State Prosecutors ‘Can And Should’ Indict Donald Trump Even If Feds Cannot, Says Former Federal Prosecutor

With Robert Mueller and other federal prosecutors barred from indicting Donald Trump under a Justice Department rule, state prosecutors should move ahead with cases against Trump, says Glenn Kirschner.

Donald and Melania Trump return to the White House.
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With Robert Mueller and other federal prosecutors barred from indicting Donald Trump under a Justice Department rule, state prosecutors should move ahead with cases against Trump, says Glenn Kirschner.

When he issued the report on investigation into Donald Trump’s alleged Russia ties and potential obstruction of justice, special counsel Robert Mueller declined to issue an indictment of Trump, citing a previous Justice Department opinion stating that anyone who currently occupies the office of the presidency is immune from criminal indictment, per TIME.

On Tuesday, one former federal prosecutor said that if the Justice Department is unwilling to indict Trump, due to the Justice Department memo — which may be read online via DocumentCloud — then prosecutors at the state level “can and should” proceed with indictments of Trump. That is, if they have collected “sufficient evidence to charge Trump with state crimes.”

“Let’s get this justice show on the road,” said experienced federal prosecutor Glenn Kirschner, who is now an expert legal commentator for MSNBC, on his Twitter account.

According to an inventory compiled by the local news site City & State New York, Trump is currently facing multiple criminal probes in New York, his home state.

Amidst those investigations, New York state Attorney General Letitia James has issued subpoenas to Deutsche Bank, probing allegations that Trump lied about the value of his financial assets in order to obtain hundreds of million in bank loans, according to The New York Times.

New York’s tax department is also examining whether Trump has systematically engaged in massive tax fraud for decades, according to NBC News, following a blockbuster exposé on Trump’s tax filings compiled by The New York Times.

Trump and his associates, including former campaign manager Paul Manafort and former lawyer Michael Cohen, face several other New York state investigations into alleged financial misdeeds, as well. Both Manafort and Cohen are currently incarcerated.

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“If state court prosecutors have sufficient evidence to prove Trump committed crimes that violate state law, then the state prosecutors can and should indict him,” Kirschner wrote on Twitter.

Kirschner cautioned, however, that Trump and his legal team would almost certainly challenge any such state-level indictment by invoking the “supremacy clause” in Article VI of the United States Constitution. The clause, as explained by Constitution Center, states that federal laws are “supreme” over state laws, so that when state and federal laws conflict, the federal law takes precedence.

But — presumably because the Justice Department memo preventing indictment of a current president is merely a department policy, and not a federal law — “the Constitution’s supremacy clause isn’t directly applicable,” Kirschner wrote on his Twitter feed.