If Mueller and Trump's attorneys are discussing whether or not the president can be subpoenaed or indicted, Mueller is probably of the opinion that he has enough evidence for an indictment. This is likely an issue the nation will have to face.
We are in unchartered territory with the Trump presidency. No previous president has been accused of conspiring with a foreign adversary to undermine a presidential election and our democracy, which could result in illegally obtaining the office of the presidency and possibly committing treason.
Although Nixon, by breaking into the DNC headquarters at the Watergate Hotel, could be accused of undermining the election in 1972, that break-in did not involve a foreign adversary. Does conspiring with a foreign adversary make it so egregious that Justice Department guidelines cannot be followed without destroying the concept of the rule of law?
Does interfering with the official duties of the president in order to indict a sitting president, outweigh allowing a president who has committed treason to even carry out the official duties of the president?
The Justice Department memos Giuliani referenced were written during the Nixon and Bill Clinton administrations, amid the Watergate and Monica Lewinsky scandals.
The first memo, “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office,” was produced by the Justice Department’s Office of Legal Counsel in September 1973.
“The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination,” it reads.
The Office of Legal Counsel noted that the constitution specifically provides some immunity from prosecution to lawmakers but says nothing about the president being immune.
However, the Office of Legal Counsel concluded that the president’s powers and responsibilities were so vast and unique that an indictment would pose too many risks to the proper functioning of government. Here are two key passages:
“A necessity to defend a criminal trial and to attend court in connection with it … would interfere with the President’s unique official duties, most of which cannot be performed by anyone else. It might be suggested that the same is true with the defense of impeachment proceedings; but this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process. The Constitutional Convention was aware of this problem but rejected a proposal that the President should be suspended upon impeachment by the House until acquitted by the Senate. …
“To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs. It is not to be forgotten that the modern Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries.”
The author, then-Assistant Attorney General Robert G. Dixon Jr., flagged some other quirks: unlike other defendants, the president could invoke executive privilege and has the pardon power.