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Can the President Lawfully Investigate His Investigators?
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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.


The potential financial crimes appear to be in the areas of bank fraud — making material misrepresentations to banks to obtain loans — and money laundering, or the passage of ill-gotten gains through numerous bank accounts so as to make the gains appear lawful. These, too, Trump has denied.

It seems that the deeper Mueller and his team dig the more they find. As lawyers and as federal prosecutors, Mueller’s team members have ethical obligations to uncover whatever evidence of crime they come upon and, when professionally feasible and legally appropriate, either prosecute or pass the evidence on to other federal prosecutors, as they did in the case of evidence of fraud against Michael Cohen, a former confidant and lawyer for Trump before he was president.

Now, back to Trump’s eruption about FBI spies or moles.

The president cannot interfere with criminal investigations against himself without running the risk of additional charges of obstruction of justice — interference with a judicial process (the gathering of evidence and its presentation to a grand jury) for a corrupt purpose (impeding his own prosecution or impeachment). Nor can members of Congress see whatever they want in the midst of a criminal investigation, particularly if they might share whatever they see with the person being investigated.

Prosecutors have a privilege to keep their files secret until they reach the time that the law provides for them to go public. Because Mueller is faced with the legal equivalent of assembling a 10,000-piece jigsaw puzzle, he is not yet ready to show his cards. If his cards contain materials from confidential sources — people whose identities he promised not to reveal — or if his cards contain evidence he presented to a grand jury, he may not lawfully reveal what he has until it is time to exonerate the president, indict him or present a report to Mueller’s DOJ superiors that is intended for the House of Representatives.

Can the president investigate his investigators?

Yes — but not until the investigation of him is completed. That’s because no one can fruitfully examine the legitimacy of the origins of the case against Trump without knowing the evidence and the charges. Trump’s allegations are of extreme scandal — the use of FBI assets by the Obama administration to impede his presidential campaign. Yet if he is exonerated, those allegations will lose their sting. If he is charged with crimes or impeachable offenses that do not have their origins in politically charged spying, then his allegations will be moot.

But if he were to force the DOJ to turn over raw investigative files now to politicians who want to help him, he might very well be impeding the criminal case against him. That would be profoundly threatening to the rule of law, for it provides that no man can be the prosecutor or the judge in his own case. Even Trump’s lawyers acknowledge that he could not lawfully do that.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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  1. Who killed Seth Rich?

    • Agree: eah
  2. anonymous[340] • Disclaimer says:

    Before accepting anything Mr. Napolitano says about RussiaGate as credible, please take an hour to read critically a few of his columns published here since last November in light of my and others’ comments. Our resident “Freedom Watcher” is a waterboy for the Establishment who should stick to TV if he wants to remain an effective propagandist.

    1. Mr. Napolitano is back this week to Big Lying:

    “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.”

    * “Judge” won’t — because he can’t — cite that “serious and demonstrable evidence of Russian government interference in the 2016 presidential election.”

    * “Judge” won’t — because they aren’t — specify those “Russian intelligence officials.”

    2. Mr. Napolitano, since the breaking of the scandal over actual election interference by FBI, DOJ, and other American government agents, has been running cover and fawning over his feds. The lawyer class, he says, are above reproach; those who would peek behind the curtain, we’re told, are obstructing justice. The last three paragraphs (“Can the president investigate ….”) this week read like Kafka in Classics Illustrated or Weekly Reader.

    3. Mr. Napolitano presents as a principled guardian of the Constitution and the natural rights it has largely failed to protect. Every third or fourth column does that pretty well, in the abstract or safely selected applications. But his smears of and with Russia and flak for his St. Mueller show that his higher loyalty is to those who want to run this country and the world from Washington.

  3. horace says:

    Does Napolitano even qualify as an alternate viewpoint anymore? His columns read like Beltway conventional wisdom with a dusting of legal references.

  4. Which crime is Mueller investigating? Citing the exact crime in the US Code would be handy for clarity. Thank you.

    • Replies: @James Forrestal
  5. “No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in in criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law”, Aikens v. Wisconsin, 195 US 194, 206 (1904) (Holmes, J).
    If the Mueller investigation’s purpose is sedition, all of its acts, FBI raids, you name it, were criminal acts. Is this the Mueller investigation’s purpose? That’s a jury question, Judge.

