After getting basic facts about the impeachment process wrong – twice – MSNBC anchor Ali Velshi decided to move on from the topic on Tuesday, instead plotting with a liberal law professor on how state Democratic officials could indict President Trump and avoid an uphill impeachment battle in Congress completely.
“So I want to take a look at where this supposed immunity from indictment comes from for a sitting president,” Velshi told viewers at the top of the 11:00 a.m. ET hour segment. He explained: “The United States Constitution lays out a way to remove a president from office, impeachment. But it is silent on the criminal prosecution of a president.”
Citing how the Justice Department’s Office of Legal Counsel has twice upheld the principle that a sitting president of the United States cannot be indicted because it “would undermine the entire executive branch’s function,” Velshi eagerly touted a tenuous loophole to get around the opinion:
But consider this, these memos and guidelines, according to the OLC website itself, provide – say that they’re there to provide “legal advice to the President and all executive branch agencies.” So outside the executive branch of the federal government, there might be another way to do this.
An office with the power to bring an indictment could feasibly bring one against the President, that’s according to Yale Law Professor Oona Hathaway. An office like a state attorney general, for example. New York’s Attorney General Barbara Underwood, who’s office is currently suing the Trump Foundation for, quote, “persistent violations of state and federal law.”
Hathaway then joined Velshi on the program to elaborate on her legal theory. The anchor teed her up to advocate the approach to take down Trump: “Explain to me the way in which a state attorney general, like Barbara Underwood or like [Pennsylvania Attorney General] Josh [Shapiro], who we just had in here, might work around this prohibition or this guideline against indicting a president?”
Hathaway responded:
Yeah, so as you mentioned, the Office of Legal Counsel memos are binding within the executive branch, but they’re not binding on anybody else. And so, a state attorney general, for instance, could bring charges against the President while he’s in office and would not be prohibited from doing that by the Office of Legal Counsel memos.
After she acknowledged that the government would still cite those memos in any courtroom proceeding, Velshi followed up: “In the article that I read that was so interesting about this, you make a point that whether or not this is likely, it’s more likely or more reasonable a thing to consider than impeachment?”
Hathaway doubled down on that assertion as she complained about how difficult it was to actually remove a president from office through impeachment:
Well, so the problem with impeachment is just, it’s really hard, right? So you have to get a majority of the House. Right now, of course, that’s Republican, so they’re not going to impeach. Even if the House switches to Democrats, and the Democrats do impeach, you have to then go to the Senate for conviction. In the Senate, you have to get two thirds of the senators to vote in favor of impeachment....it’s extraordinarily difficult. It’s hard to get two-thirds of senators to agree on anything. And impeachment is just so explosive, it’s hard to imagine that would happen. Unless something much worse comes out, and that’s always possible, so, you know, never say never, but it seems unlikely at this moment.
Hathaway’s eagerness to get a Republican president removed from office becomes more understandable when one examines her political contributions over the past decade. From 2008 up through 2016, the Yale Law professor donated a total of $4,500 to the campaigns of various Democrats running for office at the state and national level. In 2008, she gave $1,500 to Barack Obama’s presidential campaign. In 2016, she wrote a $500 check to the Hillary Clinton campaign.
Velshi never asked about her political leanings, he simply presented her as an objective legal expert.
Here is a transcript of the August 28 segment:
11:47 AM ET
ALI VELSHI: Alright, it’s been months since presidential lawyer Rudy Giuliani told NBC News that Special Counsel Robert Mueller’s team has acknowledged it cannot indict a sitting president. But Trump’s former personal lawyer, Michael Cohen, alleged in federal court last week that then-candidate Trump directed him to make or arrange hush money payments to women, saying it was in hopes of influencing the 2016 election.
So I want to take a look at where this supposed immunity from indictment comes from for a sitting president. The United States Constitution lays out a way to remove a president from office, impeachment. But it is silent on the criminal prosecution of a president. Remember, impeachment is something that takes place in Congress, not in the courts.
