President Donald Trump faces the prospect of being charged with three separate crimes and could be indicted while serving as president, Fox News's senior judicial analyst Andrew Napolitano said Monday. In a sentencing memo for Trump's former longtime personal lawyer Michael Cohen on Friday, prosecutors from the Southern District of New York concluded that Trump directed Cohen to commit two campaign finance violations.
Trump has not been charged with any crime, and there has been much conjecture about whether a sitting president can be indicted. Justice Department memos issued amid impeachment proceedings against former Presidents Richard Nixon and Bill Clinton recommended that sitting presidents should not be subject to indictments because of the importance of their responsibilities in running the country.
The matter has never been decided by the Supreme Court, however, and Napolitano said that he believed prosecutors could press ahead with an indictment, although Trump would not be prosecuted until after he left office.
"My view is that he can be indicted but cannot be prosecuted until leaving office because the disruption to the government of the prosecution would be far more than the Constitution tolerates," Napolitano said.
Rudy Giuliani, Trump's personal lawyer, has already said that if Trump were subpoenaed by special counsel Robert Mueller's team, they would take the matter all the way to the Supreme Court. Napolitano, a former judge, added that a Trump indictment could lead to another lengthy legal battle.
"I think they'll fight both all the way to the Supreme Court," he said on Trump's favorite cable news network. "They'll lose on the subpoena because the Supreme Court has already ruled on that. I don't know where they'll go on the indictment, if an indictment comes."
Following Friday's filing, Trump falsely claimed in a tweet that it "Totally clears the President." Since then, Trump has continued to claim that the whole investigation is part of a "witch hunt."
Napolitano, though, warned both Trump and Giuliani about trying to brush aside the latest bombshell development.
"I believe that the president and Rudy mock the government at their peril," he said. "That's how serious these allegations are."
Indeed, said Napolitano, Trump could face even more legal peril than Cohen over the campaign finance violations, which center on payments made to two women to ensure their silence about alleged affairs with Trump, before the 2016 election.
"He is on their radar screen for paying someone to commit a crime, which in itself is three crimes," Napolitano said. "It's the crime, it's conspiracy to commit the crime and it's procuring someone to commit a crime. So he's actually, if all this is correct and they have the evidence for it, exposed to more criminal activity than Michael Cohen."
