Michael Avenatti (AP/Mary Altaffer)

Michael Avenatti makes the case for indicting President Donald Trump: "No one is above the law"

"The fact that Mr. Trump is a sitting president should not derail a process that applies to all Americans"


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Shira Tarlo
September 14, 2018 8:52PM (UTC)

Michael Avenatti, the high-profile attorney representing adult-film star Stormy Daniels in her case against President Donald Trump and his his former personal lawyer Michael Cohen, asserts in a new op-ed that the commander-in-chief could be indicted, despite a long-standing Justice Department position.

"The fact that Mr. Trump is a sitting president should not derail a process that applies to all Americans, regardless of stature or station," Avenatti wrote in an op-ed published Thursday by The New York Times. "He would still have the post-indictment relief available to all citizens, including the ability to challenge the constitutionality of the indictment."

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"Some also argue that indicting the president would critically impair his ability to lead the country. But this is a White House already engulfed in chaos and daily distractions," he continued. "And if the House were to initiate impeachment proceedings, it is hard to see how that process would be any less distracting than a criminal indictment."

Referencing constitutional scholars of all political stripes, Avenatti claimed that indicting a sitting president is possible since the Supreme Court has never definitively ruled it out.

Avenatti's op-ed comes several days after Ken Star, the former independent counsel who during the Whitewater and Monica Lewinsky investigations of President Bill Clinton, said he thought sitting presidents are not immune from prosecution while in office. 

"No one is above the law," Starr said on MSNBC Wednesday, citing the decision outlined by the 1997 Supreme Court Clinton v. Jones, which established that a sitting president is not protected from civil litigation while in office.

Avenatti cited Starr's remark in his op-ed, writing that prosecutors "must be blind to the officeholder's position."

"[I]f the facts and evidence are adequate for indictment, then prosecutors must be blind to the officeholder's position — especially so in this case because, unlike in President Clinton's case, the investigations relate to how Mr. Trump won the election," Avenatti wrote. "Ultimately, the question would almost certainly be decided by a panel of judges previously confirmed pursuant to the Constitution — either in the courts of appeals or, more appropriately, the Supreme Court."

The attorney, who is considering a presidential run in 2020, expressed concern about Judge Brett Kavanaugh and his stance on presidential immunity after Trump's Supreme Court nominee deflected questions in the lead up to a Senate confirmation vote over whether he would recuse himself in such cases involving Trump.

"Should Mr. Trump be indicted and in the event that the case reaches the Supreme Court, Judge Kavanaugh's recusal should be mandatory," Avenatti wrote. "The American public's view of impartiality of the rule of law and of the Supreme Court hangs in the balance."

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Shira Tarlo

Contact Shira Tarlo at shira.tarlo@salon.com. Follow @shiratarlo.

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