In 1973, at the height of the Watergate scandal, the Justice Department’s Office of Legal Counsel, or OLC, issued an opinion that criminal proceedings damaged the President’s ability to do his job and shouldn’t be brought while he’s in office. Another OLC memo, about 27 years later, reinforced that original argument, saying the indictment of a sitting president would undermine the entire executive branch’s function.
But federal guidelines allow for something called “extraordinary circumstances,” allowing Mueller, if he found such circumstances, to request a pass from the Deputy Attorney General Rod Rosenstein to go against policy and indict the President. That, barring something truly Earth shaking, is unlikely.
But consider this, these memos and guidelines, according to the OLC website itself, provide – say that they’re there to provide “legal advice to the President and all executive branch agencies.” So outside the executive branch of the federal government, there might be another way to do this.
An office with the power to bring an indictment could feasibly bring one against the President, that’s according to Yale Law Professor Oona Hathaway. An office like a state attorney general, for example. New York’s Attorney General Barbara Underwood, who’s office is currently suing the Trump Foundation for, quote, “persistent violations of state and federal law.”
Joining me now is Oona Hathaway of the Yale University Law School because I figured let’s bring you in since you’ve been writing about this. Great to have you here. Explain to me the way in which a state attorney general, like Barbara Underwood or like [Pennsylvania Attorney General] Josh [Shapiro], who we just had in here, might work around this prohibition or this guideline against indicting a president?
OONA HATHAWAY [YALE UNIVERSITY LAW PROFESSOR]: Yeah, so as you mentioned, the Office of Legal Counsel memos are binding within the executive branch, but they’re not binding on anybody else. And so, a state attorney general, for instance, could bring charges against the President while he’s in office and would not be prohibited from doing that by the Office of Legal Counsel memos.
VELSHI: And I would assume at that point the government would be in court and a court would have to decide and why wouldn’t the government point to this Office of Legal Counsel memo in which it said “the indictment of a criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” So while Barbara Underwood or a state attorney general wouldn’t be bound by that guidance, would the government's argument not be the same?
HATHAWAY: It would be the same, certainly it would. And they would certainly point to the Office of Legal Counsel opinions and say, “Look, you know, this has been decided twice by previous administrations.” But that’s not binding on the courts either. So the courts get to reassess the question...
VELSHI: Got it.
HATHAWAY: ...on their own and decide whether they agree with the Office of Legal Counsel determination on this question. Now, you have to remember, the Office of Legal Counsel lawyers are effectively the President’s lawyers, right?
VELSHI: Got it.
HATHAWAY: So they’re making a decision for the executive branch, and they are looking at the law and they’re trying to render their best opinion, but they are acting as executive branch lawyers. So a court is going to come in with a more objective position, it’s going to look at all the law and the facts and make a determination in that case as to whether to let the case go forward.
VELSHI: In the article that I read that was so interesting about this, you make a point that whether or not this is likely, it’s more likely or more reasonable a thing to consider than impeachment?
HATHAWAY: Well, so the problem with impeachment is just, it’s really hard, right? So you have to get a majority of the House. Right now, of course, that’s Republican, so they’re not going to impeach. Even if the House switches to Democrats, and the Democrats do impeach, you have to then go to the Senate for conviction. In the Senate, you have to get two thirds of the senators to vote in favor of impeachment.
VELSHI: Right, it’s like a constitutional amendment.
HATHAWAY: That’s right, and it’s extraordinarily difficult. It’s hard to get two-thirds of senators to agree on anything. And impeachment is just so explosive, it’s hard to imagine that would happen. Unless something much worse comes out, and that’s always possible, so, you know, never say never, but it seems unlikely at this moment.
VELSHI: Oona Hathaway, thank you for joining us and explaining this. Oona Hathaway is a professor at the Yale University School of Law.
