Sen. Richard Blumenthal

Xinhua/Sipa USA

Blumenthal Says Trump Is 'Unindicted Co-Conspirator,' Believes A President Can Be Indicted

August 22, 2018 - 2:30 pm

HARTFORD, Conn. (WCBS 880/AP) -- After the guilty verdicts in the trial of former Trump campaign chairman Paul Manafort, and the guilty plea by President Donald Trump’s former attorney Michael Cohen, U.S. Sen. Richard Blumenthal (D-Connecticut) said confirmation hearings for Supreme Court nominee Brett Kavanaugh should be delayed.

Speaking to WCBS 880’s Steve Scott, Blumenthal called President Donald Trump an “unindicted co-conspirator” and said he believes a sitting president can be indicted.

Trump announced Kavanaugh’s nomination in July, after Justice Anthony Kennedy announced he was retiring. Senate Majority Leader Mitch McConnell (R-Kentucky) has predicted a confirmation vote for Kavanaugh before the midterm elections.

But Blumenthal said Kavanaugh’s nomination is now tainted.

 “Brett Kavanaugh has been nominated by a president who is directly implicated in very, very serious criminal wrongdoing. He’s been identified as an unnamed, unindicted co-conspirator. If he were anyone except the President of the United States, he would have been indicted,” Blumenthal said. “And so this nomination should be postponed by the Judiciary Committee. The hearings should be delayed so that we can consider whether or not to move forward with the nomination, and also investigate the serious criminal wrongdoing that is involved, because we have that responsibility.”

Blumenthal said the point is not to drag out the confirmation hearing until after the midterm election in case Democrats win control the Senate. He said the issue is that circumstances of the Trump presidency are just too “extraordinary” right now.

“We’re in a Watergate moment, literally, when democracy is at risk because a president has been named as an unindicted co-conspirator. Not since Watergate has there been such an occurrence, and so we should be focusing on the rule of law, bringing to justice anyone who has violated that law, and making sure that the next nominee for the United States Supreme Court is untainted by any kind of impropriety or illegality, and right now, Brett Kavanaugh, inevitably, will be tainted, and will in effect stain the decision of the Supreme Court if this nomination is simply rushed through the process,” Blumenthal said.

When asked whether he thought President Trump should be impeached, Blumenthal said he believes a sitting president can be indicted.

“Before we decide what the right remedy is, there should be a conclusion to the ongoing special counsel investigation. (Special Counsel Robert Mueller) should be permitted to follow the facts. The American people should know them. That’s when the decision about the right remedy should be reached, and it may include indictment. I believe the President of the United States can be indicted. There is a legal question about it. But the trial could be postponed – any burden on the presidency alleviated that way,” Blumenthal said. “And so indictment of the president should be on the table as a potential remedy.”

Blumenthal, an attorney and a former Connecticut attorney general, said there is nothing in the U.S. Constitution that precludes the indictment of a sitting president.

“If anyone except Donald Trump, the president, were named as a conspirator with the evidence there is for law breaking as a result of the Cohen plea agreement, he would be indicted,” he said, “and there is a serious legal question, but at the end of the day, I believe a sitting president can be indicted even if the trial is postponed, so there’s no burden, or no undue burden of the presidency.”

As to the concerns about the country being thrown into more chaos if Trump were indicted, Blumenthal said various factors would have to be considered – including “the seriousness of the criminal violation, the burden on the presidency, the threat to the rule of law if there is no indictment, and – as important as anything – the statute of limitations” to determine whether an indictment can be postponed.

It is a decision for the special counsel and only the special counsel, Blumenthal said.

“There are a number of factors that have to be considered by the special counsel – not a decision for Congress to make, because we don’t indict,” Blumenthal said. “That’s a prosecutorial decision made by the Department of Justice, and it will have to be made with very, very serious and weighty consideration of the potential impacts on the country. Legally though, in my view, the Constitution in no way bars it.”