  6. The Judge is simply wrong. The President is operating within his prerogatives to initiate, interfere with, or terminate any investigation by the DoJ and any Special Prosecuters appointed to operate under it.

    The Constitution did not create DoJ as a separate and independent investigative or enforcement body; DoJ was a creature of Congress, who placed it squarely under the command and control of the Executive, subject to the appointments clause.

    The only body that can pass judgment on a sitting President is Congress under its power to impeach, and then only to decide whether he has committed high-crimes or other misdemeanors for which he should be removed so that appropriate investigation and prosecution may be pursued after he is removed.

    Müller is way out of bounds in practically every way. Trump can shut this down now if he wants to. It would be interesting to see if that would raise the dander of enough in Congress to see him impeached and removed. I suspect it might, so Trump is probably wise to roll with this.

    The more interesting question goes to Trump ordering investigations and prosecutions of wrongdoers connected with investigating or spying on him. Regardless of his mens rea for doing so, he is on firm Constitutional footing to give the order. He certainly has a duty to faithfully execute the laws that the investigators/spies violated. It is simply wrong to say that the President cannot legally investigate and prosecute people investigating him, his actions, and his associates and their actions, but doing so may come with a heavy political price. He can do this at any time, even while being investigated.

    Since it might have the appearance of operating like a banana republic, one can understand Trump’s reluctance to give the order thus far, but in recent days enough has been unearthed to suggest it would now be a righteous call that would withstand the inevitiable calls for impeachment, which might not have been the case only six months ago.

    Can the President obstruct justice? You bet, but there might be a political price to pay … then again, there might not.

  7. eah says:

    He can fucking fire them — they are employees of the Dept of Justice, which is part of the Executive Branch — Trump is head of the Executive Branch; all employees serve at his discretion — Trump should fire all of these people — the majority of the country would support him.

    • Replies: @seeing-thru
  8. @Echoes of History

    Actually, the unredacted mandate for Mueller’s investigation was just released yesterday. Didn’t you see it? It reads, in its entirety, “Show me the man, and I will show you the crime.”

    Hope that helps.

  9. I’m very concerned that Mr. Napolitano is dropping the ball here. He seems to have entirely forgotten the terrible crime at the heart of this investigation. To wit:

    CTRL – F “hack” = “phrase not found”

    That’s strange. What about those evil Rooshian conspirators who hacked into the DNC servers? And Podesta’s devices? You know, Teddy Bear or Cozy Bear or whatever it was? I thought Russians “hacking” the election was supposed to be the original sin of the Russia conspiracy theory. I hope that Mueller hasn’t forgotten about this horrific crime.

    Hey, which federal law enforcement agency did the forensic examination on the DNC servers (and on Podesta’s devices), anyway? Surely some Feds took a look at them… Didn’t they?

  10. Apparently Mr. Napolitano is very much opposed to any kind of foreign influence on US elections. Which foreign countries have the largest influence on US elections, anyway? Would you say that Russia is #1? #5? #10? Or even farther down? What criteria would you use to judge this, anyway? Are there any other foreign countries whose influence we should be worried about?

    For example, if there were numerous Russia/ US dual citizens serving in high positions in the US government, that would be an obvious conflict of interest, and significant cause for concern. Is this the case? Fortunately, I’m not aware of any evidence that there are.

    Are there any other countries which have undue influence on US elections, and on US government policy? That, say, have numerous dual citizens serving in high level positions in the US government? If true, wouldn’t that be cause for concern as well?

    Are there any foreign countries which have well-funded lobbies (that are not required to register as foreign lobbies), whose annual meeting is attended by large numbers of senior US government officials?

    Really makes you think…

  11. Really makes you think…

    Good thing that when the government conducts extensive electronic surveillance of a presidential candidate from the opposition party, it doesn’t count as “election interference” — as long as they’re in the same country.

  12. @eah

    And while at it, he should also boot out – literally boot out – a lot of these fake judges as well.

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