, citizens of our communities, should then determine whether the evidence supports an indictment of Mr. Trump.
The fact that Mr. Trump is a sitting president should not derail a process that applies to all Americans, regardless of stature or station. [Continue reading…]