Andrew Napolitano: Mueller dropped the ball -- by not indicting Trump

Does this guy appear on Fox News during primetime anymore? I know he appears dayside, frequently in Shep’s hour, and I see him a bunch on Fox Business.

I can’t imagine him fitting in after 8 p.m., though, given the drift in his views that the president’s behavior during Russiagate was criminally, ah, “problematic.”

But we can turn that around. If Fox was interested in marginalizing him for his views, why would the network continue to sponsor and host these brief video indictments of Trump on its own online platform? This is something he could do on his own time, on his own YouTube channel if he felt he wasn’t being given enough airtime on television to make the case that Trump broke the law. Instead the president’s favorite network lends him their Internet soapbox, no doubt amplifying his message considerably. Is it a contractual thing, maybe? Surely Fox management would retain some editorial control even if it agreed to a certain number of online videos by Napolitano.

Maybe this is a small hedge against the criticism that they’re in the tank for Trump. “Nuh uh,” Fox execs can say. “Have you ever watched Judge Napolitano’s Chambers?”

His point here is simple: There’s nothing in law that states definitively that a sitting president can’t be indicted. It may be the position of the Justice Department but there’s no constitutional clause, federal statute, or court ruling (yet) that places an incumbent chief executive effectively beyond the reach of the U.S. Code. Which may be true, but the response is equally simple. It would be really, really inadvisable to force a sitting president to try to govern the country and manage American interests abroad in the shadow of a standing indictment. Every decision he made would come with the caveat that he might be carted off to prison soon or, if the trial is postponed until after his term ends, that he might at least be doomed to be a one-termer due to public outrage at the fact of his indictment. A reelection campaign would be destined to become a referendum on whether the president should be turned out of office so that the DOJ can get to work on locking him up.

Napolitano notes correctly near the end that there’s a distinction to be made between law and politics. Politically, Trump remains in jeopardy from Russiagate due to impeachment. Legally, now that he’s been cleared by Mueller of conspiracy and by Barr of obstruction, he’s free. Right, but if Mueller followed Napolitano’s advice and indicted Trump, those two would be intertwined. Mueller’s legal determination on obstruction would have all but compelled Democrats to make a political decision to impeach him. Conversely, Mueller’s legal determination that Trump didn’t collude has killed the political momentum for impeachment on those grounds. Letting the DOJ take the lead on assessing the president’s criminal culpability inevitably means that unelected officials of the executive branch will set the political parameters of action by elected legislators. Better to let Congress take the lead in the future and have the DOJ follow with a rule that, unless and until Congress has removed the president from office, the Justice Department can’t charge him. That doesn’t mean POTUS is above the law. It simply means that Congress is the chief enforcer.