A prosecutor can decline to indict, but (contra Judge Nap) a prosecutor cannot actually indict and then not proceed to prosecute

Good until 2:09+.

Napolitano:“Surely an indictment could be had and maybe they’re not going to actually prosecute the indictment until after the president leaves office.“ 1/9

Judge Napolitano: Mueller stirs the pot and the Dems have a decision to make regarding impeachmentJudge Napolitano’s Chambers: Judge Andrew Napolitano explains how former Special Counsel Robert Mueller presented the facts that President Trump obstructed justice, why Mueller dropped the ball and h…https://tinyurl.com/y5yj2er5

According to @Judgenap, Mueller should have indicted, even in the (possible) absence of a decision to prosecute.

But isn’t a president who isn’t prosecuted after actually being INDICTED also above the law? 2/9

Mueller certainly didn’t say that Trump wasn’t prosecutable. On the contrary, he clearly implied that he was prosecutable for obstruction of justice, but not as long as he holds the office of the presidency. 3/9

A prosecutor can DECLINE to indict (for a number of reasons), even when the prosecutor believes the individual is guilty and *deserves* to be indicted, 4/9

but a prosecutor cannot PROCEED TO INDICT and NOT prosecute, b/c an indictment is an ASSERTION by law enforcement (whether sealed or not) of a necessary connection between the evidence, an alleged crime, and alleged guilt — and therefore (necessarily) a decision to prosecute. 5/9

Note that Barr’s latest position (who knows what it really was before or since) is that Mueller could have *reported* (a recommendation of) an indictment, even though according to Barr a sitting president cannot be either prosecuted OR indicted. 6/9

We should stop trying to make sense of Attorney General William Barr’s legal opinions@rgoodlaw has an interesting take on Barr’s prepared remarks before the Senate Judiciary Committee today. 1/35 Barr’s Statement to Senate: A Sitting President is Not Immune from Prosecutor…https://tinyurl.com/y2yvwfze

Barr’s position is clearly untenable, but Napolitano’s doesn’t work either. 7/9

It is possible to argue that a sitting president can be indicted (and if so, necessarily prosecuted) while in office. Or one can argue (as the OLC opinion and Mueller/Dreeben do) that he can be neither indicted nor prosecuted while in office, 8/9

though he can be investigated and the evidence gathered can be used against him by Congress (impeachment) or by federal prosecutors in a judicial trial when he is out of office.

But there is no middle ground. 9/9