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“I don’t know how you can indict while he’s in office. No matter what it is,” he said.
The President’s attorney said Trump would face impeachment rather than prosecution if he had shot former FBI Director James Comey in the Oval Office to end the Russia probe instead of firing him, which Trump did last May.
“If he shot James Comey, he’d be impeached the next day,” Giuliani said to HuffPost. “Impeach him, and then you can do whatever you want to do to him.”
CNN has reached out to Giuliani for comment.
The opinion that a sitting president is immune from indictment and criminal prosecution because it interferes with his ability to carry out his constitutionally given duties has been the position of the Office of Legal Counsel in the Justice Department since the Nixon administration, and was reaffirmed in the Clinton administration, but it has never been tested in court.
It remains an open question whether, if investigators find potentially criminal evidence against Trump, Mueller’s team will try to challenge these longstanding Justice Department guidelines.
“Were the President to shoot someone, he would be chargeable with the crime of murder under state law, and possibly federal law depending on who was shot,” CNN legal analyst Michael Zeldin, a former assistant to Mueller, told CNN.
According to Zeldin, the Office of Legal Counsel opinion advising the Justice Department on federal prosecution policy “would not bind state prosecutors from proceeding.”
“I disagree with Giuliani and I don’t believe the law favors the position he is articulating,” Zeldin said.
CNN’s Adil Trehan contributed to this report.
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