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Schiff: DOJ should re-examine guidance

Rep. Adam Schiff (D-CA) says the Department of Justice should re-examine the guidance that a sitting president cannot be indicted.

Posted: Dec 13, 2018 1:57 PM
Updated: Dec 13, 2018 2:02 PM

Rep. Adam Schiff argued Wednesday that the Department of Justice "needs to re-examine" the Office of Legal Counsel's opinion that a sitting US president should not be indicted.

"I think the Justice Department needs to re-examine that OLC opinion, the Office of Legal Counsel opinion, that you cannot indict a sitting president under circumstances in which the failure to do so may mean that person escapes justice," Schiff said Wednesday in an interview on CNN's "Situation Room with Wolf Blitzer."

Schiff, the likely incoming chairman of the House Intelligence Committee, told CNN there should be an exception to the Office of Legal Counsel's opinion if a president leaves office and "can no longer be brought to justice."

"I don't think that the Justice Department ought to take the position -- and it's certainly not one that would be required in any way by the Constitution -- that a president merely by being in office can be above the law ... by waiting out the statute of limitations," Schiff told CNN.

That a sitting president cannot be indicted has been the position of the Office of Legal Counsel since the Nixon administration and was reaffirmed in the Clinton administration, but it has never been tested in court.

The office's guidance, issued in 2000, says: "The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions."

It had been an open question whether, if investigators found potentially criminal evidence against President Donald Trump, special counsel Robert Mueller's team would try to challenge those Justice Department guidelines.

Schiff told CNN it's "very likely" that Mueller will adhere to the guidance. Trump lawyer Rudy Giuliani told CNN in May that Mueller's team had conveyed to Trump's lawyers that it has concluded it cannot indict a sitting president.

Schiff's comments came the same day that Trump's former lawyer Michael Cohen was sentenced to three years in prison. Cohen had pleaded guilty to nine criminal counts, including two campaign finance violations tied to hush money paid to women who alleged affairs with Trump, which Cohen says he made at Trump's behest.

Sen. Richard Blumenthal, who sits on the Senate Judiciary Committee, told CNN Wednesday that he'll be asking the Office of Legal Counsel "for an opinion that in effect retracts its prior opinion indicating that the president cannot be indicted."

"I believe very strongly that the president, himself, can be indicted," the Connecticut Democrat said in an interview on CNN's "Anderson Cooper 360."

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