Prosecutorial discretion is - well - a matter of discretion. A court will not order a prosecutor to bring a charge.

If Mueller believes that he lacks the legal authority to seek an indictment of the President, he ethically ought not ask the grand jury to indict. It's possible, albeit unlikely, that a grand jury could return an indictment over the prosecutor's objection. Grand juries will generally follow the legal advise of the prosecutor.

I personally see nothing in the Constitution to say a sitting President cannot be indicted. However, lawyers who are better constitutional experts than I think it an open question. My perception is that Mueller is enough of a "company man" that he will follow existing DoJ Office of Legal Counsel opinions that an indictment would not be appropriate and that the only available remedy is impeachment.

I think that if Mueller and the grand jury believe there has been a crime, there ought to be an indictment to get a SCOTUS ruling on the question whether a sitting President can be indicted - that's the only way to have a definitive answer to the question. However, my bet is that Mueller will follow the DoJ opinion.

Make no mistake. Trump's lawyers are not telling him what to do. He ignores his lawyers all the time. Trump does not want to answer any questions. Mueller has no cards to play except a subpoena. Then, Trump will ignore that. It's a challenge to the rule of law in our country.

I agree with your last paragraph.


https://www.democraticunderground.com/100210451995

If Trump ignores or defies a subpoena, I would expect the courts to order him to appear. If he ignores or defies a court order, it will be the clearest possible statement that he believes himself above the law. If Congress does not then impeach in the House and the Senate convict, then the Republic is over.

In my opinion, if Mueller believes that a "sitting President" cannot be indicted, then he should refer it to the Supreme Court. If one person, even the President, is exempt from the laws of this country, then we may as well declare this experiment over. It should be forced upon the Court.

Unfortunately, the only way to force the issue on SCOTUS is for the grand jury to subpoena - Trump refuse to comply - the District Court rule - the Circuit Court of Appeals rule - only then will SCOTUS rule. (It is possible SCOTUS could reach down and take the case from the lower courts but that is unlikely.) It seems unlikely this would happen quickly.

My hope is that Trump would decide it would be politically untenable to defy a subpoena. However, I think if I was Trump's lawyer (God forbid), I would advise defying the subpoena and slow walk my way through the courts. If Trump ever appeared in front of a grand jury - whether sooner or later - I would advise him to plead the Fifth Amendment, the politics be damned.