Judge Andrew Napolitano, a longtime friend of President Donald Trump and a Fox News personality, told anchor Shepard Smith on Monday that the White House occupant could already be under secret indictment for allegedly conspiring with lawyer Michael Cohen to break campaign finance law in order to hush up women with whom he may have had affairs.
"There's ample evidence — this doesn't require too much analysis — to indict the president," Napolitano told Smith. "The question is, do they want to do it? The DOJ has three opinions on this: Two say you can't indict a sitting president, one says you can. But all three address the problem of, what do you do when the statute of limitations is about to expire? All three agree in that circumstance you indict in secret, keep the indictment sealed and release it the day he gets out of office. You can't let a person go scot-free because they happen to be in the White House."
When Smith asked whether Napolitano was saying that the president had already been indicted, the judge responded: "that I don't know about, but he could be, because we don't know what's been sealed."
Earlier in the interview, Napolitano speculated that the president may already be an unindicted co-conspirator.
He also discussed the president's current legal strategy. The judge speculated that Rudy Giuliani, the president's lawyer as well as a former New York City mayor, has been saying he would never allow the president to speak with Robert Mueller — and, additionally, has been trying to turn public opinion against the special counsel — in order to negotiate better terms for his client. According to Napolitano's theory, Giuliani is concerned that Trump could put himself in trouble if he gets subpoenaed or testifies before a grand jury. Giuliani would, according to this strategic logic, prefer to placate Mueller in a way that doesn't legally imperil his client.
Napolitano struck a contrast between Giuliani's approach in helping Trump and the strategy employed by President Bill Clinton when he was facing his own legal scandal in the 1990s.
"Bill Clinton was interrogated before a grand jury and he chose to have it on live national television so that there'd be no dispute about what he said," Napolitano told Smith. "And he had it done in the White House. The grand jury was not there, but the prosecutors were, and then that tape was played for the grand jury immediately."