Judge Andrew Napolitano pushed back against Rudy Giuliani’s claims that President TrumpDonald John TrumpGiuliani says FBI may have placed spy in Trump campaign Giuliani: There is ‘nothing illegal about looking for dirt on political opponents’ Giuliani: If Mueller subpoenas us, we will challenge it MORE cannot be indicted in the Russia investigation, saying Thursday on Fox Business Network that the president is “not above the law.”
Giuliani, a member of Trump’s legal team, told CNN on Wednesday that special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE ‘s team told Trump’s lawyers that they cannot indict a sitting president, which Napolitano said was not explicitly true.
“The president is not above the law,” he said. “He can be indicted like anybody else.”
Napolitano referenced what he said are two Justice Department memoranda that offer contradicting conclusions on whether or not a sitting president can be indicted. The most recent, issued after the impeachment of former President Clinton, says that evidence of crimes by a sitting president must be sent to the House.
Napolitano said that the same team wrote another memo one year earlier that says a sitting president can be indicted. That memo was unearthed by the New York Times in 2017, and contradicts the generally-accepted view that presidents cannot be indicted.
“They can’t indict. At least they acknowledged that to us after some battling, they acknowledged that to us,” Giuliani said to CNN.
Napolitano, who Trump once called a “talented legal mind,” also said that Trump can be subpoenaed, according to a Supreme Court decision.
“In terms of subpoenaing, I respectfully would invite Mayor Giuliani’s attention to a Supreme Court opinion called ‘United States vs. Nixon’ which upholds the authority of the Justice Department to subpoena the president of the United States,” he said.
Napolitano added that while he and other lawyers have advised that Trump not sit down with Mueller for an interview, that leaves open the door for Mueller to subpoena Trump for an appearance before a grand jury.
“He will not have his lawyers there whispering in his year,” Napolitano said. “He’ll be totally exposed to the grand jurors and the prosecutors.”
Trump’s team has not yet said explicitly whether the president will sit with Mueller for an interview.