Legal experts weighed in Wednesday about whether Blumenthal is correct in his belief that a sitting president can be indicted. CBS News Legal Analyst Thane Rosenbaum said he was surprised that Blumenthal made such a statement.

“I think it would be unprecedented for a sitting president to be indicted under criminal charges. A civil case is something else, as you know. Bill Clinton learned that during the Paula Jones case. But an indictment – a criminal indictment – I think would be extremely unprecedented,” Rosenbaum said.

Meanwhile, defense attorney Joey Jackson said Blumenthal is technically right that a sitting president can be indicted, “but practically, he’s incorrect.”

“Let’s go to the heart of the matter – the Department of Justice guidance which says that you are not to indict a sitting president; that instead, there’s an alternative process. So while he is correct, that is, the senator, and as much as there’s no law or constitutional mandate, the Department of Justice has said they will not do it, and Mueller, who is in charge of the investigation, says he won’t do it,” Jackson said.

Jackson said impeachment has been deemed the proper method for prosecuting a president.

“That process provides for the House of Representatives, which is composed of 435 members, to draft up and pass articles of impeachment. You might remember, as it relates to Bill Clinton 20 years ago, that’s what happened to him. The House of Representatives, then controlled by Republicans, drafted articles of impeachment. They impeached President Clinton. And then it goes to the Senate. And the Senate then by two thirds, or 67 of 100 senators, would have to convict and remove him from office,” Jackson explained. “That remains the process now.”

Jackson said impeachment proceedings for Trump are not likely with the House of Representatives in Republican hands. But if that changes in November, Jackson said, “you could very well see this president impeached.”

Jackson emphasized that impeachment unto itself does not remove a president from office.

“He’s only removed if the Senate, after a trial, has 67 senators to remove him. And that’s what it takes,” he said. “That’s a heavy lift indeed.”

But Rosenbaum said he does not see any evidence that has been presented so far that would rise to the level of grounds for indictment, or impeachment, for Trump.

“President Trump, to my mind, still has much more of a political problem than a legal problem. If I was a Republican running in the midterm elections, I would be really unhappy right now. If I was President Trump, who continues to boast that he hires the best people, I would think that people are going to consider me to be a liar. At this point, I’ve been implicated in a criminal conspiracy in the 2016 election in paying off hush money – hush money that I claimed I didn’t know anything about – these are political issues,” he said.

But as to the legal question, no evidentiary material has been presented that is “impeachable in any way,” Rosenbaum said.

“We do not have a criminal conspiracy in connection with the Russian meddling of the 2016 presidential election. We don’t really have, right now, in terms of the Mueller probe, actual evidence of obstruction of justice, although we can all surmise and point to certain moments – tweets, per se – that might be obstruction. But those are the two big-ticket items,” Rosenbaum said. “And until we see those items – criminal conspiracy and interfering in the presidential election of 2016 – and actual evidence of collusion and obstruction of justice – I think we’re talking about crimes that don’t rise to the level of impeachment yet.”

Trump on Wednesday accused Cohen of making up "stories in order to get a 'deal'" from federal prosecutors. Cohen pleaded guilty to campaign finance violations that the lawyer said he carried out in coordination with Trump.

"If anyone is looking for a good lawyer, I would strongly suggest that you don't retain the services of Michael Cohen!" Trump tweeted Wednesday.

In a split screen for the history books, Cohen's admission to the crimes in federal court in New York on Tuesday came at nearly the same moment that Manafort was convicted by a jury in Virginia of financial misdeeds. Manafort faces separate charges in September in the District of Columbia that include acting as a foreign agent.

The back-to-back blows resulted from the work of Mueller, who is investigating Russia's attempts to sway voters in the 2016 election, including hacking Democrats' emails, whether the Trump campaign may have cooperated, and if the president himself obstructed justice in investigating both.

(© 2018 WCBS 880. The Associated Press contributed to this report.)